A TREATISE 
ON THE LAWS REGULATING THE MANUFACTURE 
AND SALE OF 
INTOXICATING LIQUORS 
By HENRY CAMPBELL BLACK, M. A. 
Author of "Black's Law Dictionary" and of treatises on "Judgments," "Tax 
Titles," "Constitutional Prohibitions," Etc. 
SAINT PAUL, MINN. 
WEST PUBLISHING COMPANY 
1892 Copyright, 1892 
BY 
H. CAMPBELL BLACK. PREFACE. 
Ir is a striking and significant fact that of all the reported cases, civil and 
criminal, arising under the laws regulating the manufacture and sale of 
intoxicating liquors, a very large proportion have been decided within a 
recent period. Of the whole number of authorities cited in the following 
pages, fully one-half have been ruled within the last decade, and prob- 
ably one-third within the last five years. Now the rate of growth and 
development of the case-law on any given branch of the law, at least 
when it is as rapid and widespread as in the instance of the present sub- 
ject, is a reliable indication of its increasing interest and importance. 
And this phenomenon cannot be fully accounted for, in the present case, 
by the intervention of any local or temporary causes. It points unmis- 
takably to a general and growing determination to secure the enactment 
of effective measures for the suppression, as far as possible, of the evils 
of intemperance, and then to see to their full enforcement. Hence it is a 
safe prophecy that the number of actions, on both the civil and criminal 
side, founded on the laws in question, will not in the near future dimin- 
ish. Again, the subject has passed beyond the point where its case-law 
might be described as rudimentary. In fact, the extant authorities have 
carried both the principles of interpretation and the rules of application 
to particular states of fact into such a degree of detail that the mass of 
precedents appears to exhibit a confusing and hopeless disorder, until 
marshalled in accordance with a rational plan of classification and treated 
as the authoritative expositions of a complex but consistent system of 
principles. For these reasons, the author has judged his present subject 
to be timely. And as there is no other general text-book on this branch 
of the law, he is emboldened to hope that his labors may not prove 
unprofitable to the profession. 
From various points of view the subject is of interest to the student 
of jurisprudence and statecraft, but from none more so than in relation 
to the constitutional discussions which the laws of this character have 
occasioned. Every system of liquor legislation, every statute on the 
subject, has been fiercely assailed and subjected to the test of objection 
on every conceivable ground of unconstitutionality,-in some cases with 
most obvious inappropriateness, in others, with great plausibility, in some 
III IV 
PREFACE. 
few, with success. The rights of persons and property, the relative 
sphere of the federal and state governments, the various limitations upon 
legislative authority, have all been canvassed in detail in the proceedings 
instituted under these laws; insomuch that a summary of the decisions 
would almost amount to a commentary on American constitutional juris- 
prudence. Nor has this interest been confined to the constitutional the- 
orist or the political philosopher. To show this, we have only to men- 
tion the recent decision of the United States supreme court in Leisy v. 
Hardin, the "Original Package" case. Aside from its important tendency 
in the direction of settling more clearly the boundaries of federal and 
state power under the commerce clause of the constitution, we may 
venture to say that very few, if any, of the decisions promulgated by 
that eminent tribunal have exercised a more immediate, more important, 
or more general influence upon the practical affairs and interests of the 
people. 
It is of course familiar to every one that different states have now in 
force very different systems of liquor legislation. And the author 
was at first inclined to fear that this statutory diversity would prove a 
serious obstacle to a general and systematic treatment of the subject. But 
as his investigations proceeded, he found that the various statutes could 
readily be grouped under a few types, and that while these were not 
always divided by a broad line of distinction, yet the laws considered as 
referable to the same type were so far similar that there was no insur- 
mountable difficulty in arranging and using the body of authorities. 
The system of prohibition, for example, is nearly the same, in its gen- 
eral features, in all the states where it prevails, and indeed in many of 
its details. And the same is true of the system of local option, of licens- 
ing, and of the civil damage laws. While, therefore, the reader will 
perceive the necessity of closely observing the enacted law of his own 
jurisdiction, he will also find that this treatise is not local in its charac- 
ter, but is adapted for use in all the American states. And it may be 
added that, in several departments of the subject, and particularly in rela- 
tion to the pleading, evidence, and practice in liquor cases, the law is 
practically untouched by statute, depending almost wholly upon com- 
mon-law principles. 
One further remark must be made in this connection. This book is 
not a plea for any particular system of liquor legislation. It is purely 
and solely a legal treatise. The law-writer has no more to do with the 
wisdom, justice, or expediency of the statutes whose legal effect he dis- 
cusses than has the court which is called upon to administer them. If a 
s^udy of the various reported cases under any given system may serve, 
statistically or otherwise, to suggest inferences as to its practical work- PREFACE. 
V 
ings, the present writer is responsible for no more than his fair and 
unprejudiced statement of the cases and the legal conclusions to which 
they lead him. At the same time, no man can be blind to the great 
public necessity, under present conditions, of having a sound and wise 
policy of legislation on the subject of the liquor traffic. And that the 
laws, whether or not they are the best that could be devised, should be 
eurely and effectively administered is a matter of equally obvious and 
urgent importance. In view of this, the author has addressed himself 
to the solution of such disputed questions of law as he has encountered 
in the course of this work, with earnestness and candor, with as much 
reason and judgment as he found himself capable of, but also with a 
single view to their determination in accordance with legal-not moral 
or sentimental-principles. 
In regard to the plan of construction of the work, the author has not 
departed from the theories which have characterized his former contri- 
butions to legal literature, and which, in his judgment, must serve to 
account for the very gratifying degree of favor with which those efforts 
have been received by his professional brethren. His constant aim has 
been to make a thoroughly practical treatise-a useful tool for the work- 
ing lawyer. And to this end, he has endeavored to secure an orderly 
and scientific arrangement of his subject, a clear and concise statement 
of its rules and principles, and an abundant but judicious citation of 
authorities. No pains have been spared, in the way of section-headings, 
index, and other such helps, to make the contents of the book easily and 
quickly accessible at any point. And for a similar reason, parallel refer- 
ences have been given, in the case of all decisions concurrently reported, 
to the various periodicals composing the National Reporter System, as 
also to the series of American Decisions and American Reports. The 
citations have been brought down to the present date. 
Finally, although no branch of the subject has been unduly enlarged 
upon at the expense of the others, particular attention has been given to 
matters connected with criminal prosecutions under the liquor laws, to 
the doctrines of criminal responsibility and the constituent elements of 
the various statutory offenses, and to the rules applicable to the framing 
of indictments and the admissibility and sufficiency of evidence, as well 
in general as in relation to the specific crimes. It is thus hoped that 
those who may be called upon to prosecute or defend actions of this char- 
acter will find the work specially serviceable to them in the office and 
the court-room. H. C. B. 
Washington, D. C., April 1, 1892. TABLE OF CONTENTS. 
CHAPTER I. 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
£ 1. Terms used in Statutes. 
2. Intoxicating Liquors. 
3. Spirituous Liquors. 
4. Distilled Liquors. 
5. Wine, or Vinous Liquors. 
6. Malt Liquors. 
7. Liquor, or Liquors. 
8. Medicinal and Toilet Preparations. 
9. Bitters. 
10. Fruits Preserved in Spirits. 
11. Alcohol. 
12. Whisky. 
13. Brandy. 
14. Gin. 
15. Rum. 
16. Ale. 
17. Beer. 
18. Cider. 
19. Tavern. 
20. Tippling House. 
21. Saloon. 
22. Bar-Room. 
23. Wholesaler and Retailer. 
CHAPTER II. 
GENERAL THEORY OF THE POLICE POWER. 
§ 24. Definitions of the Police Power. 
25. Scope of the Police Power. 
26. Examples of Application of the Power. 
VII VIII 
TABLE OF CONTENTS. 
§ 27. Police Power Limited by the Federal Constitution. 
28. Laws Impairing the Obligation of Contracts. 
29. Regulation of Commerce. 
30. Rights of Citizens of Other States. 
31. Application of the Police Power to the Liquor Traffic. 
32. Police Power Distinguished from Eminent Domain. 
CHAPTER III. 
CONSTITUTIONALITY OF LIQUOR LAWS 
§ 33. Restrictive Liquor Laws are Referable to Police Power. 
34. Power of States to Control Liquor Traffic. 
35. Powers of Congress in This Regard. 
36. Power of States Limited by Federal Constitution. 
37. Power to Prohibit Manufacture and Sale. 
38. Property in Liquors. 
39. Power to Regulate Sale of Liquor. 
40. Prohibition of Sale jn Particular Localities. 
41. Prohibition of Sale on Particular Days. 
42. Prohibition of Sale to Particular Classes of Persons. 
43. Power to Define Intoxicating Liquors. 
44. Discrimination against Products of Other States. 
45. Constitutionality of Local Option Laws. 
46. Constitutionality of License Laws. 
47. Same; Requiring Assent of Neighbors. 
48. Same; Discrimination against Non-Residents. 
49. Same; Restriction to Particular Classes. 
50. Same; Regulation of Sales by Licensees. 
51. Same; Providing for Revocation of License. 
52. Constitutionality of Search and Seizure Laws. 
53. Power to Confiscate Liquor Illegally Kept. 
54. Power to Authorize Abatement of Liquor Nuisances. 
55. Taxation of Liquor Traffic. 
56. Constitutionality of Civil Damage Laws. 
57. Laws Prohibiting Recovery for Liquor Sold. 
58. Power of State to Punish Illicit Traffic Criminally. 
59. Power to Exact Penalties and Forfeitures. 
60. Law's Relating to Rules of Evidence. 
61. Laws Relating to Criminal Pleading. 
62. Constitutional Right of Trial by Jury. 
63. Measure of Punishment to be Inflicted. 
64. Title and Subject-Matter of Laws. 
65. Constitution:.! Provisions as to Enactment of Laws. TABLE OF CONTENTS. 
IX 
CHAPTER IV. 
LIQUOR LEGISLATION AND THE REGULATION OF COMMERCE. 
§ 66. Police Power Limited by Commercial Power of Congress. 
67. The Rule in Brown v. Maryland. 
68. Exemption of Foreign Imported Liquors from State Laws. 
69. The Decision in the License Cases. 
70. Interstate Commerce and the Police Power. 
71. Importation from Another State-Bowman v. Railway. 
72. The "Original Package" Decision. 
78. Cases Following Leisy v. Hardin. 
74. Effects of this Decision. 
75. What Constitutes an Original Package. 
76. Enactment of the Wilson Law. 
77. Constitutionality of Wilson Law. 
78, Operation and Effect of Wilson Law. 
79. Discrimination against Citizens and Products of Other States. 
CHAPTER V. 
PROHIBITION. 
§ 80. Nature and Terms of Prohibitory Laws. 
81. Constitutionality of Prohibition. 
82. Abridgment of Rights of Citizenship. 
83. Taking Property without Due Process of Law. 
84. Impairing the Obligation of Contracts. 
85. Retrospective Effect of Prohibition. 
86. Regulation of Commerce. 
87. Conflict with United States Revenue Laws. 
88. Adoption of Constitutional Amendment. 
89. Property in Liquors under Prohibitory Laws. 
90. Repeal of Prior Laws by Adoption of Prohibition. X 
TABLE OF CONTENTS. 
CHAPTER VI. 
LOCAL OPTION. 
§ 91. Nature and Terms of Local Option Laws. 
92. Constitutionality of Local Option Laws. 
93. Petition for Election. 
94. Notice of Election. 
95. Order for Election. 
96. Time of Holding Election. 
97. Conduct of Election. 
98. Publication of Result. 
99. Time of Taking Effect. 
100. Operation and Effect of Law. 
101. Effect on Prior Rights and Privileges. 
102. Proof of Adoption of Local Option. 
103. Contesting Validity of Election. 
104. Effect of Local Option on Prior Liquor Laws. 
105. Effect of Changing Boundary of District. 
106. Repeal of Local Option. 
CHAPTER VII. 
TAXATION OF THE LIQUOR TRAFFIC. 
£ 107. Constitutionality. 
108. Taxation and License Distinguished. 
109. Uniformity in Taxation. 
110. Conflict with Other Liquor Laws. 
111. Lien of Tax on Real Property. 
112. Levy and Collection of Tax. 
113. United States Internal Revenue Tax. 
CHAPTER VIII. 
THE LICENSING SYSTEM. 
Part I. Constitutionality of License Laws. 
§ 114. The Licensing System. 
115. License Laws Constitutional. 
116. Repeal of Prior Laws by Enactment of License Law. TABLE OF CONTENTS. 
XI 
Part II. Nature and Effect of Licenses. 
§ 117. Definition of License. 
118. No License Created by Parol or Implication. 
119. Wrongful Refusal or Neglect to Grant License. 
120. Impossibility of Obtaining License. 
121. Performance of Conditions not Equivalent to Obtaining 
License. 
122. Retroactive Effect of License. 
123. Number of Licenses required. 
124. Separate Licenses Required from Different Jurisdictions. 
125. U. S. License no Protection against State Laws. 
126. Effect of Government License. 
127. Licenses are not Contracts. 
128. License Gives no Vested Rights. 
129. Effect of Repeal of Law on Unexpired License. 
130. License is not Assignable. 
131. License does not Pass to Administrator. 
132. License Protects Servant or Agent. 
133. Removal of Principal from State. 
134. Rights of Partners under License. 
135. Statutory Authority for Transfer of License. 
136. Sales under Expired License. 
137. Invalid License no Protection. 
138. Persons Eligible to be Licensed. 
139. What Persons must Take out License. 
140. Wholesalers. 
.41. Manufacturers. 
142. Social Clubs. 
143. License to Joint Parties. 
Part III. What Persons are Required to be Licensed. 
144. Form of License. 
145. Designation of Place of Sale. 
146. Conditions in License. 
147. Duration of License. 
Part IV. Form and Conditions of License. 
Part V. Limitation of Rights Secured by License. 
148. License Subject to Existing Laws. 
149. Effect of Laws Subsequently Enacted. 
150. Restriction as to Place of Sale. 
151. Laws Prohibiting Sales to Particular Classes of Persons. 
152. Requirement that License be Displayed. 
153. Screen Law. XII 
TABLE OF CONTENTS. 
Part VI. Proceedings to Obtain License. 
§ 154. Power to Grant Licenses. 
155. Power cannot be Delegated. 
156. Application for License. 
157. Affidavit of Applicant. 
158. Notice of Application. 
159. Recommendation of Application. 
160. Who may Sign Recommendation. 
161. Number of Persons Recommending. 
162. Moral Qualifications of Applicant. 
163. Requirement as to Residence. 
164. Remonstrances. 
165. Right to Contest Application. 
166. Appointing Day for Hearing. 
167. Procedure on Hearing Application. 
168. Evidence on Application. 
169. Disqualification of Judges. 
170. Discretion in Granting or Refusing License. 
171. Nature of this Discretion. 
172. Mandamus to Compel Issuing of License. 
173. Appeal from Order of Licensing Authority. 
174. Certiorari to Review Proceedings. 
175. Restraining Grant of License. 
176. Criminal Responsibility of Licensing Board. 
177. Action for Refusal to Issue License. 
178. License not Collaterally Impeachable. 
179. License Fees not Taxation. 
180. Fixing Amount of Fees. 
181. Reasonableness of Amount. 
182. Ordinances Increasing Amount of Fee. 
183. Payment in Advance Required. 
184. License Fee Payable in Money. 
185. Collection of License Fees. 
186. Disposition of License Moneys. 
187. Recovery of Excessive or Illegal Fee Paid. 
188. Refunding Money on Refusal or Cancellation of License. 
Part VII. License Fees. 
Part VIII. Revocation of Licenses. 
189. Power to Revoke Licenses. 
190. Revocation by Repeal of Law. 
191. Jurisdiction for Revocation. 
192. Causes for Revocation of License. 
193. Notice to Licensee. TABLE OF CONTENTS. 
XIII 
§ 194. Proceedings and Evidence. 
195. Appeal and Review. 
196. Effect of Revocation. 
Part IX. Bonds of Licensees. 
197. Bond as Condition Precedent to Validity of License 
198. Form and Contents of Bond. 
199. Approval of Bond. 
200. Breach of Condition of Bond. 
201. Actions on Bonds. 
202. Damages Recoverable in Suit on Bond. 
203. Liability of Sureties. 
Part X. Town Agents. 
204. Appointment and Character of Town Agents. 
205. Powers and Duties of Town Agents. 
CHAPTER IX. 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 206. Sale of Liquor by Druggists without License. 
207. Druggists' Licenses and Bonds. 
208. Druggists' Permits in Prohibition States. 
209. Unlawful Sales by Licensed Druggists. 
210. Question of Intention and Good Faith. 
211. Sale on Prescription of Physician. 
212. Druggists' Reports of Sales. 
213. Sales by Druggists' Clerks. 
214. Revocation of Druggist's License. 
215. Sale of Liquor by Physicians. 
216. Sales by Persons who are both Druggists and Physicians. 
CHAPTER X. 
REGULATION OF LIQUOR TRAFFIC BY MUNICIPAL CORPORATIONS. 
§ 217. Delegation of Regulative Power to Municipalities. 
218. Limits of Legislative Power in This Regard. 
219. Uniformity in Grant of Power not Required. XIV 
TABLE OF CONTENTS. 
§ 220. Extent of Power Delegated. 
221. Ordinances Partially in Excess of Power. 
222. Conflict of Ordinance with Constitution. 
223. Conflict of Ordinance with General Law. 
224. Repeal of Ordinance by Subsequent Statute. 
225. Co-Ordinate Authority of State and Municipality. 
226. Grant of Exclusive Power to Municipality. 
227. Power to Regulate does not Include Power to Prohibit. 
228. Power Granted to Municipality cannot be Delegated. 
229. Power of Municipality to Require Licenses. 
230. Power to Exact License Fees. 
231. Limitation of Municipal Power as to Amount of Fee Chargeable. 
232. Differential and Discriminating Rates. 
233. Providing for Revocation of License. 
234. Ordinances Regulating Sale of Liquor. 
235. Ordinance Prohibiting Sale on Sunday. 
236. Prescribing Hours of Closing Saloons. 
237. Prohibiting Employment of Women in Saloons. 
CHAPTER XI. 
LAWS AGAINST ADULTERATION OF LIQUOR. 
§ 238. Statutes Prohibiting Adulteration. 
239. Constitutionality of Such Statutes. 
240. Construction and Operation of Statutes. 
241. Oath and Bond against Adulteration. 
CHAPTER XII. 
EFFECT OF LIQUOR LAWS ON CONTRACTS AND RIGHTS OF ACTION. 
§ 242. Property in Intoxicating Liqdors. 
243. Liquor is a Subject of Larceny. 
244. Action for Wrongful Taking or Conversion of Liquor. 
245. Statute Forbidding Recovery of Possession or Value. 
246. Mortgage of Liquors. 
247. Insurance of Liquors. 
248. No Recovery on Illegal Contract. 
249. No Action for Price of Liquors Illegally Sold. 
250. Proof of Illegality of Sale. TABLE OF CONTENTS. 
XV 
§ 251. Entire and Divisible Accounts. 
252. Appropriation of Payments on Account Partly Illegal. 
253. Recovery on Liquor Contract by Award. 
254. Revival of Right of Action by Repeal of Law. 
255. Laws Forbidding Credit for Liquor Sold. 
256. Note Given on Illegal Sale of Liquor is Void. 
257. Proof of Illegality of Note. 
258. Consideration of Note Illegal in Part. 
259. Rights of Innocent Holder for Value. 
260. Proof of Character of Holder. 
261. Purchaser of Note after Maturity. 
262. Judgment for Price of Liquor Sold. 
263. Money Paid for Liquor cannot be Recovered Back at Common Law. 
264. Executory Contract may be Repudiated. 
265. Statutory Action to Recover Back Payments on Liquor Contracts. 
266. Recovery for Liquors Sold in Another State. 
267. Determination of Place of Sale. 
268. Same; Agent Taking Order. 
269. Knowledge of Buyer's Illegal Purpose not Sufficient to Prevent Recovery. 
270. Participation in Illegal Design Defeats Action. 
271. Contract Void where Made Void Everywhere. 
272. Statute Forbidding Recovery on Foreign Sales. 
273. Laws Forbidding Soliciting of Orders. 
274. Contracts against Policy of Liquor Laws. 
275. Avoidance of Leases. 
276. Who may Take Advantage of Illegality. 
CHAPTER XIII. 
CIVIL DAMAGE LAWS. 
Part I. Civil Damage Statutes. 
£ 277. Terms of the Statutes. 
278. Constitutionality of Statutes. 
279. Construction of Statutes. 
280. Statutes not Extra-Territorial. 
281. Nature and Form of Action. 
282. Limitation of Action. 
Part II. What Persons are Entitled to Sue. 
283. Wife or Widow. 
284. Husband. 
285. Father. XVI 
TABLE OF CONTENTS. 
§ 286. Dependent Mother. 
287. Son or Daughter. 
288. Employer. 
289. Stranger Injured by Intoxicated Person. 
290. Town or Poor District. 
291. Intoxicated Person as Plaintiff. 
292. Seller cannot Recover. 
293. Joinder of Plaintiffs. 
Part III. What Persons are Liable. 
294. Immediate and Remote Vendor. 
295. Person not a Liquor Seller. 
296. Personal and Bonded Liability. 
297. Sureties on Dealer's Bond. 
298. Liability of Master for Acts of Servant. 
299. Joint Liability. 
300. Plaintiff can have but one Satisfaction. 
301. Liability of Lessor of Premises. 
302. Knowledge and Consent of Owner. 
303. Establishment of Lien on Premises. 
Part IV. The Cause of Action. 
304. Elements of the Right of Action. 
305. Illegality of Sale Necessary to Found Action. 
306. Injuries to Person. 
307. Injuries to Property. 
308. Injuries to Means of Support. 
309. Disgrace and Mental Suffering. 
310. Death of Husband as Ground of Action. 
311. Intoxication as Cause of Death. 
312. Proximate and Remote Causes of Injury. 
313. Caring for Intoxicated Person. 
314. Sale after Notice not to Sell. 
Part V. Defenses to Action. 
315. Defenses in General. 
316. License is no Protection. 
317. Contributing Act or Negligence of Plaintiff. 
318. Concurrence of Intoxicated Person. 
Part VI. Pleadings in the Action. 
319. Allegations of Complaint. 
320. Negativing Contributory Negligence. 
321. Correspondence of Pleading and Proof. 
322. Amendment of Declaration. TABLE OF CONTENTS. 
XVII 
Part VII. Damages Recoverable. 
§ 323. Proper Elements of Damage. 
324. Measure of Damages. 
325 Exemplary Damages. 
326. Reduction or Mitigation of Damages. 
Part VIII. Evidence in Civil Damage Actions. 
327. Admissibility of Evidence in General. 
328. Competency of Husband as Witness. 
329. Evidence of Antecedent Facts. 
330. Evidence Confined to Injury Alleged. 
331. Proof of Character of Plaintiff. 
332. Proof of Sale by Defendant. 
333. Proof of Intoxication as Cause of Injury. 
334. Evidence of Decedent's Expectation of Life. 
335. Evidence to Charge Lessor of Premises. 
336. Evidence on Question of Exemplary Damages. 
337. Weight and Sufficiency of Evidence. 
CHAPTER XIV. 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
§ 338. Statutes Defining Liquor Nuisances. 
339. Constitutionality of Statutes. 
340. Elements of the Offense. 
341. Who may Institute Proceedings. 
342. Parties Defendant. 
343. Abatement of Nuisance. 
344. Injunction against Nuisance. 
345. Pleading. 
346. Evidence. 
347. Practice. 
348. Allowance of Attorney's Fees. 
349. Contempt Proceedings for Violation of Injunction. 
intox. liq.-B XVIII 
TABLE OE CONTENTS. 
CHAPTER XV. 
SEARCH AND SEIZURE LAWS. 
§ 350. Statutes on the Subject. 
351. Constitutionality of Statutes. 
352. Nature of the Proceeding. 
353. In Whose Possession Liquor may be Seized. 
354. Complaint or Information. 
355. Verification of Complaint. 
356. Requisites of Search-Warrant. 
357. Description of Premises to be Searched 
358. Description of Liquors to be Seized. 
359. Execution of Warrant. 
360. What Property may be Seized. 
361. Officer's Return to Warrant. 
362. Status of Property under Seizure. 
363. Arrest or Seizure without Warrant. 
364. Notice to Claimants. 
365. Jurisdiction and Procedure. 
366. Evidence. 
367. Kights of Claimant. 
CHAPTER XVI. 
CRIMINAL RESPONSIBILITY UNDER THE LIQUOR LAWS. 
§ 368. Responsibility of Master for Acts of Servant or Agent. 
369. Unauthorized Sales by Servant or Agent. 
370. Statutory Liability for Unauthorized Sales. 
371. Proof of Complicity of Master. 
372. Personal Liability of Servant or Agent. 
373. Several Liability of Master and Servant. 
374. Responsibility of Husband for Sales bs' Wife. 
375. Personal Liability of Wife. 
376. Husband and Wife Jointly Liable. 
377. Liability of Partners. 
378. Joint Liability. 
379. Sales by Children. 
380. Persons Aiding and Abetting. 
381. Purchaser not Guilty of an Offense. 
882. Liability of Owner or Lessor of Premises. TABLE OF CONTENTS. 
XIX 
CHAPTER XVII. 
CRIMES AND OFFENSES UNDER THE LIQUOR LAWS. 
§ 383. Grade of Offenses. 
384. Illegal Sales. 
385. Being a Common Seller. 
386. Pursuing the Business of Selling Liquor. 
387. Unlawful Keeping of Liquors. 
388. Maintaining Liquor Nuisance. 
389. Keeping Place for Sale of Liquors. 
390. Keeping Disorderly House. 
391. Furnishing Liquor in Theatres. 
392. Selling Liquor to be Drunk on Premises. 
393. Keeping Open on Prohibited Days. 
394. Illegal Transportation of Liquors. 
395. Introduction of Liquor into Indian Country. 
396. Importation of Liquor into Alaska. 
397. Bell-Punch Law. 
398. Employment of Women in Saloons. 
399. Manufacture of Liquor. 
400. Being Drunk in a Public Place. 
401. Distinct Offenses in One Act. 
CHAPTER XVIII. 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 402. The Offense Statutory. 
403. What Constitutes a Sale. 
404. Sales on Credit. 
405. Devices to Conceal a Sale. 
406. Sale Distinguished from Gift or Barter. 
407. Giving Liquor in Kindness or Hospitality. 
408. Acting as Agent for Buyer. 
409. Sale of Liquor without License. 
410. Sale without License not a Continuing Offense. 
411. Sales Exempted from License Law. 
412. Unlicensed Sales for Medical Uses. 
413. Sales for Purposes not Authorized by License. 
414. Sales in Prohibited Quantities. XX 
TABLE OF CONTENTS. 
§ 415. Sale of Liquor to Minors. 
416. Knowledge of Minority as a Statutory Element of Offense. 
417. Ignorance of Minority of Purchaser as a Defense. 
418. Mistake of Fact Held no Defense. 
419. Consent of Parent or Guardian. 
420. Sale to Minor as Agent or Messenger for an Adult. 
421. Adult "Treating" Minor. 
422. Purchase by Adult as Agent of Minor. 
423. Sale of Liquor to Intoxicated Person. 
424. Sales to Habitual Drunkards. 
425. What Constitutes Intemperate Habits. 
426. Seller's Knowledge of Purchaser s Habits. 
427. Sale of Liquor to Indians. 
428. Sale of Liquor on Sunday. 
429. Sunday Sales to Lodgers or Guests. 
430. Sale of Liquor on Election-Days. 
431. Sale of Liquor on Public Holidays. 
432. Sale after Lawful Hours. 
433. Sales in Prohibited Places. 
434. Sales Made out of Territory Covered by L'cense. 
435. Sales near Churches, Schools, Fairs, etc. 
CHAPTER XIX. 
INDICTMENTS UNDER THE LIQUOR LAWS. 
Part I. General Principles. 
§ 436. Scope of the Chapter. 
437. Certainty. 
438. Following the Statute. 
439. Disjunctive Allegations. 
440. Duplicity. 
441. Conjunctive Allegations. 
442. Joinder of Counts 
443. Surplusage. 
444. Negativing Exceptions and Defenses. 
445. Same; Exception as to Druggists. 
446. Same; Exception as to Particular Uses. 
447. Same; Exception as to Imported Liquors. 
448. Negativing License or Authority to Sell. 
449. Form of Allegation Denying License. 
450. Referring to the Statute. 
451. Conclusion. Against the Form of the Statute. 
•452. Complaint for Violation of Municipal Ordinance. TABLE OF CONTENTS. 
XXI 
Part II. Particular Averments. 
§ 453. Alleging Character or Occupation of Defendant 
454. Misnomer of Defendant. 
455. Allegations of Sales. 
456. Alleging Evasions or Devices to Conceal a Salo. 
457. Charging Use or Disposition of Liquors. 
458. Knowledge and Intent of Vendor. 
459. Allegation as to Time. 
460. Laying the Time with a Continuando. 
461. Allegation as to Place. 
462. Laying the Venue. 
463. Where Place is of the Essence of the Offense. 
464. Allegation of Name of Purchaser. 
465. How Purchaser is Described. 
466. Description of Liquors Sold. 
467. Not Necessary to Specify Particular Kind of Liquor. 
468. Charging Sale of Various Liquors in the Disjunctive. 
469. Allegation of Intoxicating Properties of Liquor. 
470. Allegation as to Quantity Sold. 
471. Charging Sale of One "Glass" or "Drink. " 
472. Where Statute Prohibits Sales of "Less than"a Certain Quantity. 
473. Where Quantity is not Material to the Offense. 
474. Allegation of Price Paid. 
475. Charging Sale of Liquor to be Drunk on Premises. 
476. Alleging Sale in Prohibited Places. 
477. Allegation of Sale to Minor. 
478. Allegation of Sale to Habitual Drunkard. 
479. Charging Sale on Sunday. 
480. Charging Sale on Election Day. 
481. Being a Common Seller. 
482. Unlawfully Pursuing Business of Liquor Selling. 
483. Keeping Liquors for Unlawful Sale. 
484. Keeping Place for Unlawful Sale of Liquor. 
485. Keeping a Tippling-House. 
486. Charging Maintenance of Nuisance. 
487. Violation of Screen Law. 
488. Charging Illegal Transportation of Liquor. 
489. Violation of Laws against Adulteration. 
490. Charging Violation of Local Option Law. 
491. Charging Second Offense. XXII 
TABLE OF CONTENTS. 
CHAPTER XX. 
EVIDENCE IN PROSECUTIONS UNDER THE LIQUOR LAWS. 
§ 492. Competency of Witnesses. 
493. Evidence of Spies and Informers. 
494. Circumstantial Evidence. 
495. Same; Finding Liquor on Premises. 
496. Same; Efforts to Conceal Liquor. 
497. Same; Drunken Men about the Premises. 
498. Weight and Sufficiency of Evidence. 
499. Knowledge and Intent. 
500. Connecting Defendant with Unlawful Acts Shown. 
501. Record of Prior Conviction. 
502 Evidence in Case of Joint Parties. 
503 Proving Sale of Liquor. 
504. Allegation of Sale and Proof of Gift. 
505. Evidence of Sales Other than Those Counted on. 
506. Evidence of Selling without License. 
507. Burden of Proving License. 
508. Evidence on Question of License. 
509. United States License as Evidence. 
510. Evidence of Sale by Servant or Agent. 
511. Burden of Proving Legality of Sale. 
512. Evidence as to Time of Offense. 
513. Same; Single Unlawful Sale. 
514. Same; Continuing Offense. 
515. Same; Sale on Sunday. 
516. Evidence as to Place of Offense. 
517. Identification of Purchaser. \ 
518. Evidence under Allegation of Sale to a "Person Unknown." 
519. Evidence of Quantity of Liquor Sold. 
520. Evidence as to Kind of Liquor Sold. 
521. Proof of Intoxicating Properties of Liquor. 
522. Same; Chemical Analysis. 
523. Proof of Being a Common Seller. 
524. Proof of Pursuing Business of Liquor-Selling. 
525. Proof of Keeping Liquors for Unlawful Sale. 
526. Proof of Keeping Place for Unlawful Sale. 
527. Evidence of Maintaining Nuisance. 
528. Evidence on Prosecution of "Club. " 
529. Proof of Sale of Liquor to be Drunk on Premises. 
530. Proof of Illegal Transportation of Liquors. 
531. Proof of Illegal Sale to Minor. TABLE OF CONTENTS. 
XXIII 
£ 532. Proof of Sale to Intoxicated Person. 
533. Proof of Sale to Habitual Drunkard. 
534. Evidence of Violation of Local Option Law. 
CHAPTER XXI. 
PROCEDURE IN LIQUOR CASES. 
$ 535. Jurisdiction. 
536. Limitation of Actions. 
537. Effect of Repeal of Statute. 
538. Form of Proceeding. 
539. Who may Institute Proceedings. 
540. Preliminary Proceedings. 
541. Warrant or Summons. 
542. Defendant's Plea. 
543. Specification of Offenses. 
544. Election between Offenses. 
545. Trial by Jury. 
546. Competency of Jurors. 
547. Verdict. 
548. Sentence and Punishment. 
549. Separate Sentences on Separate Counts. 
550. Sentencing Joint Offenders. 
551. Increased Penalty for Second Offense. 
552. Informer's Share of Penalty. 
553. Double Penalties. 
554. Lien of Fine on Homestead. 
555. Bar by Former Conviction or Acquittal. TABLE OF CASES CITED. 
[the numbers refer to sections.] 
A. 
Abbott v. Sartori, 212. 
Abel v. State. 372, 386. 410, 415. 
Acree v. Commonwealth, 377, 399. 
Adams v. Albany, 223. 
v. Couilliard, 269. 
v. Hackett, 129, 189, 413. 
v. State. 426. 
v. Stephens, 224. 
Adler v. State, 5, 417, 419, 426, 477, 499. 
v. Whitbeck, 46, 107-109, 115, 117, 
179. 
JEtna Fire Ins. Co. v. Boon, 311. 
Aiken v. Blaisdell. 270. 
Ailstock v. Page, 170. 
Akin v. State, 93, 548. 
Alberson v. Mayor, 64. 
Albia v. O'Harra, 516. 
Albrecht v. People, 407. 
v. State. 55, 64. 107, 397. 
v. Walker, 306, 325. 
Aldrich v. Harvey. 292. 
v. Parnell. 300. 
v. Sager, 289. 
Alexander v. O'Donnell, 249. 
v. State, 437. 
Alger v. Weston, 130. 
Allen v. Black, 75, 86. 
v. Staples, 52, 351, 353. 355, 356 
v. State. 42, 50, 482, 548. 
Allison v. State, 426. 
Allred v. State, 2, 5, 6, 8, 9, 482. 
Altenburg v. Commonwealth, 39, 42, 50, 
423. 
Amador Co. v. Kennedy, 232. 
Ambrose v. State, 225. 
American Fur Co. v. United States, 395. 
Amerman v. Kall, 510. 
Ammon v. Chicago, 229. 
Amperse v. Kalamazoo, 199. 
v. Winslow, 199. 
Anderson v. Brewster, 46, 108, 109, 111, 
115, 117, 179. 
v. Commonwealth, 45, 81, 92, 222. 
v. People, 455. 
v. State, 369, 371, 415. 
Androscoggin R. Co. v. Richards, 353 
359. 
Angerhoffer v. State. 225. 
Anthony v. Krey, 297. 
Appling Co. v. McWilliams, 184. 
Arberger v. Marrin, 267. 
Arbintrobe v. State, 472. 
Archer v. State, 405, 456, 510. 
Arnold v. Barkalow, 299, 303, 315. 
v. Gotshall, 303. 
Arrington v. Commonwealth, 455, 459, 
461, 555. 
Arthur v. Flanders, 360. 
Ashurst v. State. 435. 
Astheimer v. O'Pray, 332. 
Atkins v. Randolph, 204. 
v. State, 533. 
Attorney-General v. Bailey, 3, 5. 
v. Justices of Guilford, 170,171, 176. 
v. Lawton, 540. 
Auburn Excise Com'rs v. Merchant, 60, 
50 . 
Aultfather v. State, 417, 426, 477, 499. 
Austin v. State, 30, 48, 115, 138. 
B. 
Bach v. Smith, 249. 
Backes v. Dant, 311. 
Backman v. Mussey, 267. 
v. Wright, 269, 270. 
Baer v. Commonwealth, 453. 
Baeumel v. State, 210, 446, 548. 
Bagg v. Jerome, 246. 
Bagley v. State, 434. 
Bailey v. State, 225, 505. 
Baird v. State, 372, 415. 
Baker v. Beckwith, 305. 
v. Cincinnati, 187. 
v. Pope, 56, 278. 
Baldwin v. Chicago, 393. 
v. Coburn, 205. 
v. Smith, 148, 196, 222. 
Ball v. State, 206. 
Ballentine v. State, 192. 
Ballew v. State, 161. 
INTOX.LIQ. 
XXV XXVI 
CASES CITED. 
Banchor v. Mansel, 269, 270. 
v. Warren. 409. 
Bancroft v. Cambridge. 32, 83. 
v. Dumas. 249. 
Bandalow v. People, 389. 
Barbier v. Connolly, 24, 27, 33, 36, 82, 
Barden v. Montana Club, 142, 528. 
Barks v. Woodruff, 294. 
Barlow v. Scott's Adm'r, 261. 
Barnaby v. Wood. 298, 301. 
Barnard v. Field, 272. 
v. Graham, 158. 
v. Houghton, 249. 
Barnes v. Commonwealth, 132. 
v. State, 150, 426, 441, 478, 499, 503. 
Barrett v. Delano, 57. 
v. Dolan, 310. 
Barron v. Arnold, 245. 
Bartemever v. Iowa. 37, 72, 81-83, 86, 
222. 
Barth v. State. 468. 
Barton v. Gadsden. 229. 
v. State, 206. 211. 
Bates v. Davis, 325. 
Batters v. Dunning, 170, 172. 
Battle v. State. 206, 211. 
Baurose v. State. 520. 
Baxter v. Ellis, 259, 260. 
Bean v. County Court, 172. 
v. Green, 325. 
Beaty, Ex parte, 95. 
Becker v. Betten, 265. 
v. State, 444. 
Beckham v. Howard. 175. 409. 
Bedore v. Newton, 278. 
Beem v. Chestnut. 320. 
Beer Co. v. Massachusetts. 24. 25. 28, 32- 
34. 36, 37, 50, 72, 81. 83, 84, 86, 101, 124, 
127, 149, 189, 190, 222, 223. 
Beers v. Beers, 62. 545. 
v. Walhizer, 308, 324. 
Behler v. State, 417, 426, 477, 499. 
Beine, In re, 73-75, 86. 
Belding v. Johnson, 311. 
Bell, Ex parte, 50. 115, 152, 197, 296, 487. 
v. Glaseker, 342, 388. 
v. State, 46, 115, 152. 278. 
Bellinger v. Griffith, 303. 
Benalleck v. People, 437, 450. 
Benjamin, Ex parte, 185. 
Bennett v. People, 11, 226, 512. 
Benson v. Moore, 19. 
Berg, In re, 173. 
Berger v. State, 18, 381, 492, 521. 
Bergman v. Cleveland, 237, 398. 
Berning v. State, 372, 415, 507. 
Berry v. State, 473. 
Bertholf v. O'Reilly, 56, 278, 317. 
Bescher v. State, 403. 
Bickerstaff, In re, 46, 115, 155. 
Bieser v. State, 22. 23, 414. 
Biggs v. Lawrence. 270. 
Bilbro v. State, 475. 
Bird v. Fake, 254. 
Birr v. People, 504. 
Bissell v. Gowdy, 261. 
Black v. McGilvery. 360. 
Blackwell v. State.' 93, 386, 410, 434,435, 
476. 
Blahut v. State. 419. 
Blair v. Kilpatrick, 173. 
v. State. 415, 419. 
Blakely v. State, 472. 
Blasdell v. Hewit, 470. 
Blatz v. Rohrbach. 16, 17, 311, 333, 521. 
Bligh v. James, 272. 
Bliss v. Brainard, 249. 
Block v. Jacksonville, 113, 125. 
v. State. 473, 476. 
Blodget v. State, 464, 435. 477, 517. 
Bloomer v. Glendy, 346, 388. 
Bloomington v. Strehle, 507. 
Blough v. State, 475. 
Blumenthal. In re, 130, 131. 135, 130. 
Board, etc., v. Taylor, 2, 16, 17. 521. 
v. Sackrider, 539. 
Boatright v. State, 370, 415, 419. 
Bode v. State, 68. 453. 
Bodge v. Hughes, 289, 298, 306. 
Bogan v. State, 445 , 490. 
Boldt v. State, 441, 503, 513, 535. 
Bolduc v. Randall, 122. 
Bonesteel v. Downs, 803. 
Bonner v. Wellborn, 19. 
Boon v. State, 467. 
Boone v. State, 104, 216 537. 
Boothby v. Plaisted, 267, 434. 
Botto v. State. 516. 
Bottomley v. Goldsmith. 260. 
Bourjohn's Application, 162, 168. 
Bouser v. State. 476. 
Boutwell v. Foster, 249. 
Bowen v. Hale, 89. 242. 
v. Webber, 256. 
Bowman v. Railway Co., 36, 71, 72, 86. 
Boyd v. Alabama, 25, 28. 36. 
v. Bryant, 45, 92. 222. 
v. State, 113, 125, 435. 
v. Watt, 299, 315. 
Boyle v. Commonwealth, 470. 
Bradford v. Stevens, 68. 
Brady v. Northwestern Ins. Co., 26. 
Braitch v. Guelick, 258. 
Brannan v. Adams. 313. 
Brannon v. Silvernail, 321, 325. 
Brantigam v. While. 298, 309, 323, 325. 
Brantly v. State, 466, 521. 
Braswell v. Commonwealth, 19. 
Brazil v. Kress. 187. 
Brechwald v. People, 434. 
Breck v. Adams, 244. 
Breslin. In re, 146. 429. 
Brevaldo v. State, 514. 
Bridgeford v. Lexington, 437, 549. 
Briffitt v. State. 17, 521. 
Briggs v. Campbell, 249. 
v. Rafferty, 250, 508. 
Brigham v. Potter, 257. 
Brinkman v. State, 477. CASES CITED. 
XXVII 
Brinson v. State, 215, 435. 
Brittain v. Bethany, 255. 
Brock v. Commonwealth, 470. 
v. State, 119, 172. 
Brockway v. Patterson, 310, 311, 324, 
327, 328, 333. 
v. Petted, 200, 203. 
v. State, 192. 
Bronson v. Oberlin, 64, 219. 
Brookmire v. Monaghan, 310. 
Brooks v. Cook, 291. 
v. State, 210. 
Brosee v. State, 415. 
Brosnahan, In re, 26, 37, 81, 222. 
Brow v. State, 473, 532. 
Brown v. Commonwealth, 201, 203. 
v. Houston, 72, 86. 
v. Maryland. 29, 67, 69, 72, 86. 
v. Perkins. 242. 338. 388. 
v. State, 50, 84, 101, 104, 124. 127, 
139. 147, 149, 189, 190, 206, 222, 
223, 392, 417, 426, 453, 477, 479, 
499. 515, 517. 
Browne v. Hilton, 414. 
Brubaker v. State, 194. 
Brugier v. United States, 427, 466, 467, 
547. 
Brunson v. Dunn, 162, 168. 
Brutton v. State, 444. 
Bryant v. State, 386. 410, 422, 434, 534. 
v. Tidgewell, 299, 315. 
Buck v. Albee, 274. 
Buckham v. Grape, 301, 335. 
Buckmaster v. McElroy, 291. 
Buckner v. State, 513. 
Buckworth v. Crawford, 299, 300, 315. 
Buddington, Matter of, 535. 
Burch v. Republic, 461. 
Burckholter v. McConnellsville, 219. 
Burke y. State. 449. 
Burlington v. Bumgardner, 229. 
Burnett, Ex parte, 231. 
Burnside, Exp irte, 45, 64, 92, 222. 
Burrage, Ex parte, 98. 
Burrell v. State, 520, 521. 
Bush v. Murray, 294. 
v. Republic, 437. 
Butchers' Union Co. v. Crescent City 
Co.. 26, 28. 
Butler v. Chambers. 26. 
v. Northumberland, 249. 
v. State, 8, 104, 442, 469, 534. 
Butman's Case, 451. 
Butzman v. Whitbeck. 108, 117, 179. 
Byers v. Olney, 223. 
Byram v. Polk Co., 365. 
Calder v. Sheppard, 162, 168. 
Caldwell v. Barrett, 45, 92, 222. 
v. Grider, 106, 116. 
v. Wentworth, 249. 
Callahan v. State, 467. 
Callaway v. Mayor of Milledgeville, 187. 
Calloway v. Laydon, 306. 
Camp v. State. 226. 450. 
Campbell v. Manderscheid, 59. 
v. Morris. 48, 115, 138. 
v. Schlesinger, 302, 332, 335. 
v. State, 381, 492. 
Cannaday v. People. 464, 477. 517. 
Cantril v. Sainer, 221, 227. 
Capritz v. State, 464, 477, 517. 
Carl v. State, 9, 206, 521. 
Carleton v. Rugg. 54, 339, 388. 
v. Woods, 251. 
Carlin v. Heller, 265. 
Carlisle v. State, 435. 
Carlson, In re, 195, 418, 426, 477. 
Carlton v. Bailey, 68. 
Carmon v. State, 12, 469, 521. 
Carnes v. State, It 2, 534. 
Carr v. Fowler, 220. 
Carrigan v. Lycoming Fire Ins. Co.. 247. 
Carrington v. Commonwealth, 206, 211. 
Carroll v. State, 370, 415. 
Carson v. State, 215. 
Carstairs v. O'Donnell. 73, 86. 
Carter v.. Clark, 263, 272. 
Carthage v. Buckner, 206, 211. 
Castle v. Fogerty, 301. 
Caswell v. State. 5. 
Catoir v. Watterson, 112, 187. 
Cearfoss v. State, 430. 
Chalmers v. Funk, 97. 
Chandler v. Ruebelt. 162, 168. 
Charleston v. Corleis, 122. 
v. Schmidt. 122. 
Charlton v. Donnell, 272. 
Chase v. Burkholder, 251. 
v. Kenniston, 322, 333. 
Chastain v. Calhoun. 124, 127. 
Cheadle v. State. 511. 
Cheny v. Shelbyville, 229. 
Cherry v. Commonwealth, 194. 
Chesapeake Club v. State, 142, 528. 
Chew v. State, 206. 
Chittenden Co. Treas'r v. Mitchell, 540. 
Christensen, Ex parte, 47. 
In re, 47, 115. 
Christian v. State, 392. 
Church v. Higham, 423. 
Chy Lung v. Freeman, 29. 
City Council v. Ahrens, 46, 68, 115. 
v. Hollenback, 178. 
v. Van Roven, 375. 
City of Anniston. Ex parte, 227. 
City of Burlington v. Kellar, 229. 
City of Chicago v. Enright, 185. 
City of Craig v. Smith, 184. 
City of Elk Point v. Vaughn, 229, 231, 
235. 
City of Kinmundy v. Mahan, 228. 
c. 
Cable v. State, 390. 
Cagle v. State, 379, 380. 
Cahen v. Jarrett, 46, 115. 
Calder v Bull, 60. 
v. Kurby, 50, 84, 101. 124, 127, 149, 
18J, 190, 222, 223. XXVIII 
CASES CITED. 
City of New Orleans v. Chirk. 181. 
City of New York v. Miln, 24. 27. 33. 
City of Rochester v. Upman, 229. 
City of St. Louis v. Gerardi, 433. 
v. Siegrist, 19. 
City of Topeka v. Zufall, 18, 521. 
Clare v. State, 474. 
Clark v. State. 166, 459. 
Claus v. Hardy, 177. 
Cleinmens v. Commonwealth, 141. 
Clifford v. State, 2, 3, 5, 439. 
Clinton v. Grusendorf, 21. 
v. Laning, 285, 309, 323, 324, 334. 
v. Phillips, 212. 
v. State, 514. 
Clohessy v. Roedelheim, 240, 250. 
Cloud v. State, 370, 372, 415. 
Clugas v. Penaluna, 270. 
Cobb v. Billings, 249, 414. 
v. Doyle, 259. 
v. Farr, 246. 
v. People, 202. 
Cobleigh v. McBride. 525. 
Coburn v. Odell. 258. 
Cochran v. State, 392. 461, 434. 467, 477, 
517. 
Cochrane v. Clough. 251. 
Coggeshall v. Groves, 90, 127, 190. 
v. Pollett, 203. 
Cokely v. State, 459. 
Coker v. State, 415. 
Collarn, In re, 172. 
Collier v. Early. 311. 
Collins v. Barrier, 161, 164, 173. 
v. Hills, 70. 
v. Jones. 257. 
Columbus City v. Cutcomp, 50, 84, 127, 
189, 190. 
Combs v. State, 102, 534. 
Commissioners v. Commissioners of 
Robeson, 172. 
v. Dougherty, 372, 415. 
v. Freeoff, 16. 17, 521. 
v. Taylor. 2, 16, 17, 521. 
Commonwealth v. Aaron, 526. 
v. Abrams, 403. 
v. Adams, 459. 542. 
v. Alger, 24. 32. 33, 83. 
v. Allen. 448. 
v. Andrews. 526. 
v. Anthes. 17, 521. 
v. Armstrong. 514. 
v. Atkins. 525. 
v. Auberton, 153. 
v. Austin. 501, 509. 
v. Baird, 464. 477, 517. 
v. Baker, 142, 528. 
v. Barker, 523. 
v. Barlow, 503. 
v. Barnard. 461. 
v. Barnes. 153, 418, 426, 477, 499, 531. 
v. Barry, 374. 
v. Batbrick, 3, 5. 
v. Bearce, 158, 193, 442. ♦ 
v. Bell, 478. 
Commonwealth v. Bennett, 45, 92. 222. 
v. Bentley. 522. 
v. Berry, 525. 
v. Bickum, 503, 544. 
v. Bishman. 74, 88. 
v. Blackington, 119, 409. 
v. Blood, 4)5, 517. 
v. Bios. 17. 521. 
v. Bolkon), 508. 
v. Bovden, 495. 516, 523. 
v. Boyle, 449. 526. 
v. Boynton, 385. 
v. Brady, 372. 
v. Bralley, 385. 
v. Branamon. 132. - 
v. Brennan, 50, 84, 101, 124,127, 149. 
189, 190, 222. 223. 
v. Briant, 371, 415. 
v. Briggs, 514. 
v. Broker, 440. 
v. Brooks, 510. 
v. Brown, 372, 415, 473, 509, 517, 550. 
v. Brusie, 345, 383. 
v. Bryan, 130. 
v. Brvden, 460. 
v. Bubser, 17, 521. 
v. Buck. 519. 
v. Buckley, 526. 
v. Burdi ng, 444. 
v. Burgett. 434. 
v. Burk, 375. 
v. Burke, 3, 5. 
v. Burns, 385, 401, 520. 
v. Byrnes. 483. 
v. Cain, 544. 
v. Calhane, 78. 
v. Cameron, 508. 
v. Campbell, 494. 
v. Carney, 514. 535. 
v. Carolin, 526. 
v. Carpenter, 507. 
v. Carr, 535. 
v. Carroll. 374. 513. 
v. Casey, 50. 115, 126, 153, 487. 
v. Cauley, 144, 145. 
v. Chadwick, 510. 
v. Chaney. 492. 
v. Chappel. 18. 521. 
v. Churchill, 473, 526. 
v. Clapp, 58, 449. 461. 
v. Clark, 403, 442, 449, 467, 473. 
v. Clynes, 498, 544. 
v. Coffee, 243. 
v. Colton. 481. 
v. Commeskey, 530. 
v. Conant. 449, 467, 470. 
v. Coolidge, 524. 
v. Costello. 50, 115, 153, 487. 
v. Cotter, 523. 
v. Coughlin, 374. 
v. Cummings, 461, 525. 
v. Curran, 441, 507. 
v. Cutler, 555. 
v. Dady, 523. 
v. Daily, 496. CASES CITED. 
XXIX 
Commonwealth v. Daley, 375. 
v. Daly, 409. 
v. Davenport, 484, 524. 
v. Davis, 421. 
v. Dean, 18, 45, 92, 222, 464,477, 517, 
521. 
v. Dearborn, 500. 
v. Dillane, 513. 519. 
v. Dobbyn. 498. 
v. Dolan, 441. 
v. Dooly, 547. 
v. Dove, 401. 
v. Ducey, 50, 115, 487. 
v. Dunbar. 526. 
v. Dunn, 449. 
v. Eagan, 527. 
v. Eaton. 441, 473. 
v. Edds. 484, 498, 510. 
v. Edwards, 447. 481. 
v. Eggleston, 434. 
v. Elwell. 514. 
v. Estabrook. 150. 
v. Everson, 409. 435. 
v. Ewig, 142. 528. 
v. Ewing, 477. 
v. Farrand, 527. 
v. Ferden, 153. 
v. Finnegan, 337. 
v. Finnerty, 495, 497. 
v. Fisher, 525. 
v. Fitzgerald, 525, 
v. Flaherty, 374. 
v. Foss, 441, 484. 508. 
v. Fowler, 420. 
v. Fraher. 389, 555. 
v. Francis, 431. 
v. Frantz. 409. 
v. Fredericks. 217. 
v. Gagne. 74, 86, 447. 
v. Gallagher, 345. 388, 525. 
v. Galligan, 372. 378, 415. 
v. Gardner, 514. 
v. Gavin, 525, 547. 
v. Gay, 447, 527, 539. 
v. Geary, 142, 403. 
v. Gedikoh, 428. 
v. Gibbons, 487. 
v. Giles. 520. 
v. Gilland, 483. 
v. Gillon, 442, 483, 495, 510. 
v. Godley, 526. 
v. Goodman, 387. 
v. Gormley, 374. 
v. Grady, 354. 
v. Graves, 137, 523. 
v. Greenen, 526. 
v. Greenfield, 434. 
v. Grey, 2, 3, 5, 439. 
v. Griffin, 459. 
v. Hadcraft, 477. 
v. Hadley, 372, 415. 
v. Hagan, 371, 415, 429. 
v. Hagarman, 459. 
v. Hall, 134, 195. 
v. Hallett, 8. 
Commonwealth v. Ham, 525. 
v. Hamer, 193. 
v. Hamor, 376. 
v. Hampton, 448. 
v. Hardiman, 17, 521. 
v. Harper, 394. 
v. Harris, 550. 
v. Harrison, 506. 
v. Hart, 481. 
v. Harvey, 448, 498. 
v. Hayes, 154. 371, 415, 526. 
v. Hazeltine, 354. 
v. Head, 461. 
v. Heaganey, 435. 
v. Heffron, 516. 
v. Henderson, 525. 
v. Hendrie, 518. 
v. Herrick, 518. 
v. Hersey, 483, 514, 526, 527, 535. 
v. Hickey, 484. 
v. Higgins, 512. 
v. Hildreth, 498, 500. 
v. Hill. 64, 374, 444, 486. 
v. Hinds, 359. 
v. Hitchings, 465. 
v. Hogan, 404, 555. 
v. Hoke, 98. 
v. Holbrook, 113, 125. 
v. Holstine, 434, 499. 
v. Houle, 371, 415. 
v. Howe, 54. 339, 388, 486. 
v. Hoye, 481, 486, 498. 
v. Hutchinson, 488. 
v. Hyland, 374. 
v. Hvneman,428. 
v. Intoxicating Liquors, [4 Allen, 
593, 601,] 354, 364, 366. 
v. Intoxicating Liquors, [6 Allen,596, 
599,] 354, 356, 357, 361, 364, 36). 
v. Intoxicating Liquors, [13 Allen, 
52,] 354, 358, 360. 
v. Intoxicating Liquors, [13 Allen, 
561,] 365. 
v. Intoxicating Liquors, [97 Mass. 
62, 63,] 356, 358, 360. 
v. Intoxicating Liquors. [97 Mass. 
332, 334.] 354, 356, 357. 
v. Intoxicating Liquors, [97 Mass. 
601,] 364. 
v. Intoxicating Liquors, [103 Mass. 
454.] 367. 
v. Intoxicating Liquors. [105 Mass. 
178, 181,] 354, 356. 357. 
v. Intoxicating Liquors, [105 Mass. 
381,] 354, 357. 
v. Intoxicating Liquors, [105 Mass. 
595,] 366. 
v. Intoxicating Liquors, [107 Mass. 
216,] 354. 
v. Intox eating Liquors, [107 Mass. 
396,] 351. 
v. Intoxicating Liquors, [108 Mass. 
290,] 365. 
v. Intoxicating Liquors, [109 Mass. 
371,] 354, 357. XXX 
CASES CITED. 
Commonwealth v. Intoxicating Liquors, 
[113 Mass. 13, 23,] 360, 366. 
v. Intoxicating Liquors. [115 Mass. 
142. 145,] 354. 357, 366. 
v. Intoxicating Liquors. [117 Mass. 
427,] 366. 
v. Intoxicating Liquors, [128 Mass. 
72.] 364. 
v. Intoxicating Liquors, [138 Mass. 
506,] 488. ' 
v. Intoxicating Liquors, [142 Mass. 
470, 8 N. E. Rep. 421, 355. 
v. Intoxicating Liquors, [146 Mass. 
509, 16 N. E. Rep. 298,] 354. 357, 
364. 
v. Intoxicating Liquors. [148 Mass. 
124, 19 N. E. Rep. 23 I 547. 
v. Intoxicating Liquors, [150 Mass. 
164, 22 N. E. Rep. 628,] 354, 357. 
v. Jacobs, 484, 528. 
v. Jarrell. 104. 
v. Jenkins, 435. 
v. Jenks, 544. 
v. Jones, 435, 481. 
v. Jordan, 3, 5. 
v. Julius, 423. 
v. Kahlmeyer, 526. 
v. Kamp, 19. 
v. Kane, 153. 346, 388. 
v. Keefe, 449, 450. 486-488. 516. 
v. Keenan, 113,125, 494, 495, 509, 510. 
v. Kelley, 153. 497. 
v. Kelly, 486, 513. 
v. Kendall, 460. 
v. Kennedy, 374, 497. 
v. Kenney. 530. 
v. Kern, 483. 
v. Kerrissey, 527. 
v. Kiley, 192. 
v. Kimball, 68, 412. 455, 484. 
v. King, 105, 106, 117. 
v. Kingman, 459, 481. 
v. Kingsbury, 479, 515. 
v. Kirk, 385. 
v. Lafayette, 510. 
v. Lafontaine. 449. 
v. Lahy, 507, 555. 
v. Lamere, 495. 514. 
v. Lattinville. 420, 526. 
v. Leddy, 354. 
v. Lee. 486, 526. 
v. Leeds, 378. 
v. Leighton, 525. 
v. Leo, 503, 507. 
v. Leonard. 513, 520. 
v. Levy, 525. 
v. Lillard, 99, 103. 
v. Lincoln, 495. 
v. Line, 501. 
v. Livermore, 2, 3, 5. 498. 523. 
v. Locke, 394, 496, 526, 530. 
v. Logan, 409, 486. 
v. Luck. 226. 
v. Luddy, 392, 453, 518, 529. 
v. Lynch, 525. 
Commonwealth v. McArty, 526. 
v. McCaughey, 526. 
v. McCauley, 555. 
v. McConnell. 530. 
v. McCormick, 145. 
v. McCullow, 495. 
v. McCurdy, 526. 
v. McDonnough, 153. 
v. McGuire, 455. 
v. McHugh, 496. 
v. McLaughlin, 354. 
v. McNamee, 113, 125, 425, 533. 
v. McNeff, 426. 
v. Madden, 523. 
v. Magee, 522. 
v. Mahoney, 372, 411, 415. 
v. Mahony. 523. 
v. Major, 368. 415. 
v. Maloney, 494, 513. 
v. Mason, 493. 
v. Matthews, 118, 525. 
v. Mead, 379, 525, 526, 542. 
v. Meaney, 527. 
v. Merriam. 144, 145, 373, 415. 
v. Miller, 180. 441. 
v. Minor, 215. 
v. Molter, 429. 
v. Moore, 153, 429, 514, 526, 546. 
v. Moorehouse, 442. 
v. Moran, 154. 
v. Morgan, 466. 
v. Moulton, 475. 
v. Mueller, 104. 
v. Munn, 523. 
v. Murphy, 58, 375, 378, 494, 504. 535, 
539. 
v. Murray, 535. 
v. Nally, 496. 
v. Newton, 354, 357, 479, 515. 
v. Nichols, 371, 415, 441. 
v. Norton, 494. 
v. O'Brien, 477. 
v. Odlin, 385, 472. 
v. O'Donnell, 113, 125, 521. 
v. O'Hanlon, 544. 
v. O'Kean, 17. 521. 
v. O'Leary. 420. 
v. Packard. 406, 415, 504. 
v. Park, 510. 
v. Patten, 525. 
v. Patterson, 526. 
v. Pearson, 453. 
v. Pease, 9. 
v. Peckham. 14, 521. 
v. Pendergast, 74, 86. 
v. Penniman, 443, 
v. Perley, 385. 
v. Perry, 210, 371, 415. 
v. Peto, 449, 521. 
v. Phelps, 505. 
v. Pierce, 206. 
v. Pillsbury, 204. 523. 
v. Pomphret, 142, 528. 
v. Porter, 206, 385. 
v. Powderly, 498. CASES CITED. 
XXXI 
Commonwealth v. Powers, 525. 
v. Pratt, 374, 518. 
v. Pray, 481. 
v. Purcell, 340, 388. 
v. Purdy, 459, 484, 514, 525. 
v. Purtle, 447, 525. 
v. Putnam. 369. 415, 508. 
v. Quinlan, 486. 
v. Rafferty. 507. 
v. Ramsdell, 8, 206. 
v. Reily, 488. 
v. Remby, 503. 
v. Reyburg, 18, 521. • 
v. Reynolds, 206, 211, 374. 
v. Rhodes. 23. 414, 460. 
v. Riley, 437. 
v. Rogers, 389. 
v. Roland, 388, 449. 
v. Rooks. 369. 3.1. 415. 
v. Rourke. 153. 243. 
v. Rowe, 60. 
v. Rucker, 453. 
v. Rumrill. 385. 
v. Ryan, 467, 507, 528. 
v. Saal, 62, 545. 
v. Salmon, 153. 
v. Sanborn, 113, 125. 
v. Savery. 521. 
v. Sawtelle, 153. 
v. Schoenhutt. 464, 477. 517 
v. Sellers, 64, 151, 415, 458. 
v. Shaw, 449. 
v. Shea. 507, 514, 521. 
v. Sheckles, 113, 125. 
v. Sheehan, 486. 
v. Silverman, 74, 86. 
v. Sinclair, 372, 415, 505. 
v. Sisson, 526. 
v. Skelley, 486. 
v. Sloan, 550. 
v. Slosson, 514. 
v. Smith, 142, 528. 
v. Smoulter, 180. 
v. Snow, 17, 481, 521, 523. 
v. Spring, 144. 
v. Stevens, 368. 369. 415, 503, 520. 
v. Stevenson, 371, 415. 
v. Stratton, 145. 
v. Sullivan, 555. 
v. Sweitzer, 124, 127. 
v. Swihart, 75, 86. 
v. Tabor, 151, 415. 
v. Taggart, 46 >. 
v. Taylor, 497. 
v. Tenney, 525. 
v. Thayer, 405, 456, 508. 
v. Thompson, 538. 
v. Thorniley, 113, 125. 
, v. Thornton, 518. 
v. Thrasher, 498. 
v. Thurlow, 448, 459, 507. 
v. Timothy, 14,467, 4 9, 495, 521. 
v. Tinkham. 492, 510. 
v. Tower. 550. 
v. Towle, 531. 
Commonwealth v. Trainor, 493. 
v. Traverse, 459. 
v. Trimble, 423. 
v. Trombly, 526. 
v. Tryon, 376. 
v. Tubbs. 523. 
v. Turner, 485. 
v. Tuttle, 448, 507, 508, 544. 
v. Uhrig, 418, 426, 477, 499, 509. 
v. Vahey, 526. 
v. Van Stone, 523 
v. Very, 414, 455. 
v. Voorhies. 220. 
v. Wachendorf, 369, 415. 
v. Wallace, 60, 497, 525. 
v. Walton, 460. 
v. Waters, 394, 488, 530. 
v. Webster, 523. 
v. Welch. 121, 122, 375, 389, 409, 495, 
525, 526, 555. 
v. Weller, 45, 92, 222. 
v. Wellington, 209. 
v. Welsh, 486, 526. 
v. Wentworth, 382. 
v. Wheeler, 139. 
v. Whelan, 435. 
v. Whitcomb, 493. 
v. White, 437, 52'), 521. 
v. Whitney, 425, 533. 
v. Wilcox. 441 
v. Willard, 381, 492. 
v. Williams, 60. 372, 415. 510. 
v. Wilson, 170, 199. 449. 
v. Wood, 481, 514. 
v. Woods, 481. 
v. Worcester, 153, 403. 
v. Wright, 486. 
v. Young, 444. 
v. Zelt, 74. 86, 426. 478, 499, 511, 548. 
Compher v. State. 529. 
Comstock v. Hopkins, 300. 
Confrey v. Stark, 308, 324, 325. 
Conklin v. Tice, 324, 335. 
Conley v. State, 440. 
Connell v. State. 467. 
Conner v. Ell ott, 48, 115. 138. 
Connolly v. City of Atlanta, 17, 521. 
v. Scarr, 265. 
Converse v. Foster, 256. 
Conway, Petition of, In re, 170. 
Cook v. Ellis, 325. 
v. Pennsylvania, 68, 72, 86. 
v. State, 490. 
Cooke v. Court of Common Pleas, 154. 
Cool v. State, 471, 474. 
Cooper v. State, 415. 
Corbett v. Duncan, 159. 
Cordes v. State, 382. 
Corfield v. Coryell, 48, 115, 138. 
Corley v. State, 503. 
Cottle v. Cleaves. 260. 
Coulterville v. Gillen, 226. 
County of Mobile v. Kimball, 72, 86. 
Coverdale v. State. 449, 4 >7. 
Cowert, Ex parte, 217, 221. XXXII 
CASES CITED. 
Cox, Ex parte, 100, 104, 161. 
v. Newkirk, 299, 302, 315. 
v. State, 422. 
Crabtree v. State, 426. 
Craddock v. State, 225. 
Craig v. Florange, 37. 85, 222. 
v. Hasselman, 341, 388. 
v. Proctor, 257. 
v. Werthmueller, 54, 339, 340, 343, 
348, 388. 
Crampton v. State, 418, 426, 477, 499. 
Crawley v. Commonwealth,198, 202. 296. 
Creekmore v. Commonwealth, 40, 433. 
Crescent City Slaughter-House Co. v. 
New Orleans, 26. 
Crocker v. State, 382. 
Croell v. State, 393. 
Cronin v. Stoddard, 144. 
Croom v. State. 490. 
Crosby v. Snow, 198, 296. 
Crotty v. People, 172. 
Crow v. State, 30. 
Crowley v. Christensen, 46, 47, 82, 115. 
Cruse v. Aden, 281, 295. 
Crutz v. State, 197, 296. 
Cullen v. State, 116. 
Cunningham v. Berry, 452. 
v. State, 468. 
Curd v. Commonwealth, 148. 
Curran v. Owens, 281. 
v. Percival, 311, 324, 332. 
Curry v. State, 96, 103, 119, 409, 506. 
v. Tawas Tp., 188. 
Curtis v. State, 19. 
Custin v. Viroqua, 187. 
Cuthbert v. Conly, 124, 127. 
Decker v. Sargeant, 236, 432. 
Deehan v. Johnson, 172. 
Deering v. Chapman. 258. 
Deignan v. License Com'rs, 194. 
Delfel v. Hauson, 293. 
Dennehy v. City of Chicago, 181, 229. 
Deutschman v. Charlestown, 229. 
De Vaucene, Matter of, 64. 
Deveny v. State, 426. 
Devin v. Belt. 168. 172. 
Dewar v. People, 222. 
Dexter v. Town Council, 158, 174. 
Dickson v. Gamble, 184. 
Dillingham v. Blood. 259. 
Dillman v. People. 403. 
Disbrow v. Saunders. 147. 
Ditton v. Morgan. 319. 
Divine v. State, 474. 
Dixon v. State. 464, 477, 517. 
Dobson v. State, 414, 520. 
Doe v. Burnham. 259. 
Dolan v. Buzzell, 245. 
v. Green, 267. 
Dolan's Appeal, 191. 
Dolson v. Hope. 249. 
Donahoe v. Coleman, 272. 
Donaldson v. State, 534. 
Donnell v. State, 206. 
Donohue v. Maloney, 245. 
Donovan v. Commissioners of Fairfield 
Co., 97. 
Doolittle v. Lyman, 257. 
Doran v. Phillips, 112, 184. 
Dorman v. State, 40, 464, 477, 517. 
Dougherty, In re, 545. 
Douglass v. Douglass, 48, 115, 138. 
Douglasville v. Johns, 187. 
Dowdell v. State, 479, 515. 
Downey v. State, 467. 
Downing v. Porter, 354-358, 360. 
Downman v. State, 392. 
Downs v. State, 538. 
Drake v. Jordan, 37, 59, 83, 222. 
v. Kaiser, 37, 222. 
v. Kingsbaker, 344, 388. 
Draper v. Fitzgerald, 370, 415. 
Drapert v. State, 173. 
Drew Co. v. Bennett, 230. 
Druggist Cases, 207. 
Dubois v. Miller, 329. 
Du Bois v. State, 434. 
Dudley v. Buckfield, 271. 
v. Parker, 294. 
v. Sautbine, 369, 415, 426, 478, 499. 
v. State, 121, 409. 
Dufford v. Nolan, 167. 
Duke v. Marston, 486. 
Dukes v. State, 406, 415, 504, 517. 
Dunbar v. Boston, 242. 
v. Frazer, 172. 
v. Garrity, 252. 
v. Locke. 273. 
Duncan v. Commonwealth, 132. 
Dunlap v. Wagner, 311, 312. 
Duulavey v. Watson, 324. 
D. 
Dahmer v. State. 504. 
Daly v. State, 392. 
Danner v. Hotz, 342, 344, 388. 
Dansey v. State, 410, 460, 464, 467, 477, 
513, 517. 
Dant v. State, 504, 521. 
Darling v. Boesch, 165. 
v. St. Paul, 228. 
Darst v. People, 339, 388. 
Dater v. Earl, 269. 
Davenport v. Ryan, 328. 
Davidson v. State, 372, 415, 548. 
Davies v. McKnight, 318. 
Davis v. Bronson, 266, 270. 
v. Commonwealth, 192. 
v. Justice, 310. 
v. Slater, 274. 
v. Standish, 310, 311, 325, 334. 
v. State, 8, 217, 441. 
v. Wentworth, 253. 
Dawson v. State, 106, 116. 
Day v. Frank, 202. 
Dearborn v. Hoit, 272. 
Deck v. State, 516. 
Decker v. McGowan, 124, 127. CASES CITED. 
XXXIII 
Dunn, Ex parte, 173. 
v. State, 434. 
Dunnaway v. State, 390. 
Durach's Appeal, 55, 107. 
Durein v. Pontious. 293. 
Durkee v. Moses. 273. 
Duroy v. Blinn, 288, 308, 324. 
Durr v. Commonwealth, 535. 
Fairly v. State. 507, 521. 
Falmouth v. Watson, 218. 
Fant v. People. 20. 
Farbach v. State, 417, 426, 477, 499. 
Farley v. Geisheker, 348. 388. 
Farmer v. People, 418, 426, 477, 499. 
Farr v. Seaward, 348, 388. 
Farrall v. State, 531. 
Farrell v. State, 392, 459, 502. 540. 
Faulks v. People, 417, 426, 477, 499. 
Feek v. Bloomingdale, 45, 92, 222. 
Feineman v. Sachs, 269, 270. 
Feldman v. Morrison, 5, 18, 521. 
Fell v. State, 45, 50, 84, 92. 101, 124, 127, 
128, 149, 189, 190, 222, 223. 
Felton v. Fuller, 267. 
Fennell v. Zerber, 341, 388. 
Fenner v. State, 354. 
Fenton v. State, 13, 521. 
Kentz v. Meadows, 279, 298, 304, 325. 
Fertilizing Co. v. Hyde Park, 32, 83. 
Fetter v. Wilt, 435. 
Fetterer v. State, 467. 
Field v. Tibbetts, 259. 261. 
Finch v. Mansfield, 272. 
Fink v. Garman, 318. 
Finn v. Haynes, 111. 
Fish v. Manning, 459. 
Fishel v. Bennett, 269. 
Fisher v. District Court, 349, 388. 
v. Lord. 269, 270. 
v. McGirr, 52, 53, 351. 
Fitchburg R. Co. v. Grand Junction R. 
Co., 26. 
Fitzenrider v. State, 424. 
Fitzpatrick v. State, 513. 
Flaherty v. Longley. 354, 357. 
Fleming v. Commonwealth, 434. 
v. New Brunswick, 16, 521. 
Flersheim v. Cary, 246. 
Fletcher v. Forler, 319, 322. 
v. People, 549. 
Flint v. Gauer, 299, 315. 
Flower v. State, 206, 507. 
v. Witkovsky, 64, 289, 317. 
Floyd v. Commissioners of Eatonton, 
62, 220, 545. 
Flynn v. Fogarty, 309, 310, 323, 324. 
v. Galesburg, 418, 426, 477, 499. 
Foote v. Fire Department, 26. 
Ford v. Ames, 319. 
Foreman v. Hunter, 467. 
Forkner v. State, 474. 
Forrester v. State, 368, 415. 
Fortner v. Duncan, 220. 
Forty-Three Cases Cognac Brandy, 395. 
Forwood v. State, 409. 
Foster v. Brown, 223. 
v. Burt, 180. 
v. Frost, 169. 
v. Haines, 385. 
v. Kansas, 37, 72, 81. 83. 86, 222. 
v. State, 2, 8, 380, 381, 492. 
v. Thurston, 270. 
Fountain v. Draper, 299, 315, 424. 
E. 
Eagan v. State, 12, 469, 474. 521. 
Easterling v. State. 392. 507. 
East Saginaw v. Saginaw Co. Treas'r, 
186. 
East St. Louis v. Wehrung, 184, 228, 232. 
Eckert v. Davis, 344, 388. 
Eckhart v. State, 535. 
Edgar v. State. 12, 35, 469, 521, 531. 
Edinburg v. Hackney, 187. 
Edwards v. Brown, 319. 
v. State. 122, 206, 211. 
Effinger v. State, 479, 515. 
Ehlert v. State, 531. 
Eilenbecker v. District Court, 62, 545. 
Eisenman v. State, 475. 
Elam v. State, 533, 544. 
Eldora v. Burlingame, 221. 
Elkin v. Buschner, 333, 423, 426, 478, 499. 
Elkins v. State, 508. 
Elk Point v. Vaughn, 50, 84, 101, 124, 
127, 149, 189, 190. 222, 223, 506. 
Elliott v. Barry, 317. 
Ellsworth v. Mitchell, 263, 276. 
Elrod v. State, 206. 
Elshire v. Schuyler, 308, 324. 
Elwood v. Price, 344, 388. 
Ely v. Webster, 269. 
Emerich v. Indianapolis, 229. 
Emerson v. Noble, 404. 
Emery v. Lowell, 187. 
Emmert v. Grill, 282. 
Emory v. Addis, 300, 310. 
Emporia v. Volmer, 20, 62, 227, 229, 545. 
Engle v. State, 424. 
Engleken v. Hilger, 317. 
v. Webber, 327. 
English v. Beard, 289, 306. 
v. State. 430. 
Ennis v. Shiley, 326. 
Erwin v. Stafford, 267, 269. 
Escanaba Trans. Co. v. Chicago, 24, 33, 
72, 86. 
Eslinger v. East, 168. 
Eureka Vinegar Co. v. Gazette Printing 
Co., 18, 521. 
Evans v. Hall, 249. 
v. State, 510. 
Excise Com'rs v. Taylor, 2,16,17, 521. 
F. 
Fahey v. State, 109, 370, 415. 
Faircloth v. State, 374. 
INTOX.LIQ.-C XXXIV 
CASES CITED. 
Fowle v. Blake, 251. 
Fowler v. State. 513. 
Fox v. Wunderlich, 308, 324, 325. 
Foxcroft v. Crooker, 204. 
Frank v. Hoey. 434. 
v. O'Neil, 272. 
Frankfort v. Aughe. 449. 
Franklin v. Schermerhorn, 56, 278, 293, 
325. 
v. Westfall, 90, 127, 190. 
Frasier v. State, 479, 515. 
Freese v. State. 106. 117. 
v. Tripp. 279, 309, 323. 
French v. Noel, 170, 173. 
v. People. 373, 415. 
Frese v. State, 12, 410, 469, 521, 536, 548. 
Friend v. Dunks. 281, 309, 323, 329. 
Fries v. Porch, 362. 
Frisbie v. State, 467, 520. 
Fritz v. State, 3, 5, 17, 521. 
Fuller v. Leet, 268. 
v. McDonnell, 341, 388. 
Fullwood v. State. 98, 371, 415. 
Funk v. Israel, 362. 
Furman v. Knapp, 124, 127. 
Glass v. Alt, 256. 
Glenn v. Lynn, 156, 161. 
v. State, 538. 
Gloversville v. Howell, 45. 92, 222. 
Goddard v. Jacksonville, 54, 339, 388. 
Godfreidson v. People, 6. 
Godfrey v. State, 130. 
Goetz v. State, 417, 426. 477, 499. 
v. Stutzman, 349, 388. 
Goff v. Fowler, 178. 
Goforth v. State, 145. 
Golden v. Bingham, 162, 168. 
Goldman, In re. 173. 
Goldsticker v. Ford. 42, 50. 
Gomm v. Rhodes, 23. 
Good v. Towns, 331. 
Goodenough v. McGrew, 325. 
Goodhue v. Commonwealth, 481. 
Goodwin v. Clark, 274. 
v. Smith, 162, 168. 
v. Young, 280. 
Gordon v. State, 45. 81, 92, 222. 
Gorsuth v. Butterfield, 23, 254, 414. 
Gostorf v. State, 8. 
Gould v. Atlanta, 30. 
Graff v. Evans. 142. 528. 
Graham v. Fulford. 325. 
Granger v. Hayden, 201. 
v. Knipper, 305. 
Grant v. State, 403, 524. 
Graves v. Ranger, 251. 
Gray v. Baltimore. 44. 79, 107. 
v. Davis. 354, 357, 360. 
v. Kimball. 52, 351. 
v. Stienes, 345, 388. 
Great Falls Bank v. Farmington. 259. 
Greene v. James. 351. 
Greene Co. v. Wilhite, 198, 29 j, 370, 415. 
Greenlee v. Schoenheit, 307. 
Griffin v. Atlanta, 129, 189, 387. 
Griffith v. Wells, 249. 
Grills v. Jonesboro, 236, 432. 
Grimme v. Commonwealth, 461. 
Groesch v. State, 47. 115. 
Groscap v. Rainier, 162. 168, 173. 
Gross v. Allentown, 232. 
v. Scarr, 434. 
Grummon v. Holmes, 164. 
Grupe v. State, 472. 
Grusendorf v. Howat, 70. 
Guenther v. Day, 356. 
Guerrero, In re, 181. 
Gulick v. State, 529. 
Gullikson v. Gjourd. 294, 298. 
Gunnarssohn v. Sterling. 217, 511. 
Guptill v. Richardson. 18, 365, 521. 
Gurley v. State, 147. 
Gustafson v. Wind, 319. 321, 329. 
Gutierrez, Ex parte. 58. 
Gutzweller v. People, 217. 
G. 
Gabel v. Houston, 222, 235. 
Gaertner v. Fond du Lac, 193. 195. 
Gahagan v. Railroad Co.. 532. 
Gaiocchio v. State, 369. 397. 415. 
Galena & C. R. Co. v. Loomis, 26. 
Gallagher v. People, 425, 426. 533. 
Galligan v. Fannan, 249. 
Galloway v. State, 12, 469, 521. 
Gandy v. State, 64. 
Ganssly v. Perkins, 324, 325. 
Garbracht v. Commonwealth, 434. 
Gardner v. People, 223. 
Garner v. State, 100, 416, 426, 477, 499. 
Garrett v. Polk Co., 365. 
Garst v. State, 467, 516. 
Garvey v. Commonwealth, 551. 
Gassett v. Godfrey, 269. 
Gathings v. State, 370, 415. 
Gault v. State, 12, 216, 469, 521. 
Gayle v. Owen County Court, 64, 97. 
Gaylord v. Soragen. 269. 270. 
Geebrick v. State, 45, 92, 222. 
George v. Gobey, 298. 
Geraghty v. State, 478. 
Gerlach v. Skinner, 246. 
Gening v. State. 374. 507. 
Gibbons v. Ogden. 25. 
Gignoux v. Bilbruck, 139. 
Gilbert v. State, 479, 515. 
Gil ham v. Wells, 236. 432. 
Gill v. Kaufman, 268. 434. 
v. Parker, 52, 351, 354. 
v. State, 419. 
Gillan v. State, 406, 415, 422, 504. 
Gillen v. Riley, 434. 
Gilmore v. Mathews, 325. 
H. 
Hackett v. Smelslev. 283, 299, 308, 310. 
315, 317, 324, 325, 330, CASES CITED. 
XXXV 
Haddox v. Clarke Co., 94. 
Hagan v. State, 461. 
Haines v. Hanrahan, 16, 521. 
v. State, 430, 538. 
Hainline v. Commonwealth, 206. 
Hale v. State, 535. 
Halfin v. State, 106, 116, 386, 410. 
Halfman v. Spreen, 344, 345, 388. 
Hall v. Barnes, 337. 
v. Bastrop. 185. 
v. Germain, 302, 334. 
v. McKechnie, 510. 
v. State, 241, 393, 517. 
Halloran v. McCullough, 177. 
Hamilton v. Carthage, 535. 
v. Goding, 245, 403. 
v. State, 519. 
Hammond v. Haines, 45, 92, 222. 
Handy v. People. 137, 183. 
Hanley v. Wetmore, 88. 
Hanlon v. State, 524. 
Hannibal v. Guyott, 223. 
Hanson v. State, 369, 415. 
Hapgood v. Needham, 259. 
Harbaugh v. Monmouth, 221. 
Hardten v. State, 59. 
Hare v. State, 474. 
Harmer, In re, 347, 388. 
Harmon, In re, 75, 86. 
Harney v. State, 381, 492. 
Harper v. State. 209. 538. 
Harrington v. McKillop, 310. 
v. State. 381, 492. 
Harris v. Livingston, 23, 414. 
v. State, 482. 
Harris' Case. 142, 528. 
Harrison v. Ely, 425, 533. 
v. Lockhart, 274. 
v. Nichols, 244. 
v. State, 75, 86. 
Hart v. Duddleson. 311. 
Hartley v. Henretta, 340, 388. 
Harvey v. State, 393, 406, 415. 504. 
Haskill v. Commonwealth, 507. 
Hatfield v. Commonwealth, 5, 64. 
Hathaway v. Moran, 254. 
Hauck, In re, 64. 
Haug v. Gillett, 132, 434. 
Hausberg v. People, 17, 521. 
Haver v. State, 471. 
Hay v. Parker, 246. 
Hayes v. Phelan, 310. 
Haynie v. State, 210. 
Hays v. State, 372, 415. 
Hearn v. Brogan, 50. 84, 101, 104, 127, 
149, 156, 189, 190, 222, 223. 
Heath v. State, 130, 132. 
Heblich v. Judge of Hancock Co. Ct., 
172. 
Heck v. State, 50, 83, 115, 435, 487. 
Hedderich v. State, 50,115, 124, 127, 487. 
He n v. Smith, 170. 
Heinssen v. State, 428. 
Heise v. Council, 64. 
Helverstine v. Yantes, 64. 
Hemmens v. Bentley, 326. 
Henderson v. Mayor, 72, 83, 86. 
v. State, 449. 
Hendersonville v. Price, 147. 
Henke v. McCord, 220. 
Hennepin Co. Com'rs v. Robinson, 155. 
Henry v. State, 102, 405, 456, 465, 479, 
515, 534. 
Hensley v. State, 486. 
Hen sly v. State, 505. 
Hepler v. State, 507. 
Herlock v. Riser, 250. 
Herman v. State, 81. 
Herron v. State, 435. 
Hetzer v. People, 226. 
Hewitt v. State, 61. 
Hibbard v. People, 52, 351, 352. 
Higgins v. State, 105. 
Hildreth v. Crawford, 214. 
Hill v. Berry, 319. 
v. Commissioners, 227. 
v. Dalton, 225, 464, 477, 517. 
v. People, 383. 
v. Perry, 162, 168. 
v. Spear, 266, 273. 
v. State, 415, 419, 424, 503. 
Hinckley v. Germania Fire Ins. Co., 247. 
Hine v. Belden, 352. 
Hingle v. State, 428. 
Hinson v. Lott, 36, 44, 68. 79, 107. 
Hintermeister v. State, 475. 
Hipp v. State, 369, 415. 
Hirn v. State, 19, 190, 446. 
Hitchner v. Ehlers, 299, 315. 
Hochstadler v. State, 150. 
Hodgman v. People, 505. 
Hodgson v. Temple, 269. 
Hofner v. State, 368, 415. 
Hoglan v. Commonwealth, 173. 
Holden v. Brooks, 273. 
Hollender v. Magone, 7. 
Holley v. State, 45, 64, 92, 222, 406, 415, 
504. 
Hollis v. Davis, 290. 
Holman v. Johnson, 248. 
Holmes v. State, 420. 
Holt v. O'Brien, 251. 
Hohendorf v. State, 210. 
Hooper v. State, 206, 467. 
Hoover, In re, 35, 36, 46, 47, 82, 115. 
v. State, 479, 515. 
Hopkins v. Lewis, 75, 86. 
Horgan's Liquors, In re, 52, 351, 358. 
360, 366. 
Horn v. Chicago, etc., R. Co., 26. 
v. Smith, 308, 324. 
Hornaday v. State, 178. 
Hornig v. Bailey, 356. 
Horning v. Wendell, 56, 278. 
Hosea v. State, 540. 
Hoskey v. State, 480. 
Hotchkiss v. Finan, 269. 
House v. State, 223. 
Houser v. State, 121, 409, 521. 
Houtsch v. Jersey City, 393. XXXVI 
CASES CITED 
Howard v. Harris. 274. 
v. State, 340, 388, 486, 511. 
Howe v. Jolly, 242. 
v. State. 448. 
v. Stewart. 245. 
Howell v. State, 40. 
Hoxie, Liquors of, Tn re, 354, 365. 
Hubbard v. State, 474. 
Hudson v. Geary. 393. 
v. Weston, 324. 
Huff v. Aultman. 317, 327. 
Huffsmith v. People, 50, 84, 127, 189, 
190, 226. 
Huffstater v. State, 508. 
Huggins v. Kavanagh, 293, 299, 315, 327. 
Hughes v. State, 544. 
Hulstead v. Commonwealth, 464, 477, 
517. 
Humpeler v. People. 504. 
Hunter v. State. 140, 416, 417, 426, 477, 
499. 
Hurber v. Baugh. 127. 189. 
Hurl, Ex parte, 227, 230, 232. 
Hussey v. State, 393. 
Hutchinson v. Hubbard, 324. 
Hyman v. State, 64 
Jones, n re, 227. 
v. Bates. 293, 296, 299, 315, 316, 332 
v. Fletcher, 245, 354, 357, 365. 
v. Hard, 68. 
v. Hilliard. 161. 
v. McLeod. 250. 
v. Moore Co. Com'rs, 154, 172. 
v. People, 37. 81. 222. 
v. Robbins, 62, 545. 
v. Root, 52, 351, 359. 
v. State, 105, 206, 490, 547. 
v. Surprise, 3, 5, 249, 273. 
Jordan v. District Court, 81. 
v. State. 464, 477, 517. 
Josephdaffer v. State, 521. 
Judge v. Jordan, 328, 332. 
v. Kahl, 341, 388. 
v. Kribs, 344, 388. 
Junction City v. Webb, 464, 477, 517. 
Justice v. Lowe, 275. 
K. 
Kadgihn v. Bloomington, 119. 
Kadgin v. Miller, 325. 
Kaliski v. Grady, 109. 
Kamman v. People, 425. 
Kammann v. People, 520, 532, 533. 
Kane v. People, 451. 
Kansas City v. Flanders, 119. 
v. Muhlback, 410. 
Kaufman v. Dost,al. 37. 83, 222, 344, 388. 
Kaufmann v. Village of Hillsboro, 414. 
Kearney v. Fitzgerald, 299,300,309,315, 
317, 323. 
Kee v. McSweeney, 450. 
Keedy v. Howe, 298, 325. 
Kehrig v. Peters, 298. 
Keiser v. Lines. 162, 168. 
v. State. 122, 132. 406, 415, 504, 519. 
Keith v. State. 75, 86. 
Keiwert v. Meyer, 267. 
Keller v. State, 46, 115, 141, 503, 504. 
Kellerman v. Arnold. 325. 
Kelly v. Excise Com'rs, 19. 
Kennedy, Ex parte, 45, 94, 222. 
v. Favor. 363. 
v. Saunders, 314. 
v. Sullivan, 298, 325. 
Kent v. Willey, 363. 
Kentucky Club v. Louisville, 142, 528. 
Keokuk v. Dressell, 229. 
Kerkow v. Bauer, 17, 293. 311. 323, 521. 
Kessinger v. Hinkhouse. 37. 83. 2.2. 
Ketcham v. Fox, 301, 325, 335. 
Kidd v. Pearson, 37. 72, 83,86, 222. 
Kidder v. Blake, 258. 
v. Knox, 249. 
v. Norris. 250. 
Kie v. United States, 395. 
Kilbourn v. State, 470. 
Kimball v. People. 4)4. 
Kimmish v. Ball, 72, 86. 
King, In re, 170. 
I. 
Ihinger v. State, 531. 
Ihrig v. State, 415. 
Independence v. Noland. 124. 127. 
Indianapolis v. Fairchild. 120, 409. 
Ingersoll v. Skinner. 46, 115. 
Insurance Co. v. Foley, 425, 533. 
Intoxicating Liquor Cases, 2, 8, 49, 115, 
154. 
J. 
Jackson v. Boyd, 234. 
v. Brookins, 283, 299, 301, 311, 315. 
v. Noble, 309. 323, 326. 
v. State, 5, 516. 
Jacobs v. Stokes, 265. 
Jakes v. State, 206. 
James v. State, 9, 94, 98. 
Jamison v. Burton, 418, 426, 477, 499. 
Jane v. Alley, 174. 
Janks v. State. 373, 415, 430, 453, 480. 
Jeffries v. State, 411. 
Jensen v. State, 428. 
Jewett v. Wanshura, 300, 317. 
Jockers v. Borgman. 308, 316, 324, 325. 
Johnson v. City of Atlanta, 500. 
v. Drummond, 312. 
v. Grimminger, 302. 
v. Meeker, 259. 
v. People, 380. 453, 548, 549. 
v. Schultz, 293, 309. 323, 327, 336. 
v. State, 368, 369, 372, 414, 415, 422, 
448, 464, 477, 517. 
v. Williams. 352. 
Johnston v. State, 16, 521. CASES CITED. 
XXXVII 
King v. Bell. 334. 
v. Cappellar. 108, 117, 179. 
v. Haley, 306, 312,315. 
v. McEvoy, 68. 
v. State, 9, 206, 451, 505. 
v. Sutton, 58. 
Kingston v. Osterhoudt. 122. 
Kinnebrew, Ex parte, 44, 79. 107. 
v. State. 8, 368, 415. 
Kinser v. State, 444. 
Kirchner v. Myers, 299. 310. 315. 
Kirkwood v. Autenreith, 369, 415, 510. 
Kitson v. Mayor of Ann Arbor, 21. 
Kizer v. Randleman, 7. 
Klare v. State, 17, 521. 
Klein v. State, 414. 
Klepfer v. State. 524. • 
Kling v. Fries, 266. 
Klug v. State, 371, 393, 415, 492, 498. 
Knarr, In re, 172. 
Kniper v. Louisville, 230. 
Knowles v. State. 521. 
Kober v. State, 405, 456. 
Koblenschlag v. State, 416, 426, 477, 499. 
Koch v. State, 513. 
Koerner v. Oberly, 309, 323, 325. 
Koester v. State, 49, 115, 382. 
Kohler, Ex parte, 239, 240. 
Kohn v. Melcher, 30, 44, 48, 79, 107, 115, 
138, 249, 265. 
Koop v. People. 20, 393, 515. 
Koopman v. State, 448. 
Korman v. Henry, 246. 
Krach v. Heilman. 311, 324. 
Kraft v. City of Keokuk, 187. 
Kramer v. Marks, 435. 
Krant v. State, 133. 
Kreamer v. State, 417, 426, 441, 477, 499. 
Kreiss v. Seligman, 269. 
Kreiter v. Nichols, 278, 298, 325. 
Kroer v. People, 393, 479, 515, 549. 
Kuhn v. Common Council, 46, 115. 
Kurth v. State, 55. 107, 141. 
Kurz v. State, 17, 421, 521. 
Kusta v. Kimberly, 112. 
Lauten v. Allenstown, 205. 
v. Rowan, 269. 
Lawrence, Ex parte, 124, 127, 230. 
v. Gracy, 118. 144. 
v. Monroe, 234. 
v. State, 430, 454. 
Lawrenceburg v. Wuest, 229. 
Lawson v. State, 524. 
Layton v. State. 475. 
Lea v. State. 441, 464, 477, 517. 
Leary v. State, 467. 
Lebkovitz v. State, 544. . 
Legori v. State, 463. 
Lehritter v. State, 448. 515. 
Leigh v. Westervelt. 175. 
Leister's Appeal, 170, 173. 
Leisy v. Hardin, 70. 72-74, 78, 86, 273. 
Lemon v. Peyton, 45, 92, 93, 169, 222. 
v. Wagner, 35. 
Lemons v. State, 524, 550. 
Lemp v. Fullerton, 73, 86. 
Leonard v. Saline County Court, 94. 
Leppert v. State, 412, 511. 
Lester, Ex parte, 173. 
v. Price, 135. 173. 
Levi v. State, 238. 
Levy, Ex parte, 170, 171. 
Lewis v. United States, 130. 
v. Welch, 249. 
Lexington v. Sargent, 174. 
Leyner v. State, 537. 
License Cases, 24, 29, 31, 33, 37, 69-72, 
81, S3, 222. 
License Com'rs v. O'Conner, 194. 
License Tax Cases, 113, 125. 
Licks v. State. 226. 
Lightner v. Commonwealth, 200. 
Ligonier v. Ackerman, 187. 
Liles v. State, 422, 503. 
Lillensteine v. State. 414. 
Lincoln v. Smith, 33, 38, 52, 53, 351, 483, 
525. 
Lincolnton v. McCarter, 393. 
Lindsey v. Stone. 272. 
Liquor Locations, In re, 435. 
Liquors of Horgan, In re, 52, 351, 356, 
360, 366. 
Liquors of Hoxie, In re, 354, 365. 
Liquors of McSoley, In re, 62, 351, 365, 
545. 
Liquors of Young, In re, 354. 
List v. Padgett, 164. 
Littlefield v. Peckham, 62, 545. 
Littleton v. Fritz, 54, 339, 388. 
v. Harris, 346, 388. 
Livingston v. Corey, 161. 
Loan v. Etzel, 302. 
v. Hiney, 302. 
Locke's Appeal, 45, 92, 222. 
Lodano v. State, 50, 115, 487. 
Loeb v. Attica, 223. 
v. Duncan, 159. 
v. State, 370, 415. 
Long v. State, 134, 516. 
Loon ex' v. State, 405, 456. 
L. 
Laboyteaux, Ex parte, 138. 
La Croix v. Fairfield Co., 50, 51, 84, 101, 
115, 124, 127, 149, 189, 190, 222, 223. 
Lacy v. State, 519. 
Ladd v. Dillingham, 251. 
La France v. Krayer, 301. 
Lambert v. State, 148. 
v. Stevens, 158. 
Lane v. State, 368, 372, 415. 
Lang v. Lynch, 36, 273. 
Languille v. State, 107. 
La Norris v. State, 139. 
Lantznester v. State, 477. 
Larzelere v. Kirchgessner, 293, 325, 327, 
336. 
Lathrope v. State, 17, 369, 415, 521. 
Lauer v. State, 369, 415. XXXVIII 
CASES CITED. 
Loranger v. Jardine, 249. 
Lord v. Chadbourne, 245. 
Loughridge v. State, 461, 490. 
Love v. Porter. 435. 
Lovelan v. Briggs, 332. 
Lovingston v. Board of Trustees, 179. 
Low v. Austin, 68. 
Lowrey v. Gridley, 354, 355, 357. 
Lowry v. Bordien, 263. 
Lucker v. Commonwealth, 500. 
Ludlow v. Hardy, 254. 
Ludwick v. Commonwealth, 425, 533. 
Lueken v. People, 312. 
Lunt's Case, 46, 115. 
Luton v. Palmer, 58, 440, 482. 
Lutz v. Crawfordsville, 124,127, 218, 220. 
Lydick v. Korner, 173, 188. 
Lyng v. Michigan, 73, 79, 107. 
Lynn, Ex parte. 45, 92, 101, 222. 
Lyon v. Fleahmann, 337. 
McLaughlin v. State, 464, 477, 517. 
Macleod v. Geyer, 333. 
McLeod v. Scott, 170. 
McMahon v. Sankey, 308, 324, 325. 
McManigal v. Seaton. 332, 494. 
McMillan v. State, 456, 534. 
McNeil v. Collinson, 286, 415. 
McReynolds v. State, 386, 410. 
McSoley, Liquors of, In re, 62, 351, 865, 
545. 
McVey v. Marratt, 301-303. 
McWilliams v. Phillips, 183, 184. 
Maguire, In re. 237, 398. 
Maize v. State, 45, 92, 222. 
Mallet v. Stevenson, 358, 360. 
Mankato v. Arnold, 452. 
Mansfield v. State, 464, 477, 517. 
v. Stoneham, 205. 
Manvelle v. State, 470. 
Mapes v. People, 426, 478, 499, 533. 
Marbury v. Madison, 83. 
Marcus v. State, 405, 456. 
Marienthal v. Shafer, 244. 
Marietta v. Alexander. 452. 
Markle v. Akron. 17, 222, 521. 
Marmont v. State, 142, 528. 
Marquardt v. State, 479, 515. 
Marshall, Ex parte, 55, 107. 
v. State, 372, 415. 
Martel v. East St. Louis. 188. 
Martin v. State, 51, 115, 127, 142, 189, 
192, 194, 368, 415, 464, 477, 517, 528. 
Martinsville v. Frieze, 229. 
Marxhausen v. Commonwealth, 397. 
Mascowitz v. State, 419. 
Mason v. Lothrop, 52, 351, 363, 403. 
v. Trustees, 217. 
Massey v. State, 403. 
Maxwell v. State, 414. 
Mavers v. Smith, 299, 308, 315, 324, 332, 
336. 
Mayor of Columbia v. Beasly, 232. 
Mavor of New York v. Mason, 114, 119, 
409, 459. 
Mayor of Rome v. Lumpkin, 124, 127. 
Mayson v. City of Atlanta, 155. 223, 508, 
541. 
Mead v. Stratton. 279, 301, 302, 310, 311. 
Megowan v. Commonwealth, 235, 479, 
515. 
Mehan v. State. 507. 
Meidel v. Anthis, 279. 
Meier v. State, 449. 
Meitzler's Application, 162, 168. 
Melchoir v. McCarty, 248, 249. 
Menken v. Citv of Atlanta, 37, 45, 83, 92, 
101, 127,129/189, 190, 222, 373, 387, 415. 
Merkle v. State, 520. 
Merritt v. State, 386, 410. 
Meservey v. Gray. 57, 272. 
Metcalf v. State. 161. 
Metropolitan Board of Excise v. Barrie, 
28, 33, 37, 46, 50, 81, 84, 101. 115, 124, 
127, 128, 149, 189, 190, 222, 223. 
Mette v. McGuckin, 30, 48, 115,138. 
M. 
McAllister v. State, 26. 
McArthur v. State, 64. 
McCann v. Roach. 327. 
McCarty v. Gordon, 268. 
v. Wells, 310, 333. 
McClain, Ex parte, 435. 
McClay v. Worrall, 286, 311. 
McClure v. Braniff, 343, 388, 554. 
v. State, 503. 
McConihe v. McMann, 268. 
McCool v. State, 472. 
McCracken v. State, 538. 
McCreary v. Rhodes, 159. 
v. State, 44, 79, 107. 
McCuen v. State, 40, 464, 473, 477, 517. 
McCullough, In re, 93, 168. 
McCutcheon v. People, 370, 415, 418, 426, 
477, 499. 
McDonald v. Casey, 317, 424. 
McDougall v. Giacomini, 21. 
McDuffie v. State. 2. 
McEntee v. Spiebler. 304. 
McEvoy v. Humphrey, 325. 
McGarvey v. Puckett, 275. 
McGee v. Beall, 163. 
v. McCann. 281, 293, 301. 
McGlinchy v. Barrows, 354, 356, 357. 
McGruder v. State, 64, 104, 406, 415, 504 
McGuinness v. Bligh, 265. 
McGuire v. Commonwealth, 113, 125. 
v. Glass, 46, 115, 315. 
v. State, 44, 79,107, 209, 416, 426,477, 
499. 
McGunn v. Hanlin, 276. 
McHenry v. Chippewa, 199. 
Mack v. Lee, 267. 
Mackin v. State, 98. 
McKinney v. Salem. 45, 50, 84, 92, 124, 
127, 189, 190, 222, 223. 
McLanahan v. Syracuse, 184. 
McLane v. Bonn. 85. 
v. Leicht, 37, 54, 81, 83, 222, 339, 388. CASES CITED. 
XXXIX 
Meyer v. Baker, 435. 
v. State. 517. 
Miazza v. State, 513. 
Miles v. State, 474. 511. 
Miller, Ex parte, 165. 
v. Jones, 64. 
v. Patterson, 300. 
v. State, 81, 343, 388, 393, 410, 417, 
426, 440, 477, 499. 
v. Wade, 164, 170. 
Mills v. Perkins, 210. 
Milwaukee R. Co. v. Kellogg, 311. 
Minden v. Silverstein, 235, 369, 415. 
Minnehaha Co. v. Champion, 104. 
Mitchell v. Ratts, 293. 
v. Scott, 275. 
v. State, 517. 
Mogler v. State, 370, 415, 477. 
Molihan v. State. 371, 415. 
Monaghan v. Reid, 266. 
v. State, 420. 
Monroe v. People, 531. 
v. State, 106, 116. 
Monroe Co. Com'rs v. Kreuger, 188. 
Monses v. State, 393. 
Montgomery v. State, 64. 
Monty v. Arneson, 244. 
Moog v. Espalla, 118, 249. 
Moore v. Indianapolis, 32, 37, 50, 83, 84, 
124, 127, 149, 182, 189, 190, 222, 
223, 230. 
v. People, 207. 
v. State, 20, 386, 410, 516, 518. 
Moran v. Goodwin, 56, 278, 284, 308, 324. 
Morel v. State, 479, 515. 
Morenus v. Crawford, 299, 315, 329. 
Morey v. Commonwealth, 555. 
Morgan v. Commonwealth, 468. 
v. Koestner, 344, 388. 
v. State, 45, 92, 222, 381, 492, 510. 
Morgan's S. S. Co. v. Board of Health, 
72, 83, 86. 
Morrill v. Thurston. 535. 
Morris v. People, 548. 
v. Rome, 236, 432. 
v. State, 428. 
Moundsville v. Fountain, 217. 
Mt. Pleasant v. Vansice, 220, 222. 
Mudgettv. Morton, 263. 
Mugler v. Kansas, 32, 37, 54, 72, 81, 83, 
86, 222. 
Mulcahy v. Givens, 296, 312, 553. 
Mulford v. Clewell, 306, 307, 309, 312, 
323, 324. 
Mullen v. State, 472. 
Muller v. Buncombe Co. Com'rs, 170. 
Mullinix v. People, 537, 549. 
Mullins v. Collins, 368, 415. 
Mulreed v. State, 417, 426, 477, 499. 
Munn v. Illinois, 24, 33, 83. 
Murphy v. Curran. 325, 333. 
v. Hobbes, 325. 
v. Monroe Co. Com'rs, 156, 165. 
v. Montclair. 17, 521. 
v. People, 425, 533. 
Murphy v. State. 414, 544. 
Musgrave v. Hall, 244. 
Musick v. State, 10. 
Myers v. Carr, 267. 
v. Conway, 305. 
v. Kirt, 302. 
v. People, 464, 477, 517. 
v. State, 17, 521, 544. 
N. 
Nace v. State, 389. 
Napier v. Hodges, 107. 
Nashville v. Linck, 235. 
Neale v. State, 464, 517. 
Needham v. State, 455, 498. 
Neideiser v. State, 371, 415. 
Neighbors v. Commonwealth, 64, 102, 
500, 534. 
Nelson v. United States, 35,396, 446, 464, 
477, 517. 
Neppv. Commonwealth, 170. 
Netso v. State, 17, 521, 
Neu v. McKechnie, 311, 325. 
Neuman v. State, 196, 449, 503. 
Nevin v. Ladue, 16, 17, 521. 
New v. State, 110. 
New Decatur v. Laude, 504. 
New Gloucester v. Bridgham, 471. 
New Hampton v. Conroy, 223. 
Newlan v. Aurora, 511. 
Newman v. State, 207. 241, 434, 477. 
New Orleans v. Jane, 123, 139. 
New Orleans Gas-Light Co. v. Louisiana 
Light Co., 24, 25, 27, 33, 83. 
New Orleans Water-Works Co. v. St. 
Tammany Water-Works Co., 32, 83. 
Niagara Fire Ins. Co. v. De Graff, 247. 
Nichols v. Valentine, 139. 245. 
Nicholson v. People, 388, 486. 
Nicrosi v. State, 409. 
Niles v. Fries, 244. 
v. Rhodes, 250. 
Ninenger v. State, 490. 
Nixon v. State, 206. 
Noecker v. People, 368, 415, 507. 
Norcross v. Norcross, 19. 
Norris v. Langley, 259. 
Northern Pac. R. Co. v. Whalen, 175, 
288. 
Northwestern L. Ins. Co. v. Muskegon 
Bank, 425, 533. 
Northwestern Manuf'g Co. v. Wayne 
Circuit Judge, 26. 
Norton v. State. 449, 490, 534, 551. 
N owotny v. Blair, 319. 
o. 
O'Brien v. Putney, 301. 
v. State, 409, 449. 
O'Bryan v. Fitzpatrick, 219. 
v. State, 455. 
O'Connell v. O'Leary, 282, 420. XL 
CASES CITED. 
O'Conner v. Couzen. 337. 
O'Connor v. State, 392, 540. 
O'Driscoll v. Viard, 154. 
O'Flinn v. State, 148, 415. 
O'Keefe v. State, 526. 
O'Leary v. Frisbey, 299, 315. 
v. State, 369, 415. 
Olmstead v. Crook, 95, 98, 99. 
v. State, 450, 459, 513, 519. 
Olson v. Hurley, 250. 
Omit v. Commonwealth, 429. 
Orcutt v. Nelson, 266. 
v. Symonds, 256. 
Osborn v. Sargent, 535. 
Osgood v. People, 468. 
Oshe v. State. 389, 450. 
Ottumwa v. Schaub, 192. 
Our v. Commonwealth, 485. 
Our House v. State, 54, 339, 345, 388, 460. 
Overall v. Bezeau, 402. 
Overman v. State, 390. 
Overseers, etc., v. Warner. 19. 
Oviatt v. Pond, 38, 53, 245, 351. 
People v. Baird, 62, 545. 
v. Ball, 479, 515. 
v. Baumann, 371, 415. 
v. Beadle, 64, 
v. Beller, 393, 521. 
v. Bennett, 275. 
v. Blake, 369, 415. 
v. Board of Com'rs, 194. 
v. Bradley, 142, 465, 528. 
v. Bradt, 472, 500. 
v. Breidenstein, 482. 
v. Brown, 50, 115, 383, 487, 543. 
v. Brumback, 311. 
v. Buffum, 132. 
v. Butler, 58. 
v. Capen, 434. 
v. Carty, 555. 
v. Charbineau, 442, 533. 
v. Cowles, 548. 
v. Cox, 393, 498. 
v. Cregier, 227. 
v. Crilley, 7, 16, 17. 521. 
v. Cummerford, 393. 
v. Davis, 163. 
v. Decarie, 445. 
v. Drennan, 372, 415. 
v. Eastwood, 532. 
v. Forbes, 195. 
v. Foster, 18, 521. 
v. Furman, 235. 
v. Gadway, 64. 
v. Gallagher, 37, 81, 222. 
v. Garrett, 420. 
v. Gilkinson, 449, 460. 
v. Gregg, 138. 
v. Greiser, 140. 
v. Haas, 445, 535, 540. 
v. Hannon, 138. 
v. Harmon, 442. 
v. Hart, 17. 521, 538. 
v. Haug. 47, 52, 63, 115, 351. 
v. Haughton, 194. 
v. Hawley. 2, 17, 26, 28, 37, 84, 127, 
190, 222, 521. 
v. Henschel, 17, 505, 521, 548. 
v. Hicks, 492, 495, 498. 
v. Higgins, 393. 
v. Hinchman, 457, 500. 
v. Hughes, 369, 415. 
v. Hulbut, 494. 
v. Husted, 459. 
v. Jefferson. 507. 
v. Jones, 176. 
v. Krank, 428, 506. 
v. Kridler, 498. 
v. Kropp, 410. 
v. Lani ng, 64, 203. 
v. Lester, 132. 
v. Marx, 26. 
v. Meyers, 46, 115, 192. 
v. Neumann. 421. 
v. Norton, 176. 
v. O'Donnell, 442. 
v. Page. 453. 
v. Paquin, 440, 508. 
P. 
Padgett v. State, 121, 409. 
Page v. State, 19, 421. 
Palmer v. Doney, 120, 409. 
v. President, 199. 
v. State. 26. 
Palmer's License, In re, 164. 
Pancake v. State, 515. 
Parker v. Commonwealth, 45, 92, 206, 
211, 222. 
v. State, 428, 478, 510. 
Parkinson v. State, 64, 415, 421, 477. 
Parsley v. Hutchins, 124, 127. 
Paschal v. State, 403. 
Patten v. Centralia, 20, 393. 
Patterson v. Kentucky, 72, 83, 86. 
v. State, 392. 
Patton v. State, 512, 536. 
Payne v. State, 417, 426, 477, 499. 
Peacock, Ex parte, 235. 
v. Oaks. 305, 325. 
Pearce v. State, 392. 
Pearson v. International Distillery, 37, 
86, 222. 366. 
v. State, 434. 
Peer's Case, 465. 
Pegram v. Stortz, 309, 310, 314, 319, 323, 
325. 
Peisch v. Linder. 85, 346, 888. 
Pekin v. Smelzel, 17, 220, 223, 521. 
Pellecat v. Angell, 269. 
Pelton v. Drummond, 158. 
Pendergast v. Peru, 508. 
Pennybaker v. State, 375. 
People v. Ackerman, 373. 415, 431. 
v. Adams. 464. 477, 517. 
v. Andrews, 142, 172, 528. 
v. Arensberg, 26. 
v. Aro, 459. CASES CITED. 
XLI 
Pleuler v. State, 108, 117, 127, 129, 179. 
189. 
Plummer v. Commonwealth, 193. 
v. Erskine. 252. 
Plunkett v. State, 17, 467, 473, 521. 
Poffinbarger v. Smith, 333. 
Polk Co. v. Hierb, 59. 
Polk Co. Com'rs v. Johnson, 156, 162, 
168. 
Pollard, In re, 64, 170, 174. 
Pond v. State, 507. 
Pope v. People, 442. 
v. State, 144. 
Portland v. Rolfe, 539. 
v. Schmidt, 227, 230. 
Portsmouth Brewing Co. v. Smith, 271. 
Portwood v. Baskett, 55, 107, 185. 
Post v. Township of Sparta, 199. 
Potter v. Deyo, 507. 
v. Homer, 199. 
Pounders v. State, 415, 418, 426, 477,499, 
531. 
Powell v. Commonwealth, 26. 
v. Pennsylvania, 26. 
v. State, 44, 50, 79, 84. 101, 107, 127, 
149, 189, 190, 222, 223, 392, 467. 
Powers v. Commonwealth, 39, 407, 450. 
v. Mayor of Decatur, 184. 
Prather v. People, 119, 409. 
v. State, 8, 106, 117, 480. 
Pray v. Burbank, 249. 
Pressler v. State, 416, 426, 477, 499. 
Preston v. Drew, 38, 245. 
Prestwood v. Borland, 97. 
v. State, 105. 
Proctor v. People, 498. 
Prohibitory Amendment Cases, 37, 50, 
83, 84. 90, 101, 124, 127, 149, 189, 190, 
222. -23. 
Pros; ►'Ct Brewing Co., In re, 170, 172. 
Proviaence v. Bligh. 198, 296. 
Provo City v. Shurtliff, 213. 227, 234. 
Prussia v. Guenther, 2. 
Pumpelly v. Green Bay Co., 83. 
Purdy v. Sinton, 47, 115. 
Putney v. O'Brien, 300. 
People v. Parks, 369, 415. 
v. Quant, 37, 68, 81, 222. 
v. Quinn, 482. 
v. Richmond, 444. 
v. Riley, 415. 
v. Robbins, 445. 
v. Roby, 369, 415, 417, 418, 426, 477, 
499. 
v. Rouse, 548. 
v. Safford, 206. 
v. Schewe, 17, 521. 
v. Schottey, 535. 
v. Sinell, 142, 528. 
v. Soule, 142, 372, 415, 528. 
v. Sullivan, 445. 
v. Sweetser, 456, 464, 467, 477, 517, 
550. 
v. Tovnbee, 57. 
v. Utter, 371, 415. 
v. Walbaum, 550. 
v. Waldvogel, 393. 
v. Webster, 12, 469, 521. 
v. Welch, 417, 426, 477, 499. 
v. Wheelock, 17, 521. 
v. Woodman, 192, 196. 
v. Worsley, 176. 
v. Wright, 194. 
v. Zeiger, 17, 521. 
Perdue v. Ellis, 81, 231. 
Perkins v. Gibbs, 362. 
v. Henderson, 160. 
v. Ledbetter, 161, 170. 
v. State, 404, 510. 
Perry v. Edwards, 416, 426, 477, 499. 
v. Salt Lake City, 170. 
Persons, Ex parte, 170. 
Pervear v. Commonwealth, 113, 125. 
Peters v. Goulden, 265. 
Peterson v. Knoble, 306, 309, 323. 
Petition of Conway, In re, 170. 
Pettibone v. State, 484. 
Peyton v. Hot Spring Co., 188. 
Pfefferle v. State, 382. 
Philadelphia v. Scott, 32. 83. 
Phillips v. State, 98, 99, 459. 
v. Tecumseh, 226. 
Pickens v. State, 133. 
Pickering v. Railroad Co., 251. 
Picket v. State, 475. 
Piedmont Club v. Commonwealth, 142, 
528. 
Pierce v. Commonwealth, 170. 
v. Hillsborough Co., 552. 
v. New Hampshire, 69, 72, 86. 
v. State, 26, 46, 115, 510. 
Piers v. State, 532. 
Pierson v. State. 113, 125. 
Pietz v. State, 141. 
Pilgreen v. State. 434. 
Pindar v. Barlow, 259. 
Piqua v. Zimmerlin, 235. 
Pittsburgh, etc., R. Co. v. S. W. Penn. 
R. Co.. 26. 
Plainfield v. Batchelder. 542. 
Platteville v. McKernan, 224. 
Q. 
Quain v. Russell, 304. 
Qualter v. State, 430, 540. 
Quinn v. State, 472. 
Quintard v. Corcoran, 393. 
R. 
Rabe v. State, 10, 405, 456. 
Radford v. Thornell, 342. 388. 
Rafferty v. Buckman, 310, 317, 332. 
Ragan v. State, 463. 
Rahrer, In re, 77, 78. 
Railroad Co. v. Husen, 72, 83, 86. 
Railway Co. v. Alabama, 72, 86. 
v. Illinois, 72, 86. XLII 
CASES CITED. 
Raisler v. State, 439. 
Ralston v. Lothain, 60. 
Ramagnano v. Crook, 64, 172. 
Ramsey v. State, 410. 
Rana v. State. 372, 415, 510. 
Rancour, In re, 346, 388. 
Rand v. Commonwealth, 58. 
Randall v. State, 420. 
Rantz v. Barnes, 299, 315. 
Rau v. People, 16, 17. 521. 
Rauch v. Commonwealth. 102, 104, 534. 
Raudenbusch, In re, 170, 171. 
Rawlins v. Vidvard, 325. 
Rawson v. State, 459. 
Reagan v. Wooten, 314. 
Reams v. State, 472. 
Redmond v. State, 418, 426, 477, 499. 
Redpath v. Nottingham, 198, 296. 
Reed v. Adams, 363. 
Reese v. Atlanta, 120, 409. 
Reget v. Bell, 317. 
Reich v. State. 417, 426, 477, 499. 
Reid v. Terwilliger, 301, 325. 
Reithmiller v. People. 50, 101, 110, 124. 
128, 149, 189, 222, 223. 393, 431. 
Reugler v. Lilly, 299, 315. 
Reynolds, Ex parte, 227. 
v. Geary, 28, 272. 
v. State, 407. 
Rice v. Foster, 45, 92. 222. 
v. People, 464, 477, 517. 
v. Schlopp, 345, 888. 
Rich v. Flanders. 60. 
Richards v. Moore, 328. 332. 
v. Stogsdell, 184. 
v. Woodward, 68. 
Richardson v. Commonwealth, 414. 
Richland Co. v. Richland Center, 46, 
115. 
Richmond v. Shickler, 297, 299, 315. 
Rickart v. People, 142, 528. 
Ridling v. State, 531. 
Riley v. State, 370, 404, 415, 464, 477, 
517. 
Rindskoff v. Curran, 269. 
Rineman v. State, 417, 426, 477, 499. 
Ritcher v. State, 420. 
Ritchie v. Smith, 274. 
Robbins v. Taxing Dist., 72, 86. 
Roberge v. Burnham. 337. 
Roberts v. Mason, 325. 
v. O'Connor, 372, 415. 
v. State, 121, 409, 482. 
v. Taylor, 319. 
Roberson v. City of Lambertville, 437, 
446, 452, 464, 477, 517. 
Robertson v. State, 101, 104. 
Robinius v. State, 417, 426, 477, 499, 531. 
Robinson v. Barrows, 245. 
v. Commonwealth. 544. 
v. State, 377, 479, 515, 548. 
Robison v. Haug, 50, 115, 153, 487. 
Rockford R. Co. v. Hillmer, 26. 
Rock Island Nat. Bank v. Nelson, 260. 
Rodden v. License Com'rs, 192, 195. 
Roethke v. Philip Best Brewing Co., 
266. 
Rogers v. Alexander, 539. 
v. Hahn, 164. 
Rohrbacher v. Jackson, 46, 47, 115. 
Roose v. Perkins, 283, 293, 299, 310, 315, 
316, 325, 334. 
Rosecrants v. Shoemaker, 293, 317. 
Rosenham v. Commonwealth, 206. 
Ross v. People, 420. 
v. State, 417, 426, 477, 499. 
Ross' Case, 58. 
Roth v. Eppy, 303, 321, 324, 327. 
Rouse v. Catskill & N. Y. Steam-Boat 
Co., 301. 
v. Melsheimer, 308, 324, 325. 
Rowland v. State, 50, 84, 101, 127, 149, 
189, 190, 222, 223. 
Roy v. State, 479, 515. 
Ruble v. State, 555. 
Ruge v. State, 431. 
Runyon v. State, 132. 
Russell v. Sloan, 8. 
v. State, 157. 
Ruth, In re, 49, 115. 
Ryall v. State, 10. 
Ryan v. State, 517. 
s. 
Sackett v. Ruder, 314. 324. 
Saco v. Wentworth, 62, 545. 
v. Woodsum, 62, 545. 
St. Goddard v. Burnham, 304. 
St. Louis v. Gerardi, 150. 
v. Smith, 229. 
St. Paul v. Troyer. 217. 
Salina v. Seitz, 206. 
Salt Lake City v. Hollister, 113. 
v. Wagner, 220. 
Sanders v. Elberton, 150. 
v. State, 352, 355, 500. 
v. Town Com'rs, 220. 
Sanderson v. Goodrich, 130, 274. 
Sansom v. Greenough. 313. 
Santo v. State, 28, 37, 45, 52, 60, 81, 92, 
222, 351. 
Sappington v. Carter, 255. 
Sarris v. Commonwealth. 49, 115, 413. 
Savage v. Commonwealth. 37, 45. 83, 92, 
222, 459, 461, 467, 490, 516, 521. 
v. Mallory, 272. 
Savier v. Chipman, 19. 
Scales v. State, 437. 
Scanlan v. Childs, 399. 
Schafer v. Boyce. 281. 
v. Smith, 325. 
v. State, 304. 
Schaffer v. State, 477. 
Schaffner v. State. 403. 
Schandler Bottling Co. v. Welch, 73, 86. 
Schilling v. State, 529. 
Schimmelfenig v. Donovan, 325. 
Schlaudecker v. Marshall, 171, 172. 
Schlesinger v. Stratton, 267. XLIII 
CASES CITED. 
Schlicht v. State, 12, 428, 469, 474, 521. 
Schlosser v. State, 17, 521. 
Schmidt v. Cobb, 54, 339, 388. 
v. Mitchell, 311. 
v. State, 507. 
Schmitker, Ex parte, 124, 127; 
Schneider, Ex parte, 22, 229. 
v. Hosier, 279, 283, 308, 324, 325. 
Schober v. Rosenfield, 265. 
Schrader, Ex parte, 26. 
Schroder v. City Council, 223. 
v. Crawford, 310, 311. 
Schulher v. State. 201, 423. 
Schulherr v. Bordeaux, 45. 46, 92, 115, 
222. 
Schultz v. Cambridge, 153. 
v. State, 342, 349, 388. 
Schumm v. Gardener, 123. 
Schwab v. People, 475. 
Schwarm v. Osborn, 319. 
Schweitzer v. Liberty, 229. 
Schweyer v. Oberkoetter, 386, 410. 
Schwuchow v. Chicago, 34, 50, 101. 
124, 128, 148, 149. 189, 222, 223, 233. 
235. 
Scott v. Chope. 294, 311, 327. 
v. State, 519. 
Scovern v. State, 540. 
Scoville v. Calhoun, 97. 
Sears v. Warren Co., 68. 
Second Nat. Bk. v. Curren, 269. 
Secor v. Taylor, 293. 
Segur v. State, 474. 
Seibert v. State, 374. 
Seifried v. Commonwealth, 450. 
Seim v. State, 142, 528. 
Sellars v. Foster, 311, 334. 
Semple v. Flynn, 130. 
Senior v. Pierce, 362. 
v. Ratterman, 55, 107. 
Severance v. Kelly, 185. 
Sexson v. Kelley, 198, 296. 
Sharp v. State, 507. 
Sharpley v. Brown, 308, 324. 
Shaw v. State, 17. 134, 521. 
Shear v. Bolinger, 83. 
v. Brinkman, 344, 388. 
v. Green, 342, 388. 511. 
Shearer v. State, 507. 
Shepler v. State, 479, 515, 536, 555. 
Shields v. State, 392. 
Shilling v. State, 485. 
Shugart v. Egan, 311. 
Sibila v. Bahney, 56, 278, 305. 
Siceluff v. State, 420. 
Sickinger v. State, 346, 388. 
Siegel v. People, 406, 415, 421, 504. 
Sifred v. Commonwealth, 428. 
Sights v. Yarnalls, 127, 189. 
Sills v. State, 520. 
Siloam Springs v. Thompson, 97. 
Simons v. State, 415. 
Simpson v. State, 467. 
Sinking Fund Cases, 83. 
Sires v. State, 449. 
Skinner v. State. 389, 486. 
Slaughter-House Cases, 26, 82. 
Slymer v. State, 45, 92, 222, 490. 
smith v. Adrian. 507. 
v. Alabama, 72, 86. 
v. Godfrey, 249. 
v. Grable, 264. 
v. Hickman, 263. 
v. Joyce, 250. 
v. Kibbee, 241. 
v. Knoxville, 236, 432. 
v. Leddy, 262. 
v. Reynolds, 298. 
v. State, 74, 94, 434, 441,472, 480. 
Snider v. Koehler, 268. 
v. State, 11, 370, 415. 
Snyder v. State. 382, 474. 
Sohn v. State, 516. 
Solomon v. Dreschler, 249, 252. 
Sommer v. Cate, 242. 
South v. Commonwealth, 450. 
Sowle v. State, 498. 
Spake v. People, 146, 183. 
Sparrow, In re, 170, 172. 
Spears v. State, 548. 
Spickler, In re, 77, 78. 
Sprayberry v. Atlanta, 50, 101, 124, 127, 
128, 149, 189, 193, 222, 223, 233. 
Squires v. Young. 327. 
Staley v. Columbus, 184. 
Stallings v. State, 533. 
Stallworth v. State, 456. 
Standford v. State, 386, 410. 
Stanley v. Monnet, 172. 
v. State, 532, 533. 
Stanton v. Simpson, 278, 332. 
State v. Abbey, 444. 
v. Abbott, 446. 
v. Adams, 148, 343, 388, 419, 484,486, 
521. 
v. Adamson, 64. 
v. Addington, 26. 
v. Adler, 185. 
v. Ah Sam, 514. 
v. Ainsworth, 555. 
v. Allen, 464, 477, 517. 
v. Allmond, 38. 68. 
v. Ambs, 393, 428. 
v. Amery, 68. 
v. Amor, 415. 
v. Anderson, 216, 513. 
v. Andrews, 129, 149, 189, 226, 453, 
519, 555. 
v. Apperger, 503. 
v. Arbogast, 472. 
v. Arlen, 365, 535. 
v. Ascher, 273, 403. 
v. Atkinson, 215, 442. 
v. Atlantic City, 160, 174. 
v. Auberry, 437. 
v. Aulman, 208. 
v. Bach, 121, 409, 472, 507, 535. 
v. Bacon, 543. 
v. Baden, 381, 428, 492. 
v. Bailey, 464, 477, 517. XLIV 
CASES CITED. 
State v. Baker, 50, 98. 101, 124, 127, 128, 
149, 182, 189, 222, 223, 374, 548. 
v. Ball, 440, 441. 
v. Ballingall, 382. 
v. Barker. 449. 
v. Barr, 389. 
v. Barrels of Liquor, 352. 
v. Barron. 16, 401. 500. 521. 
v. Bartlett, 354, 357, 366. 
v. Barton, 173. 
v. Baskins, 495. 
v. Bassennan, 455. 
v. Batchellor, 345, 388. 
v. Bates, 382. 
v. Baughman, 87. 113, 125, 483, 511. 
v. Bayonne, 155. 
v. Bays, 192. 
v. Becker. 464, 477, 483, 486, 511, 517. 
v. Bell, 414. 
v. Beloit, 510. 
v. Benadone, 215. 
v. Beneke, 446. 
v. Bennet, 12, 469, 521. 
v. Benz, 140. 
v. Berlin. 40. 
v. Best, 421. 
v. Beswick. 17, 60, 61, 521. 
v. Beverly, 234. 
v. Biddle, 16, 18. 521. 
v. Bielby, 464, 477, 517. 
v. Bissell, 206. 
v. Blackwell, 68. 
v. Blair, 210, 354, 498. 
v. Blaisdell, 447, 467. 
v. Blanut, 555. 
v. Board of Com'rs, 170, 173. 
v. Bogan, 453. 
v. Boncher, 468. 
v. Bonnell, 172. 
v. Bonner, 381. 492. 
v. Bonney, 510. 
v. Bonsfield, 173. 
v. Bott, 41, 50. 
v. Bowman, 70. 
v. Brackett, 139, 140. 
v. Bradley, 37, 81, 222. 
v. Brady, 119, 224, 409, 440, 484, 486. 
v. Brandon, 144. 
v. Brennan, 36, 52, 53, 62, 351, 358, 
360, 364, 545. 
v. Briggs, 406, 415, 504. 
v. Brindle, 17. 521. 
v. Brittain, 7, 220. 
v. Brooks, 464, 467, 477, 517. 
v. Brosius, 519. 
v. Brown, 47, 115, 120, 209, 233, 371, 
409, 412, 415, 441, 464, 469, 477, 
517, 555. 
v. Bruce, 459. 
v. Bruder, 418, 419, 426, 477, 499. 
v. Bryant, 372, 415. 
v. Buck, 408, 486. 
v. Buckley, 389. 
v. Buckner, 449, 457. 
v. Buford, 444. 
State v. Bugbee, 372, 410, 415. 
v. Burchinal, 390. 
v. Burgess, 404, 477, 517. 
v. Burke, 354, 357, 368, 415. 
v. Burnett, 428. 
v. Burns, 440, 449. 
v. Burroughs, 495. 
v. Busby, 154. 
v. Butcher. 453. 
v. Cady, 393. 
v. Cahen, 123. 
v. Cain, 418, 426. 477. 478, 499. 
v. Camden, 218, 507. 
v. Campbell, 394, 483. 
v. Carl, 434. 
v. Carney, 87, 113. 
v. Carpenter, 448. 
v. Carrick, 73, 86. 
v. Carter. 104, 465. 
v. Cass Co. Com'rs, 170, 172. 
v. Cassety, 410. 
v. Caswell, 378. 
v. Cathey, 476. 
v. Chamberlin, 212. 
v. Chambers, 490. 
v. Chambless, 472. 
v. Chamblyss, 19. 
v. Chandler, 386, 410. 
v. Chapman, 74, 75, 86, 388. 
v. Chase. 230. 
v. Chastain, 372, 415, 418, 426, 477, 
499. 
v. Christman, 430. 
v. Churchill, 481. 
v. Circuit Court, 45, 64, 92, 94 96, 
180, 222. 
v. City of Beloit, 194. 
v. City of South Omaha, 158. 
v. City of Spokane Falls, 116. 
v. City of Tomah, 194. 
v. City of Topeka, 222. 
v. City of Trenton, 218. 
v. Clark. 3, 5, 90, 127, 234, 343, 388, 
449. 466. 
v. Clarke. 50, 84, 124, 127, 189, 190. 
v. Clayton, 470. 
v. Clevenger, 206, 211. 
v. Clottu, 419. 
v. Cloud, 19. 
v. Cloughly, 210, 215, 511, 521. 
v. Cobaugh, 353. 
v. Coenan, 419. 
v. Cofield, 118. 
v. Cofren, 460, 512. 
v. Colby. 510. 
v. Collins. 448. 
v. Columbia, 154. 
v. Colwell. 439. 
v. Combs, 548. 
v. Comings, 434. 
v. Common Council, 194. 
v. Common Pleas of Morris Co., 45, 
92, 222. 
v. Comstock, 438, 545. 
v. Conlin, 62, 545. CASES CITED. 
XLV 
State v. Connell, 519. 
v. Connelly, 387. 
v. Cooke, 45, 92, 101, 222. 
v. Coombs, 555. 
v. Coonan, 73, 86. 
v. Cooper, 103,105, 305, 314, 405, 415, 
456, 519. 
v. Copp, 213. 
v. Corll, 473. 
v. Cornwell, 170. 
v. Cosgrove, 546. 
v. Cottle, 441. 
v. Cottrill, 461. 
v. Coulter, 8, 505, 518. 
v County Com'rs, 130, 161. 
v. County Court, 161. 
v. Courtney, 208. 
v. Cox, 206. 437, 486. 
v. Crabtree, 428, 486. 
v. Crawford, 54. 
v. Creeden, 71, 86. 
v. Cron. 119, 409. 
v. Crooker, 438. 
v. Croteau, 505. 
v. Crowell, 447, 507. 
v. Crowley, 489. 
v. Cummings. 140. 
v. Cummins, 210, 212. 
v. Cunningham, 60. 
v. Curley, 444, 513. 
v. Currier, 339, 388. 
v. Cutting, 404, 507. 
v. Dalton, 206. 
v. Danforth, 407. 
v. Davis, 342, 385, 388, 492. 
v. Day, 60, 385. 
v. Dayton, 451. 
v. Dean, 486. 
v. Deevers, 372, 415. 
v. Delano, 113, 125. 
v. Dengolensky, 12, 469. 521. 
v. Denoon, 370, 415, 426, 478, 499. 
v. Deschamp, 44, 79, 107. 
v. Deustiug, 406, 415, 504. 
v. Devers, 448. 
v. Devine, 355, 456. 
v. Dodge, 486. 
v. Dolan, 425, 478, 533. 
v. Donehey, 81. 
v. Donovan, 492. 
v. Dorr, 90, 127, 190, 467, 486, 491. 
v. Douglas, 208. 
v. Douglass, 342, 347, 348, 388. 
v. Dow, 368, 415, 544. 
v. Downer, 119, 374, 409. 
v. Downs, 474. 
v. Doyle, 153, 464, 477, 484, 517. 
v. Drake, 479, 515. 
v. Drischel, 428. 
v. Duggan, 208, 446. 
v. Dunlap, 457. 
v. Dunphy, 359, 363. 
v. Dupuis, 415. 
v, Durkem, 370, 415. 
v. Dwyer, 233. 
State v. Easton Social Club, 142, 528. 
v. Eaves, 435. 
v. Edwards, 378, 507. 
v. Elder, 126. 
v. Elliott, 206, 210, 459. 505, 513. 
v. Emerick, 477. 
v Emery, 100, 103, 461, 507, 511. 
v. Ensley, 544. 
v. Eskridge, 479, 515. 
v. Essex Club, 142, 528. 
v. Estabrook, 124, 127. 
v. Estlinbaum, 546. 
v. Evans, 508. 
v. Faber, 548. 
v. Fagin, 501. 
v. Fairfield, 419. 
v. Fairgrieve, 439. 
v. Fanning, 449, 464, 472, 474, 477. 
517. 
v. Fant, 453. 455. 
v. Farmer. 453, 544. 
v. Farr, 426, 478, 499. 
v. Faucett, 464, 477, 517. 
v. Fay, 227. 
v. Fearson, 428. 
v. Feeny, 517. 
v. Ferguson. 207, 238, 241. 
v. Ferrell, 405, 456, 464, 477, 517. 
v. Fertig. 526. 548. 
v. Fierline, 505. 
v. Finan, 372. 415, 455, 456, 517. 
v. Findley, 459. 
v. Finn, 511. 
v. Fisher, 197, 296, 413. 
v. Fitzpatrick. 31, 37, 52, 62, 86, 222, 
351, 358, 360, 545. 
v. Fleckenstein, 229. 
v. Fleming. 215. 
v. Fletcher, 459. 
v. Flusche, 210. 
v. Foster, 507. 
v. Fox, 467. 
v. Frame, 108, 117, 179. 
v. Francis. 225. 
v. Fraser, 77, 78, 340, 388. 
v. Fredericks. 150. 
v. Freeman, 406, 415, 486, 504, 545, 
v. Fulker, 70. 
v. Fuller, 68, 447. 
v. Funk, 113, 125, 409. 
v. Gaffeny, 544. 
v. Garon, 227. 
v. Gavigan. 438. 
v. Gerhardt, 134. 
v. Giersch, 3. 5. 
v. Gilman, 38. 
v. Gilmore, 418. 426, 477, 493. 
v. Glasgow, 410. 
v. Gorham, 509. 
v. Gorman, 525. 
v. Goss, 394. 403. 
v. Goyette, 17. 
v. Graeter, 467. 
v. Graham, 555. 
v. Grames, 352, 385. XLVI 
CASES CITED. 
State v. Gravelin, 43, 342, 388. 
v. Gray, 8. 115, 206. 
v. Greenhagen, 472. 
v. Greenleaf, 404, 
v. Guettler, 544. 
v. Guinness, 43, 387. 
v. Guisenhause, 511. 
v. Gumber, 484. 
v. Gummer, 464, 477, 517. 
v. Gurlagh, 516. 
v. Gurney, 33, 366, 447. 
v. Haden, 449. 
v. Hafsoos, 402, 458. 
v. Haines, 375. 
v. Haley, 514. 
v. Hall, 206, 359, 361, 443, 486, 501. 
v. Hamilton, 415. 
v. Hampton, 435. 
v. Hanlan, 162, 106, 168. 
v. Hannum, 467. 
v. Harp, 459. 
v. Harper, 124, 127, 217, 227. 
v. Harris. 208, 244, 387, 527. 
v. Hart, 411. 
v. Hartfiel, 418, 426, 477, 499. 
v. Hartwick, 525. 
v. Hass. 486. 
v. Hassett, 503. 
v. Hayes. 369, 415. 
v. Haymond, 8. 
v. Haynes, 551. 
v. Hays. 489, 517. 
v. Hazell, 113, 125, 433. 
v. Head, 387. 
v. Heck, 426, 478, 499. 
v. Heckler, 548. 
v. Heege, 156, 161. 
v. Heitsch, 453. 
v. Heldt, 464, 477, 517. 
v. Hendrix, 206, 211. 
v. Hesner, 520. 
v. Hickerson, 464, 477, 517. 
v. Hicks, 548. 
v. Higgins, 60, 455. 
v. Hill. 138, 143, 168. 
v. Hines, 474. 
v. Hipp, 108, 117, 179. 
v. Hirsch, 430. 
v. Hoagland, 208, 210. 
v. Hoard, 484. 
v. Hogan, 433. 
v. Hollin, 538. 
v. Hollingsworth. 104, 535. 
v. Holmes, 129, 189. 
v. Holt Co. Court, 170. 
v. Hopkins, 437. 
v. Horacek, 142, 528. 
v. Horan, 448. 
v. Hornbeak, 449. 
v. Horneman, 555. 
v. Horton, 50, 84, 127, 189, 190, 191. 
v. Houts, 17, 434, 464, 477, 49J, 517, 
521. 
v. Howley, 354, 361. 
v. Hoxsie, 388, 493, 525. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
State v. Hubbard, 423. 
v. Hudson, 55, 107, 172. 
v. Huff, 210, 340, 388, 548. 
v. Hughes, 122, 150, 339, 340, 388, 
434. 
v. Humber, 201. 
v. Hunt, 372, 415. 
v. Huntley, 119, 409. 
v. Hurley, 60. 
v. Hutchins, 407. 
v. Hutchison, 18, 521. 
v. Hutzell, 440. 
v. Hyde, 477. 
v. Illsley, 526. 
v. Inness, 555. 
v. Intoxicating Liquors, [21 Atl. 
Rep. 840.] 73. 86. 
v. Intoxicating Liquors, [40 Iowa 
95,] 352. 
v. Intoxicating Liquors. [64 Iowa, 
300, 20 N. W. Rep. 445J 354. 
v. Intoxicating Liquors, [<6 Iowa, 
243,41 N. W. Rep. 6.] 2. 
v. Intoxicating Liquors, [50 Me. 
506,] 353. 
v. Intoxicating Liquors, [63 Me. 
121,] 353. 
v. Intoxicating Liquors, [68 Me. 
187,] 353. 
v. Intoxicating Liquors, [69 Me. 
524,] 367. 
v. Intoxicating Liquors, [73 Me. 
278.] 367. 
v. Intoxicating Liquors, [80 Me. 
91, 13 Atl. Rep. 403,] 365. 
v. Intoxicating Liquors, [82 Me. 
558,] 68. 
v. Intoxicating Liquors, [38 Vt. 
387,] 354. 
v. Intoxicating Liquors, [44 Vt. 
208,] 509. 
v. Intoxicating Liquors, [58 Vt. 
594, 4 Atl. Rep. 229,] 354, 366. 
v. Irvine, 480. 
v. Isabel, 50, 115, 149, 487. 
v. Jacks, 474. 
v. Jaeger, 141, 411. 
v. Jamison, 119. 
v. Jangraw. 555. 
v. Jaques, 445, 464, 477, 517. 
v. Jarrett, 498. 
v. Jefferson Co. Com'rs, 156, 161. 
v. Jenkins, 17, 469, 521. 
v. Johnson, 139. 385, 388, 449. 
v. Jones, 407, 469. 
v. Jordan, 54, 339, 388. 
v. Joyner, 40,113, 125 
v. Justices of Inferior Court, 170. 
v. Kalb. 417, 426, 477, 499. 
v. Kaier, 387. 
v. Kane, 61, 90, 127, 190. 
v. Kantlcr, 228. 
v. Kartz, 60. 
v. Keaough, 180. 
v. Keen, 205, 444. CASES CITED. 
XLVII 
State v. Keeran, 37, 85, 222, 343, 388. 
v. Keith, 368, 372, 415. 
v. Kelleher, 525. 
v. Kelley, 423. 
v. Kennedy, 167, 459. 
v. Kibling, 74, 86. 
v. Kidd, 430. 
v. King, 217. 
v. Kingston, 527. 
v. Kinkead, 418. 426, 477, 499. 
v. Kirkham, 414. 
v. Kite, 176. 
v. Klein, 442. 
v. Knott, 514. 
v. Knowles. 210. 
v. Knowlton, 354, 357. 
v. Kobe, 538. 
v. Kock, 479, 515. 
v. Koehler. 538. 
v. Koso, 162, 168, 169. 
v. Kreig, 486. 
.v. Kriechbaum, 372, 413, 415, 503. 
535. 
v. Kuhn, 464, 477, 517. 
v. Kuhuke, 507. 
v. Ladd, 464, 477, 517. 
v. Laffer, 8. 
v. Lamos, 194. 
v. Lane, 444. 
v. Lang, 361. 
v. Langdon, 225. 
v. Langton, 541. 
v. Larrimore, 215. 
v. Lashus, 488, 491, 501. 
v. Lavake, 459, 462, 472. 
v. Lawrence. 419. 
v. Lawson, 505. 
v. Leach. 356. 
v. Learned, 61, 366. 438, 483. 
v. Leavenworth, 222. 
v. Leavitt. 450. 
v. Leis. 549. 
v. Lemp, 17, 521. 
v. Lillard, 9. 
v. Lincoln, 555. 
v. Lipscomb, 507. 
v. Liquor, 354, 357, 365, 366. 
v. Liquors and Vessels, 352, 509. 
v. Lisles, 453. 
v. Little, 548. 
v. Lockstand, 474. 
v. Lockyear, 142, 528. 
v. Long, 435. 
v. Longley, 354. 
v. Lovell, 399. 
v. Ludington, 39, 278. 
v. Lydick, 130. 
v. McAdoo, 446. 
v. McBride, 118. 
v. McBryer, 415, 416. 426, 477, 499. 
v. McCafferty. 521. 
v. McCann, 352, 361. 
v. McCleary, 113, 125. 
v. McDaniel. 374. 
v. McEntee, 212. 
State v. McGinnis, 370, 415. 
v. McGlynn, 444, 447, 507, 525. 
v. McGough, 484. 
v. McGrath, 369, 415. 
v. McGregor, 372, 415. 
v. McGuire, 372, 415. 
v. McKenna, 61, 366, 466. 
v. McLafferty, 18, 521. 
v. McLaughlin, 442. 
v. McMahon, 420. 
v. McMaster, 142, 528. 
v. McMickle, 459. 
v. McMinn, 405, 456. 
v. McNamara, 18, 521. 
v. McNeary, 120, 409, 507. 
v. McNeeley, 130, 133. 
v. Maher, 555. 
v. Mahoney, 371, 415. 
v. Malling, 513. 
v. Maloney, 347, 388. 
v. Mancke, 124, 127. 
v. Mansker, 21. 
v. Marsh, 44, 79, 107. 
v. Marshall, 26. 
v. Martin, 11, 241, 453. 
v. Martland, 201. 
v. Matheison, 502, 521. 
v. Matthews, 167. 
v. May, 206, 211, 243. 
v. Mayor of Lincoln, 186, 188, 
v. Mead's Liquors, 366. 
v. Mellor, 509. 
v. Melton, 489. 
v. Mercer, 142, 528. 
v. Meyers, 161. 
v. Midgett, 435. 
v. Miles, 474. 
v. Miller, 52, 351, 354, 364, 365, 381, 
444, 451, 492, 505, 511. 
v. Millikan, 206, 211. 
v. Minnehan, 354, 357. 
v. Mitchell, 206. 
v. Mohr, 483. 
v. Mondy, 472. 
v. Moody, 150. 
v. Moore, 3, 5, 118, 137, 519. 
v. Mooty, 15. 
v. Moran, 439. 
v. Morgan, 389. 
v. Moriarty, 389. 
v. Morrisoq, 507. 
v. Mueller, 371, 415. 
v. Mugler, 37, 81, 222. 
v. Mullenhoff, 213, 389, 409. 
v. Mulliken, 390. 
v. Mullinix, 467. 
v. Muncey, 8. 
v. Munger, 13-15, 464, 477, 517, 521. 
v. Munson, 421. 
v. Muntz, 461, 462, 474. 
v. Munzenmaier, 525. 
v. Murch, 488. 
v. Murphy, 61, 158, 438, 454. 
v. Muse, 40, 464, 477, 517. 
v. Nash, 44, 79,107. XLVIII 
CASES CITED. 
State v. Nations. 441. 
v. Neagle, 501. 
v. Neal, 377. 
v. Neis, 142, 528. 
v. Nerbovig, 468. 
v. Newcomb, 123. 
v. Newton, 26, 70. 
v. Nickerson, 486. 
v. Nolan, 61, 226, 383, 441, 535. 
v. North, 30. 
v. Norton, 526. 
v. Nowlan, 365. 
v. Noyes, 25. 
v. Nulty, 507. 
v. Nutt, 481. 
v. Nye, 507. 
v. O'Connell, 501, 509. 
v. O'Conner, 385. 
v. Odam, 476. 
v. O'Donnell, 444. 
v. Oeder, 210. 
v. O'Keefe, 459. 
v. Oliver, 18, 521. 
v. One Bottle of Brandy, 352. 
v. O'Neil, 52, 351, 353. 
v. Orth, 140. 
v. Orton, 476. 
v. Owen, 472. 
v. Packer, 5, 467. 
v. Paddock, 410. 
v. Page, 5. 
v. Parker, 45, 92, 222. 
v. Parks, 413. 
v. Parnell, 464, 477, 517. 
v. Passaic, 507. 
v. Patterson. 411, 535. 
v. Paul, 28. 37, 38, 84, 85, 127, 190, 
222, 343, 388. 
v. Pearse, 172. 
v. Peck, 535. 
v. Pecker, 365. 
v. Peckham, 68. 
v. Pendergast, 464, 477, 517. 
v. Perkins, 413, 483. 
v. Peterson, 461, 479, 508. 515. 
v. Pfefferle, 520, 521, 536. 
v. Pfeifer, 229, 
v. Ptleagor, 73, 86. 
v. Piazza, 185. 
v. Pierce, 207, 388, 423, 486. 
v. Pike, 532. 
v. Pillsbury. 443. 
v. Pischel, 441, 464, 467, 474, 477, 517. 
v. Pittman, 441, 449. 
v. Pitzer, 449. 
v. Plainfield, 230, 464, 477, 517. 
v. Plastridge, 440. 
v. Pond, 4), 92, 222. 
v. Poteet, 403. 
v. Potter, 382. 
v. Powell, 480. 
v. Pratt, 392, 425, 533. 
v. Prettyman, 150. 
v. Price, 484. 
v. Priester, 221, 229, 503. 
State v. Propst, 124, 127. 
v. Putnam, 205. 
v. Quinn, 503. 
v. Rand, 381, 492. 
v. Ratner, 437. 
v. Rauscher, 40. 
v. Raymond, 525. 
v. Reed, 471. 
v. Reick, 512. 
v. Rei ley, 369, 415. 
v. Reingardt, 156, 159 160. 
v. Reno, 345, 388, 505, 514. 
v. Reyelts, 388, 537. 
v. Reynolds, 166, 467. 
v. Rhodes, 486. 
v. Roach, 18, 360, 521. 
v. Robbins, 451, 501. 
v. Roberts, 510. 
v. Robertson, 206. 
v. Robinson, 68, 352, 354. 857, 366, 
491, 511, 548. 
v. Rockwell, 535. • 
v. Roehm, 479, 515. 
v. Rogers, 464, 467, 474, 477, 517. 
v. Rolle. 109. 
v. Rouch, 55, 107, 233. 
v. Rowe, 543. 
v. Ruark, 96, 172. 
v. Ruby, 486. 
v. Rundlett, 536. 
v. Runyan. 453. 
v. Rush, 17, 521. 
v. Rust. 471. 
v. Ryan, 393, 453, 472, 486. 
v. Salts, 209. 
v. Sannerud, 508. 
v. Sartori, 525. 
v. Savage, 448. 
v. Scarlett, 446. 
v. Schaefer, 18, 521 
v. Schilling, 486, 538. 
v. Schmail, 464, 477, 507, 517. 
v. Schmidt, 508. 
v. Schmidtz, 195. 
v. Schmitz, 93. 
v. Schroder, 464, 477, 517. 
v. Schroeder, 40, 140, 141. 
v. Schultz, 521. 
v. Schweiter, 441, 464, 477, 503, 517. 
v. Scoggins, 377, 422. 
v. Searcy, 46, 115. 
v. Sevier, 400. 
v. Shackle, 457. 
v. Shafer, 555. 
v. Shanahan, 382. 
v. Shank, 208. 210, 525. 
v. Sharrer, 3, 5. 
v. Shaw, 120, 209, 409, 444, 449, 462, 
472, 507, 510. 
v. Shawbeck, 538. 
v. Shearer, 475. 
v. Sbenkle, 380. 
v. Sherman, 124, 127. 
v. Shoemaker. 477. 
v. Shortell, 369, 415. CASES CITED. 
XLIX 
State v. Sies, 123. 
v. Simmons, 378. 
v. Simons, 503, 507. 
v. Sinks, 108, 117, 179. 
v. Sinnot, 538. 
v. Sioux Falls Brewing Co., 341, 388. 
v. Skinner, 368, 415. 
v. Slack. 186. 
v. Slaughter, 415. 
v. Small, 401. 491, 513, 514. 
v. Smiley, 104. 
v. Smith, 93, 94, 104, 212, 362, 386, 
410, 437, 478, 505, 520, 543. 
v. Smouse, 440. 
v. Snow, 53, 351. 
v. Snyder, 59. 
v. Sommers, 449. 
v. Sonnerkalb, 555. 
v. Sorrell, 507. 
v. Spain, 464, 477, 517. 
v. Spaulding, 18, 389, 466, 501, 503, 
509, 521, 527, 529. 
v. Stafford, 340, 388. 
v. Staley, 464, 477, 517. 
v. Standish, 407. 
v. Stanton, 240. 
v. Staples, 356, 443. 
v. Starney, 464, 477, 480, 517. 
v. Starr, 6. 
v. Steedman, 464, 477, 517. 
v. Sterns, 378, 467. 
v. Stevens, 361, 366. 
v. Stewart, 5, 555. 
v. Stiefel, 141. 
v-Stilsing. 71, 86. 
v. Stinson, 481, 535. 
v. Stone, 484. 
v. Stovall, 40. 
v. Strauss, 236, 432 
v. Stuart, 492. 
v. Stucker, 44, 79, 107, 372, 415. 
v. Stuckey, 464, 477, 517. 
v. Stutz, 509. 
v. Sullivan, 372, 415. 
v. Sumter County, 147, 157, 159, 160. 
v. Sutton, 116, 449. 472. 
v. Swan, 90, 127, 190. 
v. Tarnier, 444. 
v. Tavlor, 408, 445, 555. 
v. Teahan, 381, 441, 467, 473, 492, 
509. 
v. Teissedre, 17, 521. 
v. Terry, 506. 
v. Tetrick, 206, 211. 
v. Thibedeaux, 185. 
v. Thomas, 60, 408. 
v. Thompson, 3, 5, 210, 212, 354, 357. 
418, 426, 444, 477, 499. 
v. Thornburg. 412. 
v. Thornton, 469. 
v. Tissing, 512. 
v. Tonks. 90, 127, 190. 
v. Tracey, 440. 
v. Tucker, 94, 120, 409. 
v. Tuller, 459. 
State v. Turner, 140. 
v. Uhrig, 338, 388. 
v. U. S. Express Co., 353. 
v. Verden, 527. 
v. Viers, 387, 389. 
v. Volkman, 107. 
v. Volmer, 6. 
v. Von Haltzschuherr, 209, 212. 
v. Wacker, 388. 
v. XVade 444. 
< Wadsworth, 13-16, 378, 403, 449, 
521. 
v. Waldron, 60. 
v. Walker, 150, 420, 464, 477, 517. 
v. Wall, 521. 
v. Wallace, 450. 
v. Walruff, 83. 
v. Wambold, 459, 500. 
v. Ward, 209, 426, 478, 499. 
v. Washington, 236, 432. 
v. Waynick, 388. 
v. Weaver, 480. 
v. Webber, 342, 388. 
v. Weber, 166. 
v. Webster, 449. 
v. Weckerling, 141. 
v. Weeks, 93, 94, 104, 172, 204. 
v. Weir, 45, 92, 222. 
v. Welch, 354, 355, 486. 
v. Wells, 206. 
v. Wentworth, 369, 371, 415, 455, 510. 
v. Whalen, 467. 
v. Wharton, 206. 
v. Wheeler, 37, 38, 53, 58, 222, 226, 
351, 555. 
v. Whipple, 513. 
v. Whiskv, etc., 358, 360. 
v. Whisner, 464, 467, 477, 517. 
v. White, 121, 391, 409, 503. 
v. Whitney, 455. 
v. Whitted, 441. 
v. Whitter, 507. 
v. Wiggin, 368, 403, 415, 509. 
v. Wilbor, 451. 
v. Wilcox, 45. 92, 122, 222. 
v. Wilkson, 472. 
v. Williams, 104, 385, 516, 552. 
v. Williamson, 12, 469, 475, 521. 
v. Wilson, 9, 60, 500, 527. 
v. Winters, 73, 86. 
v. Wishon, 449. 
v. Wissenhunst, 547. 
v. Witt, 11, 467. 
v. Witter, 223. 
v. Wittmar, 2. 
v. Wolff, 518. 
v. Wood, 441. 
v. Woods, 58. 
v. Woodward, 455, 507. 
v. Wool, 428. 
v. Wooley, 426, 437, 543. 
v. Woolsey, 475. 
v. Wray. 206. 
v. Wright, 547. 
v. Wyman, 472, 491. 
INTOX.LIQ.-d L 
CASES CITED. 
State v. Yager, 209. 
v. Yewell, 104. 
v. Young, 413. 
v. Zeitler, 459, 472. 
v. Zimmerman, 70. 555. 
State Freight Tax, 72, 86. 
Steel v. State, 455. 
Steele v. State, 45, 92, 93. 97, 222. 
v. Thompson, 315. 325. 
Stehle v. Commonwealth, 201. 
Stein v. State, 448. 
Steinkraus v. Hurlbert, 166, 167. 
Steinmetz v. Versailles, 229. 
Stephenson v. State, 531. 
Stevens v. Cheney, 285. 
Stevenson v. State, 406, 415, 504. 
Stewart v. Waterloo Turn Verein, 142, 
528. 
Stickrod v. Commonwealth, 37, 64, 81, 
222, 402. 
Stockwell v. Brant, 162, 168. 
v. State, 392, 505. 
Stolte v. State, 517. 
Stone v. Mississippi, 24, 26, 28, 33, 36, 83. 
v. State, 450, 505. 
Stout v. State, 17, 392, 430, 521. 
Strahn v. Hamilton, 130. 
Strauss v. Pontiac, 220, 234. 
Street v. Hall, 266. 
Streeter v. People, 46, 54,115, 339, 388. 
Streever v. Birch, 307. 
Streit v. Sanborn, 259. 
Struble v. Nodwift, 281, 319. 
Struckman v. State, 472. 
Stuart, In re, 230. 
Sublett, Ex parte, 95. 
Sullivan v. City of Oneida, 220 
v. McCammon, 187. 
v. Oneida, 365. 
v. Park, 244. 
Surratt v. State, 445. 
Swan v. State, 392. 
Swann, Ex parte, 45, 92, 104, 222, 548. 
Swarth v. People, 223. 
Sweet v. Wabash, 64, 227, 231. 
Swett v. Hooper, 260. 
Swigart v. State, 417, 426, 477, 499. 
Tegler v. Shipman, 268, 269. 
Temmick v. Owings, 65, 97. 
Templeton, In re. 130. 
Tennessee Club v. Dwyer, 142, 528. 
Tenney v. Lenz, 46, 115, 181. 
Territory v. Coleman, 427. 
v. Connell, 46, 109, 115. 
v. Guyot, 427. 
v. O'Connor, 35, 45, 87, 92, 104, 113, 
125, 222. 
v. Pratt. 104, 520. 
v. Webster, 226. 
Territt v. Bartlett, 267. 
Tetzner v. Naughton, 299, 315 
Thayer v. Partridge, 263. 
Thill v. Polman, 308, 324, 325. 
Thomas v. Dansby, 293, 312, 317, 323, 
327. 
v. Hinkley, 198, 296. 
v. State, 414, 507. 
Thomason v. State. 215. 
Thomasson v. State, 41, 46, 49, 50, 55, 
64, 107, 115, 428. 
Thompson v. Mt. Vernon, 223. 
v. State, 133, 369, 373, 415, 444. 
Thomson v. Norris, 187. 
Thon v. Commonwealth, 225. 
Thorn v. Atlanta, 155. 
Thornton v. Territory, 45, 92. 222. 
Thorpe v. Rutland & B. R. Co., 25. 
Thurston v. Adams, 57. 356. 
Tibbetts v. Burster, 345. 347, 388. 
Tiernan v. Rinker, 44, 79, 107. 
Tiffany v. Driggs, 513. 
Tilford v. State, 216, 428. 
Tillery v. State, 435, 442. 
Timm v. Harrison, 109. 
Timson v. Moulton. 274. 
Tinker v. State, 17, 78, 521. 
Tobert v. Clough, 265. 
Tolman v. Johnson, 265. 
Tomlinson Carriage Co. v. Kinsella, 252. 
Tonella v. State. 107. 
Toole v. State, 98. 
Toole's Appeal, 170, 173. 
Topper v. State, 421. 
Townley v. State, 446. 
Town of Cantril v. Sainer, 64. 
Town of Mt. Carmel v. Wabash Co.. 229. 
Town of Ottawa v. County of La Salle, 
224. 
Townsend v. State, 144. 
Tracy v. Perry, 378. 
Trageser v. Gray, 30, 48, 115. 138. 
Trainor v. Multnomah Co., 186, 188. 
Trammell v. Bradley, 40. 
Transportation Co. v. Parkersburg, 72, 
86. 
Treahey v. Holliday, 208. 
Tredway v. Riley, 271. 
Tripp v. Flanigan, 200. 
v. Hennessy, 414. 
v. Norton, 198, 296. 
Trost v. State. 50, 101, 124,128, 149, 189, 
222, 223, 449, 542. 
T. 
Tally v. Grider, 93. 
Tanner v. Alliance. 37, 83, 222. 
Tappenden v. Randall, 263. 
Tardiff v. State, 372, 415. 
Tate v. Donovan, 314. 
Tatum v. State, 100, 104, 425, 533. 
Taunton v. Taylor, 26. 
Taylor v. Carroll. 287, 314. 
v. Pickett, 268. 
v. State, 520. 
v. Vincent, 23, 414. 
v. Wright, 299, 315. 
Teague v. State, 537. 
Teasdale v. State, 370, 415. 
Tefft v. Commonwealth, 538. CASES CITED. 
LI 
Trustees of Clintonville v. Keeting, 226. 
Tuchman v. Welch, 73, 86. 
Tuck v. Town of Waldron, 227. 
Tulloss v. Sedan, 232. 
Tupelo v. Beard. 187. 
Turek v. Richmond, 256. 
Turner v. City of Forsyth, 224. 
v. Saxon, 45, 92, 222. 
Tuttle v. Holland, 269. 
V. 
Vallance v. Everts, 494. 
v. King, 104. 
Vanderlip v. Derby, 166. 
Vanderwood v. State, 475. 
Van Hook v. Selma, 231. 
Vannoy v. Patton, 249. 
v. State, 121, 122, 409, 548. 
Van Vliet, In re, 77, 78. 
Vaughn v. State, 483. 
Veon v. Creaton. 285. 
Ver Straeten v. Lewis. 344, 388. 
Village of Cohoes v. Moran, 225. 
Village of Grosse Point v. Wayne Co. 
Treas'r, 186. 
Village of Rome v. Knox, 120. 409. 
Village of St. James v. Hintgten, 198, 
296. 
Vinson v. Monticello. 234 
Virginia v. Smith. 513. 
Voetsch v. Phelps, 364. 
Volans v. Owen, 285, 308, 324. 
Volmer v. State, 484. 
u. 
Ulrich v. Commonwealth, 418, 426, 477, 
499. 
United States v. Allen, 23, 414. 
v. Angell, 15, 122, 136, 521. 
v. Anthony, 4. 
v. Bennett, 437. 
v. Bonham, 386, 410, 510. 
v. Britton, 444. 
v. Burch, 513. 
v. Burdick, 427. 
v. Calhoun. 206. 
v. Clare. 23, 414. 
v. Cline, 434. 
v. Commissioners of D. C., 170. 
v. Cook, 444, 446. 
v. Cruikshank, 437. 
v. Davis, 134. 
v. Distilled Spirits, 246. 
v. Durham, 434. 
v. Fiscus, 73, 86. 
v. Forty-Three Gallons of Whisky, 
126, 395. 
v. Glab, 134. 
v. Gordon, 464, 467, 477, 517. 
v. Harris, 552. 
v. Holliday, 42, 50, 395, 427. 
v. Howell, 408. 
v. Hull, 441. 
v. Jackson, 386, 410. 
v. Leathers, 395. 
v. Maxwell, 383. 
v. Mickle, 386, 410. 
v. Nelson, 35, 507. 
v. O'Neill, 112. 
v. Osborn, 427. 
v. Overton, 131, 139. 
v. Rennecke, 23, 414. 
v. Riley, 35. 
v. Ronan, 40, 46, 115. 
v. Shaw-Mux, 35. 395. 
v. Shriver, 434. 
v. Smith, 23, 414. 
v. Stafford, 10. 
v. Starnes, 23, 414. 
v. Stephens, 396. 
v. Stubblefield, 8. 
v. Sturgeon, 395. 
v. Twenty-Nine Gallons of Whisky, 
395. 
v. White, 8. 
v. Wittig, 142, 528. 
v. Wolters, 113. 
w. 
Wade v. State, 112. 
Wadleigh v. Gilman, 26. 
Wagner v. Breed, 266, 267. 
v. Town of Garrett, 124, 127, 221, 
229. 
Wakeman v. Chambers, 381, 492. 
Waldstien v. State. 419. 
Walker v. Lovell, 251. 
v. Prescott, 16, 521. 
v. Shook, 244. 
v. State, 416, 426, 477, 499. 
Wall, Ex parte, 45, 92, 222. 
v. State, 8. 
Wallace v. State, 420. 
Waller v. State, 17, 377, 477, 521. 
Walling v. Michigan, 29, 30, 36, 44, 72, 
79, 83, 86, 107. 
Walser v. Kerrigan, 319. 
Walter v. Commonwealth, 398. 
v. State, 466. 
Walters v. State, 442. 
Walton v. State, 424, 426, 478, 499. 
Ward v. Greeneville, 236, 432. 
v. Maryland, 30. 
v. People, 243. 
v. State, 415, 421, 469, 477. 
v. Thompson, 300, 308, 309, 817, 323- 
325 
Wardell v. McConnell, 293, 297, 299, 315. 
Warner v. Brooks, 524. 
Warren v. Englehart, 284. 
Warrick v. Rounds, 8, 308, 324. 
Washington v. Eames, 205. 
Wason v. Severance, 150. 
v. Underhill, 372, 415. 
Watson v. State, 17, 521. 
Watts v. Commonwealth, 50, 101, 124, 
127, 128, 149, 189, 190, 222, 223. LII 
CASES CITED. 
Waymell v. Reed. 270. 
Webb v. Baird, 23, 414. 
v. Nickerson, 395. 
Webber v. Donnelly, 266, 267, 269. 
v. Howe, 267. 
v. Virginia, 24, 30, 33, 72, 86. 
v. Williams, 134. 
Webster v. Commonwealth, 485. 
v. Munger, 270. 
Weed v. State, 477. 
Weidman v. People, 393. 
Weikman v. City Council, 547. 
Weil v. Calhoun. 37, 44, 45, 79, 83, 92, 
107, 222. 
v. Golden, 256. 
Weir v. Allen, 244. 
Weireter v. State, 519. 
Weis v. State, 17, 521. 
Weitz v. Ewen, 325. 
Welch v. Jugenheimer. 293, 304, 309, 
323 327 
v. McKane, 59, 201. 
Wells v. State, 106, 117. 
Welsh v. State, 17, 30, 48, 115, 120, 138, 
409, 521. 
Welton v. Missouri, 30, 36, 44, 68, 72, 79, 
86. 107. 
Werneke v. State, 478. 
Werner v. Edmiston, 56, 278, 299, 
315. 
v. State, 479, 515. 
West v. Columbus, 461. 
Western Union Tel. Co. v. Pendleton, 
27. 
Westinghausen v. People, 55, 107. 
Weston v. Carr, 363. 
Wetzler v. State. 369, 415. 
Whaley v. State, 392. 
Whalinv. Macomb, 553. 
Wharton v. King. 134. 
Wheeler v. State. 50, 84, 101,104,127, 149, 
189, 190, 222, 223. 
Wheelin, In re, 168. 
Whisenhunt v. State, 106, 116. 
White v. Franklin Bank, 263. 
v. State, 548. 
W'hitehurst v. State, 537. 
Whitlock v. Workman, 269. 
Whitney, In re, 432. 
v. Township Board, 40. 
Whitten v. Covington, 229. 
Whittington, Ex parte, 170. 
Whitton v. State, 377, 423. 
Wicker v. Siesel, 183. 
Widoe v. Webb, 258. 
Wiedemann v. People, 478. 
Wiggins v. Varner, 154. 
Wightman v. State, 225. 
Wildermuth v. Cole, 139. 
Wiles v. State. 16, 122, 521. 
Wiley v. Owens. 231, 232. 
Willard v. State, 472. 
Williams v. Citizens, 93. 
v. Feiniman, 268, 434. 
Williams v. State, 386, 406, 410, 415. 416, 
426, 466, 477. 499, 504, 507, 520. 
v. Troop, 131, 139. 
Williamson v. Berry, 403. 
Wills v. State, 467. 
Wilson, In re, 228, 234. 
v. Booth. 306, 332. 
v. Commonwealth, 464, 477, 517. 
v. State, 148, 476. 
v. Stratton, 267. 
Wingv. Benham, 302. 
Winn v. State, 11. 
Winona v. Whipple, 230. 
Winterton v. State, 104. 
Wlecke v. People, 504. 
Wolf, Ex parte, 236, 432. 
v. Lansing, 21, 225. 
Wolfson v. Rubicon Tp., 199. 
Wolters, Ex parte, 230. 
Wood v. Brooklyn, 235. 
v. Riddle, 173. 
v. State, 472. 
v. Territory, 406, 415, 504. 
Woodlief v. State, 106, 116 
Woods v. Commonwealth, 20, 485. 
v. Pratt, 164. 
v. Prineville, 234, 478. 
v. State, 206. 
Woodward v. Squires, 265. 
Woodworth v. State, 489. 
Wooldridge, In re, 96. 
Woolheather v. Risley, 299, 307, 308,315 
324. 
Woolstein v. Welch, 73, 86. 
Wooster v. State, 20. 
Worley v. Spurgeon, 5, 298. 
Wreidt v. State, 371, 415. 
Wright v. People, 206. 
v. Treat, 315, 319. 
Wrocklege v. State, 471, 549. 
Wynehamer v. People, 37, 68, 83, 222. 
Y. 
Yazoo City v. State, 218. 
Yeager, Ex parte, 170. 
Yick Wo v. Hopkins, 47, 83, 115. 
Young v. Blaisdell, 193. 
v. Commonwealth, 102-104, 461, 463 
534 
v. State, 406, 415, 422, 424, 504. 
Young, Liquors of, In re, 354. 
Youngblood v. Sexton, 108, 117, 179. 
Yowell v. State, 434. 
z. 
Zanone v. Mound City, 170, 172. 
Zarresseller v. People, 104, 472. 
Zeigler v. Commonwealth, 368, 415. 
Zeizer v. State, 533. 
Zinner v. Commonwealth, 150, 154. 
Zumhoff v. State, 54, 339, 388, 440, 461 
486. THE LAW OF INTOXICATING LIQUORS. 
CHAPTER I. 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 1. Terms used in Statutes. 
2. Intoxicating Liquors. 
3. Spirituous Liquors. 
4. Distilled Liquors. 
5. Wine, or Vinous Liquors. 
6. Malt Liquors. 
7. Liquor, or Liquors. 
8. Medicinal and Toilet Preparations. 
9, Bitters. 
10. Fruits Preserved in Spirits. 
11. Alcohol. 
12. Whisky. 
13. Brandy. 
14. Gin. 
15. Rum. 
16. Ale. 
17. Beer. 
18. Cider. 
19. Tavern. 
20. Tippling-House. 
21. Saloon. 
22. Bar-Room. 
23. Wholesaler and Retailer. 
§ 1. Terms used in Statutes. 
The statutes enacted in the various states, for the regulation of the 
manufacture and sale of intoxicants, have employed a variety of terms 
as designations of the species of beverages against which their pro- 
visions are directed. In some instances, the laws are explicit in nam- 
ing the liquors intended. But for the most part, legislatures have 
INTOX.LIQ. 1 § 2 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
been content to use general expressions, leaving it for courts and ju- 
ries to determine whether particular fluids came within the language 
of the act. Such general terms are "intoxicating liquors," "intoxi- 
cating beverages," "spirituous liquors," "ardent spirits," "strong 
liquors," "distilled," "vinous," "fermented," or "malt" liquors. As 
it is essential that the meaning of these terms should be clearly un- 
derstood, in all our subsequent discussions, we shall proceed to con- 
sider their significance in the light of the adjudged cases and other 
authorities, and to state the decisions in regard to certain of the well 
known varieties of liquor, with reference to their inclusion in one or 
other of these terms and to the province of the courts in taking ju- 
dicial notice of their nature and properties. This, together with a 
consideration of the meaning of some other terms,-such as "tav- 
ern," "tippling-house," "saloon," etc.,-will constitute the matter of 
the present chapter. 
§ 2. Intoxicating Liquors 
The meaning of this term is in some instances prescribed in the 
statute itself. And when that is the case, there is no room for 
further inquiry into its scope, nor are the courts called upon to 
construe it.1 Neither, in the face of a statutory definition, is it 
permissible to examine into the actual intoxicating properties of any 
liquor named or indicated in the law. Thus, if the law provides 
that the term "shall be construed to mean alcohol, wine, beer, spir- 
ituous, vinous, and malt liquors, and all intoxicating liquors what- 
ever," a beverage containing alcohol is an intoxicant, regardless 
of whether the quantity of alcohol contained in it is or is not, of 
itself, intoxicating.2 But if the general expression is used, with- 
out more, it may be defined as meaning any liquor, intended for 
use as a beverage or capable of being so used, which contains al- 
cohol, either obtained by fermentation or by the additional process 
of distillation, in such a proportion that it will produce intoxication 
when taken in such quantities as may practically be drunk.3 And 
1 State v. Wittmar, 12 Mo. 407. 
2State v. Intoxicating Liquors, 76 
Iowa, 243, 41 N. W. Rep. 6. 
3 Intoxicating Liquor Cases, 25 Kans. 
767, 37 Am. Rep. 284; Comm'rs v. Tay- 
lor, 21 N. Y. 173; People v. Hawley, 3 
2 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 3 
here it must be noted that the two terms, "intoxicating liquor" and 
"spirituous liquor," are not synonymous or convertible.4 The former 
is much wider than the latter. All spirituous liquor is intoxicating, 
but not all intoxicating liquor is spirituous. In correct use, the last 
named term is confined to distilled liquor; but there are various 
kinds of intoxicating liquor which are not the product of the still. 
Either spirituous, vinous, or malt liquor may be intoxicating, yet 
neither of these classes, nor all of them combined, include all that 
is meant by intoxicating liquors or beverages.5 Hence, for example, 
a statute entitled "an act to prohibit the sale of spirituous liquors," 
which declares that it shall be unlawful for any person to sell intox- 
icating liquors, contains matter different from that expressed in its 
title.6 Practically, the character of a given liquor, as intoxicating or 
not, must depend upon the quantity of alcohol which it contains. But 
no attempt to fix the necessary proportion of this ingredient has met 
with universal acceptance. In one of the cases it was suggested that 
this character should not be ascribed to those beverages "containing 
so small a percentage of alcohol that the human stomach cannot con- 
tain sufficient of the liquor to produce that effect."7 In cases where 
the proportion of alcohol is large, there is no difficulty in reaching a 
correct conclusion.8 But otherwise the question must in general be 
left to the determination of the jury, upon the evidence of persons 
acquainted with the liquor in controversy or who have observed the 
effects of its use. 
§ 3. Spirituous Liquors. 
There are a few decisions in which the courts have given a wider 
scope to this term than that indicated in the preceding section. 
Thus, in North Carolina, it has been held that the phrase "spirit- 
Mich. 330; Foster v. State, 36 Ark. 258; 
Bishop, Stat. Crimes, § 1007. 
4 Comm. v. Grey, 2 Gray, 501, 61 Am. 
Dec. 476; Comm. v. Livermore, 4 Gray, 
18; Clifford v. State, 29 Wis. 327; McDuf- 
fie v. State, (Ga.) 13 S. E. Rep. 596; Allred 
v. State, 89 Ala. 112, 8 South. Rep. 56. 
5 Allred v. State, 89 Ala. 112, 8 South. 
Rep. 56. 
6McDuffie v. State, (Ga.) 13 S. E. Rep. 
596. 
7Comm'rs of Excise v. Taylor, 21 N. 
Y. 173. 
8For example, an allegation of the 
sale of intoxicating liquors is sustained 
by proof of sales of "sun-smile, " an ar- 
ticle containing fifteen per cent, of al- 
cohol, and capable of producing intox- 
3 § 3 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
uous liquors," as used in the statutes, includes fermented liquors, 
such as wine and beer, as well as distilled liquors.9 And there was 
also a similar ruling once made in Tennessee.10 This, however, was 
in a case where the statute simply prohibited the sale of "spirituous 
liquors" on Sunday, and the court felt constrained to construe the 
phrase liberally in order to prevent evasions and subterfuges. And 
even with this reason for its doctrine the case referred to was over- 
ruled in a later decision, wherein it was held that the term in ques- 
tion included only distilled liquors, and notwine, ale, or beer.11 This 
last interpretation-which is certainly consonant both with reason and 
the right use of language-is the one which all the courts are now 
agreed upon,12 with the exception of the case cited from North Carolina. 
Of course, however, the statute itself may direct that a wider signifi- 
cation be given to this term than its ordinary use warrants. Such 
is the case in New7 Hampshire, where it is provided that the phrase 
"spirituous liquors" shall include "all spirituous or intoxicating liq- 
uor, and all mixed liquor any part of which is spirituous or intoxicat- 
ing." Under this enactment, the courts hold that intoxicating wines 
are included within the prohibition of the statute.13 It is also to be 
ication. Prussia v. Guenther, 16 Abb. 
New Cas. 230. 
9 State v. Giersch, 98 N. Car. 720, 4 S. 
E. Bep. 193. In this case, Merrimon, 
J., observes: " 'Spirituous' means con- 
taining. partaking of. spirit; having the 
refined, strong, ardent quality of alco- 
hol in greater or less degree. Hence 
' spirituous liquors ' imply such liquors 
as above defined,-as contain alcohol 
and thus have spirit,-no matter by 
what particular name denominated, or 
in what liquid form or combination 
they may appear. Hence, also, distilled 
liquors, fermented liquors, and vinous 
liquors are all alike spirituous liquors. 
These liquors, respectively, may have 
different degrees of spirit in point of 
fineness and strength. Distilled liquors 
may be stronger or weaker according to 
the quantity and quality of the alcohol 
in them, and so of the other kinds men- 
tioned. We know from general obser- 
Nation and knowledge, and it is a gen- 
erally admitted physical fact, not de- 
nied in this case, that lager beer and 
wine contain alcohol, and, generally, in 
such quantity and degree as to produce 
intoxication. These liquors therefore 
are spirituous, and obviously come 
within the meaning and are embraced 
by the words 'spirituous liquors' as 
used in the statute, unless there is some- 
thing in the latter which shows that 
these words were intended to have a 
more limited application." 
10 State v. Sharrer, 2 Cold. 323. 
11 Fritz v. State, 1 Baxt. 15. 
12 Comm. v. Grey, 2 Gray, 501, 61 Am. 
Dec. 476; Comm. v. Livermore. 4 Gray, 
18; Clifford v. State, 29 Wis. 327; State 
v. Moore, 5 Blackf. 118; Comm. v. Jor- 
dan, 18 Pick. 228; State v. Thompson, 
20 W. Va. 674. See Atty. Gen. v. Bailey, 
1 Exch. 281. 
13 Jones v. Surprise, 64 N. H. 243, 9 
4 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 5 
noted that the restricted meaning of the term cannot be relied upon 
as a cloak for crafty evasions of the law. Thus, the offense of un- 
lawfully selling "spirituous liquor" may be committed by a sale of 
such liquor mixed in small quantities with other unknown ingredients, 
and called for and sold as "beer."14 An indictment for the unlaw- 
ful sale of spirituous liquors is not bad for using the word "spiritual" 
or "spiritous," instead of the correct term.16 
§ 4. Distilled Liquors. 
This phrase, though of rarer occurrence in the statutes than those 
we have already defined, is sometimes used in connection with the 
terms "vinous" and "malt" liquors. It includes only such liquors as 
are obtained by the process of distillation, e. g., whisky, brandy, rum, 
gin, maraschino, etc., and is never applied to wine, beer, ale, or 
other fermented or malt liquors. Under the internal revenue laws 
of the United States the term embraces all spirits produced by dis- 
tillation, whether they are rectified or not.18 
§ 5. Wine, or Vinous Liquors. 
As we have seen in a preceding section, wine is not properly 
included in the term "spirituous liquor," that designation being 
applicable, when language is correctly used, only to such beverages as 
are produced by distillation, and not to fermented liquors.17 In 
ordinary parlance, and within the meaning of the statutes on the sub- 
ject, the phrase "vinous liquor" denotes such liquor as is made from 
the fermented juice of the grape.18 But since the term "wine" is 
Atl. Rep. 384, construing Gen. Laws N. 
H. c. 109, §§ 3, 13, 18. 
14 Comm. v. Bathrick, 6 Cush. 247. 
15 State v. Clark, 3 Ind. 451; Comm. v. 
Burke. 15 Gray, 408. 
16 U. S. Rev. St. §§ 3248. 3289, 3299; U. 
S. v. Anthony, 14 Blatchf. 92. 
17 State v. Moore, 5 Blackf. 118; Cas- 
well v. State, 2 Humph. 402. See State 
v. Stewart, 31 Me. 515. Compare State 
v. Giersch, 98 N. Car. 720, 4 S. E. Rep. 
193; Jones v. Surprise, 64 N. H. 243, 9 
Atl. Rep. 384. 
u Supra, § 3; Adler v. State, 55 Ala. 
16; Worley v. Spurgeon, 38 Iowa, 467; 
Allred v. State, 89 Ala. 112, 8 South. 
Rep. 56. 
5 § 5 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
also used, in a secondary sense, of certain fluids extracted from ber- 
ries and from other fruits than the grape, it is pertinent to inquire 
whether these also should be understood as included in the statutory 
designation of vinous liquors. There is some authority for holding 
that they are not so included. Thus, in regard to the word "vinous," 
it is said: "Without endeavoring to trace it any further back, we 
may say that it is derived from the Latin vinum, wine, and so named 
because made from the fruit of the vine. Wine is defined in Wor- 
cester's dictionary, after the statement of its derivation, and after 
reference to the word in the language of many nations, as meaning, 
first, the fermented juice of the grape; second, the fermented juice 
of certain fruits resembling in many respects the wine obtained from 
grapes, but distinguished therefrom by naming the source whence it 
is derived, as ginger-wine, gooseberry-wine, currant-wine, etc. Noth- 
ing is said about apple-wine or pear-wine, unless they are included 
in the 'etc.' ... If the statute might include among the 
'vinous' fluids those which come from the juice of fruits which grow on 
vines and bushes, and are named wine, we do not think it should be 
construed so liberally as to apply the term 'vinous' to the juice of 
fruits which grow on trees."19 That wine is intoxicating is a famil- 
iar fact. And hence it would seem too plain for argument that it is 
included in the term "intoxicating liquors" as used in the statutes. 
Yet the courts have shown considerable hesitation in so holding. In 
Maine, it seems to be the doctrine that the question must be left to 
the jury.20 In Pennsylvania, under an act prohibiting the sale of 
"vinous liquors" within a certain district, it is ruled that an offense 
is committed by the sale of domestic wine, which need not be shown 
to be intoxicating.21 In one of the earlier Indiana decisions, the 
court declared that it did not know judicially that wine was not in- 
toxicating, and that it would not question the power of the legislature 
to declare it to be so.22 But in North Carolina, it is fairly held that 
on proof of a sale of port wine, the fact of its intoxicating quality is 
a matter of common knowledge, and can be passed on by the jury 
19 Feldman v. Morrison, 1 Ill. App. 
460. 
20 State v. Page, 66 Me. 418. 
21 Hatfield v. Comm., 120 Pa. St. 895, 
14 Atl. Rep. 151. 
^Jackson v. State, 19 Ind. 312. 
6 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 6 
without evidence,23-a decision which will certainly commend itself 
as in accordance with both law and reason. 
§ 6. Malt Liquors. 
This term, it is said, "embraces porter, ale, beer, and the like, 
which are the result or product of a process by which grain, usually 
barley, is steeped in water to the point of germination, the starch of 
the grain being thus converted into saccharine matter, which is kiln 
dried, then mixed with hops, and by a further process of brewing 
made into a beverage." 24 The term, however, is so general in its 
signification that the courts decline to take official notice of all the 
different varieties of liquor which may be thus described, and are 
unwilling to rule, ex officio, that all malt liquors are intoxicating, 
unless it is so declared by statute. Thus, under a law which enacts 
that "ale . . . and all other malt liquors shall be considered 
intoxicating liquors within the meaning of this chapter," it is held 
that the question, "what is the malt liquor intended by and embraced 
in the statute," is a question of fact for the jury, and not one of law 
for the court. The court which made this ruling remarked that the 
term in question " is a general term, embracing several kinds of liq- 
uor; what liquors are embraced in it, as well as the mode of their 
manufacture and the ingredients of which they are composed, is a 
question of fact for the jury, and not of law for the court. In every 
case in which the question is involved, it is competent for both par- 
ties to show by proper evidence what a malt liquor is, how it is man- 
ufactured, and of what it is composed, and also to show whether the 
particular liquor in controversy is or is not a malt liquor, and the 
jury must determine the issue upon the evidence." 25 Under this rule, 
proof that a saloon-keeper drew from kegs and sold an article which 
was called " pop," and that it was a malt liquor and would intoxicate 
if taken in sufficient quantities, is held to warrant a conviction for 
selling intoxicating liquor.26 
23 State v. Packer, 80 N. Car. 439. 
24 Allred v. State, 89 Ala. 112, 8 South. 
Rep. 56. 
26 State v. Starr, 67 Me. 242. See State 
v. Volmer, 6 Kans. 371. 
26Godfreidson v. People, 88 Ill. 284. 
7 § 8 
[Ch. 1 
LAW OF INTOXICATING LIQUORS. 
Liquor, or Liquors. 
Either of these terms, standing alone, is too wide to have a pre- 
cise legal signification, unless explained by the context or by neces- 
sary inferences from the subject-matter of the statute. When thus 
explained, however, the word " liquor " or " liquors " is commonly 
understood as including all varieties of intoxicating beverages,whether 
spirituous, vinous, or malt.27 Thus it is held that this word, as used 
in a federal statute providing that " there shall be no allowance for 
breakage, leakage, or damage on wines, liquors, cordials, or distilled 
spirits," includes fermented as well as distilled liquors, and covers 
lager beer.28 So, under a statute forbidding a credit of more than 
ten dollars for " liquors " sold, it is held that champagne wine is 
included.29 
§ 8. Medicinal and Toilet Preparations. 
Many varieties of medicines, cordials, tonics, bitters, and the like, 
contain a large proportion of alcohol and are capable of producing 
entire or partial intoxication if taken in sufficient doses. In conse- 
quence of the fact that perpetual attempts are made to evade the 
law by selling ardent spirits more or less effectually disguised by the 
addition of drugs, and called "medicine," the question of the appli- 
cation of the statutes to substances of this kind has frequently 
engaged the attention of the courts, and has been found to involve no 
small degree of difficulty. In one of the leading cases, the supreme 
court of Kansas, upon a most fair and thorough examination of the 
question, reached the following conclusions. First, whatever is gen- 
erally and popularly known as intoxicating liquor, such as whisky, 
brandy, or gin, is within the prohibitions of the statute, and may 
be so declared as matter of law by the courts. Second, whatever is 
generally and popularly known as medicine, or as an article for the 
27 People v. Crilley, 20 Barb. 248; 
State v. Brittain, 89 N. Car. 576. 
28 Hollender v. Magone, 38 Fed. Rep. 
912. 
29 Kizer v. Randleman, 5 Jones, (N. 
Car.) 428. 
8 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 8 
toilet or for culinary purposes, and which is recognized, and the 
formula for its preparation prescribed, in some standard authority, 
(such as the United States Dispensatory,) and is not among the liq- 
uors ordinarily used as intoxicating beverages,-e. g., tincture of 
gentian, paregoric, bay rum, cologne, essence of lemon,-is not within 
the statute, and may be so declared as matter of law by the courts, 
notwithstanding such articles contain alcohol and may produce 
intoxication. Third, as to articles intermediate between these two 
classes, articles not known to the standard authorities, compounds 
of intoxicating liquors with other ingredients, whether provided for 
a single case, or compounded upon a formula and sold under a spe- 
cific name, as bitters, cordials, tonics, etc., whether they are within 
or without the statute, is a question of fact for the jury alone. And 
in the latter class of cases, the test is not the presence or amount of 
alcohol, but the adaptability of the substance to the one use or the 
other, as medicine or as a beverage. "If the compound or prepara- 
tion," said the court, "be such that the distinctive character and 
effect of intoxicating liquor are gone, that its use as an intoxicating 
beverage is practically impossible by reason of the other ingredients, 
it is not within the statute. The mere presence of the alcohol does 
not bring the article within the prohibition. The influence of the 
alcohol may be counteracted by the other elements, and the com- 
pound be strictly and fairly only a medicine. On the other hand, if 
the intoxicating liquor remain as a distinctive force in the compound, 
and such compound is reasonably liable to be used as an intoxicat- 
ing beverage, it is within the statute, and this though it contain 
many other ingredients, and ingredients of an independent and ben- 
eficial force in counteracting disease or strengthening the system." 30 
The doctrine of this decision, and the justice of the test which it 
proposes, are amply supported by the other authorities, both earlier 
and later.31 
30 Intoxicating Liquor Cases, 25 Kans. 
751, 37 Am. Rep. 284. 
31 Comm. v. Ramsdell, 130 Mass. 68; 
United States v. Stubblefield, 40 Fed. 
Rep. 454; Russell v. Sloan, 33 Vt. 656; 
Davis v. State, 50 Ark. 17, 6 S. W. Rep. 
388; State v. Muncey, 28 W. Va. 494; 
State v. Coulter, 40 Kans. 87, 19 Pac. 
Rep. 368; Wall v. State, 78 Ala. 417; 
Comm. v. Hallett, 103 Mass. 452; Bishop, 
Stat. Crimes, $ 1020. In State v. Laffer, 
38 Iowa, 422, it was said: "So long as 
9 § 8 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
To illustrate these principles we may cite a case where the article 
sold was gum-camphor and alcohol, mixed by the vendor and sold 
as a medicine, which was held to be no violation of the law;32 and 
another case where a decoction of whisky with bitter herbs and 
barks, intoxicating, and used as a beverage, was held to be within 
the statute.33 Much will depend, in this connection, upon the pre- 
cise terms of the law. For example, a sale of preparations known 
as "Home Bitters" and "Home Sanative Cordial," containing twenty- 
two per cent, of alcohol, but entirely unfit to be used except as med- 
icine, was held to be within an act prohibiting the sale of ardent 
spirits "and all compounds or preparations thereof, commonly called 
tonics, bitters, or medicated liquors."34 But where the statute is not 
so specific in its terms, the accepted rule, in accordance with the 
the liquors retain their character as in- 
toxicating liquors, capable of use as a 
beverage, notwithstanding other in- 
gredients may have been mixed there- 
with, they fall under the ban of the 
law; but when they are so compounded 
with other substances as to lose the dis- 
tinctive character of intoxicating liq- 
uors, and are no longer desirable for 
use as a stimulating beverage, and are 
in fact medicine, then their sale is not 
prohibited. " 
82 State v. Haymond, 20 W. Va. 18, 43 
Am. Rep. 787. 
83 Wall v. State, 78 Ala. 417. 
^Gostorf v. State, 39 Ark. 450. The 
medicines here in question were shown 
by evidence at the trial to be whole- 
some and excellent remedies, and en- 
tirely unfit to be used as a beverage. 
A medical witness said: "I cannot con- 
ceive how any one could use these ar- 
ticles as a beverage. If taken largely, 
it would be an emetic." Yet it seems 
plain that they came within the prohi- 
bitions of the statute, and it would be 
difficult to point out error in the decis- 
ion. The case furnishes an illustration 
of legislative zeal overreaching itself. 
The following instruction was given by 
the trial court and approved by the ap- 
pellate court. "If the inhibitory lan- 
guage of the act was confined to 'ar- 
dent, vinous, malt,or fermented liquors,' 
a reasonable interpretation of the act 
might well limit its operation to such 
compounds or preparations as were 
merely pretexts to evade the law by mak- 
ing sale of the prohibited articles under 
the thin disguise of medicated syrup 
instead of sugar for sweetening. But 
the language goes further, and express- 
ly, in so many words, forbids the sale 
of 'any compounds or preparations 
thereof, commonly called tonics, bit- 
ters, or medicated liquors,' and this full 
enumeration is emphasized by being 
repeated five times in this act. The leg- 
islature. under its police power, is au- 
thorized to inhibit or regulate by license 
whatever is harmful in itself, or harm- 
ful in its indirect influence upon the 
community. The main object, doubt- 
less, of the act, was to prevent the sale 
of such mixtures as were to be sold and 
used as beverages and substitutes for 
ardent liquors. But the legislature 
might well have anticipated the frauds 
easily perpetrated upon the law, and 
the consequent evasions thereof, if the 
state were required in each case to give 
the component parts and relative pro- 
portions of the tonics and bitters sold. " 
10 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 9 
authorities already cited, is that the fact that a medicine does con- 
tain a certain proportion of alcohol is not of itself evidence that its 
sale is unlawful, and that the quantity of alcohol does not neces- 
sarily determine whether or not a liquor is intoxicating as contem- 
plated by the prohibitions of the law.35 And it is equally well set- 
tled that the question, whether or not a particular article of this 
general description is within the law, is a question of fact which 
must be passed upon by the jury, and not one which the court, will 
undertake to determine.36 The defendant is entitled to prove, if he 
can, that the article sold was a medicine and not liquor.37 But it 
is no defense that he believed that what he sold was a medicine or 
was not intoxicating.38 And the court, when there is reason to think 
that a mere evasion of the law is being attempted, may aid the jury 
by proper charges. Thus, an instruction relating to the sale of 
"nerve-tonic" by the accused is relevant, where there is evidence that 
nerve-tonic means rye whisky.39 A druggist selling liquor without a 
license cannot escape liability on the ground that there was quinine 
in the liquor and it was sold as medicine.40 
§ 9. Bitters. 
In regard to the class of infusions commonly called "bitters," the 
same principles which were explained in the preceding section are 
adjudged applicable. Whether the sale of a particular "bitters" 
containing alcohol is a violation of a prohibitory liquor law depends 
upon the question whether, in such article, the distinctive character 
and effect of intoxicating liquor are present, so that it may be used 
as an intoxicating beverage, notwithstanding the other ingredients. 
If it cannot be so used, if the other ingredients are medicinal, and 
36 Davis v. State, 50 Ark. 17, 6 S. W. 
Rep. 388; State v. Coulter, 40 Kans. 87, 
19 Pac. Rep. 368. Compare Foster v. 
State, 36 Ark. 258; State v. Gray, (Conn.) 
22 Atl. Rep. 675. 
36 Intoxicating Liquor Cases, 25 Kans. 
751, 37 Am. Rep. 284; Allred v. State, 89 
Ala. 112, 8 South. Rep. 56; Butler v. 
State, 25 Fla. 347, 6 South. Rep. 67. 
37 Prather v. State, 12 Tex. App. 401. 
88 Comm. v. Hallett, 103 Mass. 452. 
89 Kinnebrew v. State, 80 Ga. 232, 5 
S. E. Rep. 56. 
40 Warrick v. Rounds, 17 Nebr. 411, 22 
N. W. Rep. 785. See, also, United 
States v. White, 42 Fed. Rep. 138. 
11 § io 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
the alcohol is a necessary preservative or vehicle for them, the sale 
is lawful.41 But this is a fact to be ascertained by evidence and 
passed upon by the jury. It is not the duty, nor is it within the 
province, of the court, to declare, as a matter of judicial knowledge, 
that any particular variety of "bitters" is or is not an intoxicating 
liquor.42 Here, also, much will depend upon the language of the 
statute. For example, in Missouri, the law expressly includes, in 
the definition of intoxicating liquors, "any composition of which spir- 
ituous liquor is a part," and it is there held to be a violation of the 
law to sell, as a beverage, "bitters" thus compounded, notwithstand- 
ing a United States excise tax has been paid thereon, (showing that 
the article is classed as a medicine,) and although the federal law 
requires no license for the sale of the same.43 
§ 10. Fruits Preserved in Spirits. 
One of the most popular devices for evading the liquor law was 
the sale of so-called "brandy peaches" and "brandy cherries." To 
meet this subterfuge, the courts have ruled that, whatever might be 
the case with genuine preserves or confectionery decocted or flavored 
with brandy, if the evidence disclosed that the article sold was in 
reality brandy or other liquor disguised by the addition of a little 
fruit, and sold and used, not as a palatable preserve, but as a stim- 
ulating beverage, then it would be held to be within the terms and 
meaning of the law.44 Thus it was held that a merchant who kept a 
stock of brandy cherries in pint and quart bottles, which he sold to 
customers, furnishing glasses with which they might drink the 
brandy, was properly convicted of illegally selling liquor.45 But the 
court in Arkansas, under the rule that no license is required to sell 
fruits preserved in spirits,-although one cannot evade the law by 
41 Carl v. State, 87 Ala. 17, 6 South. 
Rep. 118; Same v. Same, 89 Ala. 93, 8 
South. Rep. 156; Comm. v. Pease, 110 
Mass. 412; King v. State, 58 Miss. 737, 
38 Am. Rep. 344; James v. State, 21 
Tex. App. 353, 17 S. W. Rep. 422. 
42 Allred v. State, 89 Ala. 112, 8 South. 
Rep. 56. 
48 State v. Lillard, 78 Mo. 136; State v. 
Wilson, 80 Mo. 303. 
44 Ryall v. State, 78 Ala. 410; United 
States v. Stafford, 20 Fed. Rep. 720. 
46 Musick v. State, 51 Ark. 165, 10 S. 
W. Rep. 225. 
12 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 11 
selling a few peaches or cherries in a bottle of liquor,-holds that a 
sale of six peaches in a bottle with a gill of liquor, is no violation of 
the law.46 
§ 11. Alcohol. 
Whether alcohol, in its pure state, comes within the description of 
"spirituous liquors" or "intoxicating liquors" is a question upon which 
the courts are by no means agreed. On the one hand, it has been 
ruled that no proof is required of the intoxicating properties of this 
liquid; that, as a matter of law, it is known to be an intoxicant; and 
that an indictment for selling intoxicating liquor is sustained by proof 
of a sale of alcohol.47 But on the other hand, we have a judicial 
declaration that alcohol is neither ardent nor vinous spirits, and that 
its sale is not in any manner restricted or regulated by a prohibitory 
liquor law.48 The supreme court of Illinois, while apparently unwill- 
ing td decide either way as a matter of law, inclines to the former 
view. In response to an objection that pure alcohol is not, in legal 
parlance, a spirituous liquor, that tribunal is reported as saying "it 
is not, in common parlance, so considered, although it is the basis 
of all spirituous liquors. We are not prepared to say, however, that 
selling pure alcohol is not selling spirituous liquor."49 The difficulty 
of the question lies in the fact that alcohol, while certainly intoxicat- 
ing, is very rarely used as a beverage, but is adapted to many medic- 
inal and mechanical uses. It is clear that no proof need be required 
of its intoxicating character. But the circumstances of the particular 
sale, the manner and purpose of it, and the characters of seller and 
purchaser, should be mainly consulted in determining whether it 
comes within the law. If a saloon-keeper sells alcohol to an intoxi- 
cated person, in order that the latter may drink it, it is evident that 
the law is violated. But if a druggist, not authorized to sell liquor, 
sells alcohol to a surgeon, to be used by the latter in preserving ana- 
tomical specimens, it is equally clear that there is no infraction of 
the law. In line with these principles is a decision of the court in 
46 Rabe v. State, 39 Ark. 204. 
47 Snider v. State, 81 Ga. 753, 7 S. E. 
Rep. 631. 
48 State v. Martin, 34 Ark. 340. 
49 Bennett v. People, 30 Ill. 389. 
13 § 12 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
Arkansas, wherein it is said: "This court does not judicially know 
that it [alcohol] is an intoxicating beverage, like whisky, nor that it 
is in common use for purposes of dissipation, nor even that it is 
capable of being applied to such a use. If, however, such is the case, 
and the liquor-seller uses this subterfuge for the purpose of pursuing 
his calling and evading the law, it is possible that a conviction upon 
an indictment for selling ardent spirits might be sustained by proof 
of a sale of alcohol. But a bare charge of selling alcohol discloses no 
criminal offense."60 
§ 12. Whisky. 
Whisky is a liquor distilled from grain, possessing intoxicating 
properties. It is within the terms of any statute prohibiting or regu- 
lating the sale of either "intoxicating," "spirituous," or "distilled" 
liquors. But it is not a vinous or a malt liquor, and is not in any 
proper sense a "drug."61 That whisky is a spirituous and intoxi- 
cating liquor is a fact of which the courts will take judicial notice.62 
"As every person of common intelligence knows that whisky is an 
intoxicating liquor, and there was no question, and could be none, as 
to that fact, the instruction that it was so was unobjectionable." 63 
"As the courts are presumed to be acquainted with the meaning of 
English words, we must take notice that whisky is a spirit distilled 
from grain, and one species of the prohibited commodity. We are 
not required to shut our eyes to what we do know, and bring reproach 
upon the administration of the law by giving way to objections so 
utterly destitute of merit."64 Hence it follows that an indictment 
for unlawfully selling whisky need not in terms allege that whisky 
is a spirituous or intoxicating liquor.65 And an indictment for sell- 
ing "intoxicating liquor, to wit, one pint of whisky," will be held to 
60 State v. Witt, 39 Ark. 216; Winn v. 
State, 43 Ark. 151. 
61 Gault v. State, 34 Ga. 533. 
62 Schlicht v. State, 56 Ind. 173; Eagan 
v. State, 53 Ind. 162; Carmon v. State, 
18 Ind. 450; Edgar v. State, 37 Ark. 219; 
State v. Williamson, 21 Mo. 496; Frese 
v. State, 23 Fla. 267, 2 South Rep. 1. 
68 Edgar v. State, 37 Ark. 219. 
64 State v. Williamson, 21 Mo. 496. 
66 Schlicht v. State, 56 Ind. 173; Eagan 
v. State, 53 Ind. 162; Carmon v. State, 
18 Ind. 450; State v. Williamson, 21 Mo. 
496; People v. Webster, 2 Dougl. 
(Mich.) 92. 
14 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 13 
sufficiently charge the offense of selling "distilled liquor."56 In a 
case in Texas, where the prosecution was for selling whisky on Sun- 
day, it was in proof that the beverage sold was "whisky cocktail," 
a compound in which whisky was the predominant element. It was 
held that the sale was of whisky within the purview of the statute, 
and that there was no variance between the allegation and the proof.67 
So an indictment for selling spirituous liquor is sustained by proof 
of the sale of "common cordial," where that is shown to be whisky 
sweetened with sugar and flavored with peppermint.68 
§ 13. Brandy. 
Brandy, as the derivation of the word imports, is an alcoholic liquor 
distilled from wine. But the name is also given to spirit distilled 
from other liquors, and, in the United States, to that distilled from 
cider and peaches.69 In any case, it is included in the designation 
of "intoxicating," "distilled," or "spirituous" liquor, but is not vinous 
or malt. This being a matter of common knowledge, and one 
which the courts will officially notice, it is not necessary to allege in 
an indictment,60 or for the jury to find,61 that brandy is a spirituous 
or intoxicating liquor. And it has been held in Indiana that the 
court will take judicial notice that "blackberry brandy" is an intox- 
icating liquor. In making this ruling, Elliott, J., remarked: "Brandy 
is ranked as an intoxicating liquor by writers upon the general sub- 
ject, and that it is a liquor of that character is generally and com- 
monly known. The fact is therefore one of which the courts will take 
judicial knowledge. The addition to the term ' brandy ' of the word 
' blackberry ' does no more than designate it as a particular kind 
of brandy; it does not indicate that the liquor was not brandy of 
some kind. The natural and reasonable presumption is that the basis 
of the liquor was brandy and therefore intoxicating. If it was not, 
the appellant should have shown it." 62 
56 State v. Dengolensky, 82 Mo. 44. 
67 Galloway v. State, 23 Tex. App. 398, 
5 S. W. Rep. 246. 
68 State v. Bennet, 3 Harr. (Del.) 565. 
69 Webster's Diet. s. v. 
60 State v. Munger, 15 Vt. 290. 
61 State v. Wadsworth, 30 Conn. 55. 
62 Fenton v. State, 100 Ind. 598. 
15 § 15 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
§ 14. Qin. 
This is an alcoholic liquor distilled from rye and barley and fla- 
vored with juniper berries. It is not necessary to allege in an indict- 
ment,63 or for the jury to find as a fact,64 that gin is a spirituous 
or intoxicating liquor, as that is a matter of common in formation, 
"Everybody who knows what gin is," says the court in Massachusetts, 
knows not only that it is a liquor, but also that it is intoxicating. 
And it might as well have been objected that the jury could not find 
that gin was a liquor, without evidence that it was not a solid sub- 
stance, as that they could not find that it was intoxicating, without 
testimony to show it to be so. No juror can be supposed to be so 
ignorant as not to know what gin is. Proof, therefore, that the 
defendant sold gin is proof that he sold intoxicating liquor. If what 
he sold was not intoxicating liquor, it was not gin." 65 And any per- 
son is competent to testify that certain liquor was gin.66 
§ 15. Rum. 
Rum is defined as a kind of intoxicating liquor distilled from cane 
juice, or from the scummings of the boiled juice, or from treacle or 
molasses, or from the lees of former distillations.67 That it is a 
spirituous liquor and intoxicating is a matter of common knowledge 
which the courts will notice judicially. Hence an averment in an 
indictment that the defendant sold "rum" is sufficient, without an 
allegation that it was a spirituous or intoxicating liquor.68 Nor need 
the jury find this fact, in order to sustain a conviction.69 It is also 
ruled that rum is within the meaning of the United States revenue 
laws, prohibiting the selling of "spirituous liquors" without first pay- 
ing the tax.70 
63 State v. Munger, 15 Vt. 290. 
64 State v. Wadsworth, 30 Conn. 55. 
65 Comm. v. Peckham, 2 Gray, 514. 
68 Comm. v. Timothy, 8 Gray, 480. 
67 Webster's Diet, s. v. 
68 State v. Munger, 15 Vt. 290; State 
v. Mooty, 3 Hill, (S. Car.) 187. 
69 State v. Wadsworth, 30 Conn. 55. 
70 United States v. Angell, 11 Fed. 
Rep. 34. 
16 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 16 
§ 16. Ale. 
Ale is a fermented liquor made from an infusion of malt with the 
addition of a bitter, usually hops. In common parlance, the name 
is given to a heavier and stronger liquor, and containing a larger 
proportion of alcohol, than that denoted by the term "beer." Whether 
this article should be considered as falling within one or another of 
the general terms commonly employed in the statutes, and to what 
extent the courts should go in taking judicial notice of its character 
and its proper classification, are questions upon which great diver- 
sity of opinion has been manifested. In the first place, it seems to- 
be admitted that ale is not a "spirituous" liquor.71 That term, as 
we saw in a preceding section, is properly reserved as the designa- 
tion of liquors produced by distillation, and is not correctly applied 
to any others. But it must be here noted that a liquor sold as ale 
may be so mixed with spirituous liquor as to fall within the mean- 
ing of a statute which prohibits the sale of "any wine or spirituous 
liquor, mixed or unmixed."72 In New York the courts were confronted 
with the question whether ale was within the prohibition of an act 
relating to the sale of "strong or spirituous liquors." In the first 
case on the subject, Chancellor Walworth delivered a most exhaust- 
ive opinion, in which he collected and reviewed a vast amount of 
historical and other information, and concluded that the question 
must be answered in the affirmative.73 But nine years later, the 
supreme court declared that this decision was unnecessary to the 
case in which it was made, and proceeded to rule that ale did not 
belong to the class of "strong liquors" forbidden to be sold without 
license.74 A few years more and there was a return to the earlier 
holding.76 And the latest decisions in that state inferentially favor 
the doctrine that this liquor not only comes within the statute but 
is judicially known to be intoxicating.76 In the next place, it is said 
71 Fleming v. New Brunswick. 47 N. 
J. Law, 231; Walker v. Prescott, 44 N. 
H. 511. 
72 Walker v. Prescott, 44 N. H. 511. 
73 Nevin v. Ladue, 3 Denio, 43, 437. 
74 People v. Crilley, 20 Barb. 246. 
76 Comm'rs of Excise v. Freeoff, 17 
How. Pr. 442. 
76 Comm'rs of Excise v. Taylor, 21 N. 
Y. 173; Bau v. People, 63 N. Y. 277; 
INTOX.LIQ. 2 
17 § 17 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
that a court judicially recognizes the fact that ale is a "malt" liq- 
uor,77-which it could scarcely fail to do if professing any acquaint- 
ance with the language. But whether it can be known, without 
evidence, that this is an "intoxicating" liquor is as yet an unsettled 
question. In Ohio, it is held that ale is included under this desig- 
nation, save where it is expressly excepted by statute.78 And there 
are dicta in New York to the same general effect.79 But in the other 
states, it appears to be the rule that the question whether ale is an 
"intoxicating liquor" is one of fact, to be determined by the jury,80 
although it is said the question may be submitted to the jury with- 
out evidence.81 Of course, if the statute declares that ale shall be 
included among intoxicating liquors within its meaning, it is not 
necessary for the jury to find as a fact that it is intoxicating.82 
§ 17. Beer. 
On examining the decisions which have had to do with the defini- 
tion and classification of this species of beverage, the reader will at 
once discover a great conflict of opinion. The questions involved 
are by no means free from difficulty, but it is believed that they will 
admit of solution on sound and reasonable grounds. In the first 
place, it is conceded by all the authorities that beer is not included 
in the designation of either "vinous" or "spirituous" liquors as these 
terms are used in the statutes.83 Hence, if it is within the terms of 
any given law at all, it must be either because it is specifically named 
or because it belongs to the class of "malt" liquors or "strong" liq- 
uors or is included in the general term "intoxicating." But now let 
us suppose that a liquor charged to have been sold in violation of 
law is described in the indictment as "beer," or that the evidence 
Blatz v. Rohrbach, 116 N. Y. 450, 22 N. 
E. Rep. 1049. 
77 Wiles v. State, 33 Ind. 206. 
78 Johnston v. State, 23 Ohio St. 556. 
79 Rau v. People, 63 N. Y. 277; Blatz 
v. Rohrbach, 116 N. Y. 450, 22 N. E. 
Rep. 1049. 
80 State v. Biddle, 54 N. H. 379; State 
v. Barron, 37 Vt. 57; Haines v. Hanra- 
han, 105 Mass. 480. 
81 State v. Barron, 37 Vt. 57. 
82 State v. Wadsworth, 30 Conn. 55. 
83 State v. Brindle. 28 Iowa, 512; 
Tinker v. State, (Ala.) 8 South. Rep. 
855; Fritz v. State, 1 Baxt. 15. 
18 Ch. I] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 17 
shows a sale of "beer," without anything to give it greater particu- 
larity of description. Is this, of itself, sufficient to sustain a convic- 
tion? That this question admits of any doubt is due to two facts; 
first, that the word "beer" is used as a generic term, including both 
a class of alcoholic liquors, and a class of non-intoxicating beverages, 
made from the roots or other parts of various plants, although the 
latter are almost always described by the addition of a term showing 
their origin, as "spruce beer," "ginger beer," and the like; and sec- 
ond, that, in the case of beers made from malt and hops, some of the 
courts have declined to know officially that they possessed intoxicat- 
ing properties. Accordingly, we find numerous cases supporting the 
rule that there is no presumption of law that a liquor described 
simply as "beer" is a malt liquor, and that evidence of sales of "beer" 
is not enough without showing that it was "malt," "strong," or 
"intoxicating" beer.84 "It would seem," says the court in New York, 
"that a term which included both intoxicating and non-intoxicating 
liquors could not be said, in its ordinary meaning, necessarily to im- 
ply an intoxicating drink, unless such import has been given to it 
either by statute or by the decision of the courts."85 But this is not 
the approved rule. On the contrary, the preponderance of authority 
is to the effect that when the word "beer" is used, without any 
restriction or qualification, it denotes an intoxicating malt liquor; that 
when thus occurring in an indictment or complaint, or in the evi- 
dence, it is presumed to include only that species of beverage; and 
that, being taken in this sense, it will be sufficient, unless it is shown 
by evidence that the particular liquor so described was non-alcoholic.88 
84 State v. Beswick, 13 R. I. 211; Blatz 
v. Rohrbach, 116 N. Y. 450, 22 N. E. 
Rep. 1049; Comm. v. Hardiman, 9 
Gray, 136; Pekin v. Smelzel, 21 Ill. 464; 
Hausberg v. People, 120 Ill. 21, 8 N. E. 
Rep. 857; Netso v. State, 24 Fla. 363, 5 
South. Rep. 8. Note that the following 
Indiana decisions holding this doctrine 
have been overruled: Weis v. State, 33 
Ind. 204; Klare v. State, 43 Ind. 483; 
Lathrope v. State, 50 Ind. 555; Schlosser 
v. State, 55 Ind. 82; Plunkett v. State, 
69 Ind. 68; Kurz v. State, 79 Ind. 488. 
Compare Myers v. State, 93 Ind. 251; 
Stout v. State, 96 Ind. 407. 
85 Blatz v. Rohrbach, 116 N. Y. 450, 
22 N. E. Rep. 1049. 
86 People v. Wheelock, 3 Park. (N. 
Y.) 9; Comm'rs of Excise v. Freeoff, 17 
How. Pr. 442; Murphy v. Montclair, 39 
N. J. Law, 673; Myers v. State, 93 Ind. 
251; Stout v. State, 96 Ind. 407; Welsh 
v. State, 126 Ind. 71, 25 N. E. Rep. 883; 
State v. Lemp, 16 Mo. 389; State v. 
Houts, 36 Mo. App. 265; State v. Teis- 
sedre, 30 Kans. 476, 2 Pac. Rep. 650; 
19 § 17 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
This position seems to us unquestionably sound. It is supported by 
the following reasons. First, it is only in a secondary or derivative 
sense that the word "beer" is used as descriptive of any liquor other 
than malt beer. Second, when used in relation to any non-alcoholic 
extract or infusion, it is properly (and almost invariably) qualified 
by the addition of a descriptive term, as "root beer," "spruce beer," 
"ginger beer," etc. Third, w'hen used in bar-rooms and drinking 
saloons, and generally in connection with the sale of intoxicants, the 
word "beer" never denotes anything but an intoxicating malt liquor.87 
But in the next place, assuming that "beer" always denotes a malt 
and fermented liquor containing alcohol,-or assuming that it is more 
particularly described, so as to bring it distinctly within that class, 
as by calling it "lager beer,"-the question arises whether evidence 
of its intoxicating properties is required. The weight of authority 
appears to be with the cases holding that courts will take judicial 
notice that beer of this variety is intoxicating, and that it need not 
State v. Jenkins, 32 Kans. 477, 4 Pac. 
Rep. 809; Kerkow v. Bauer, 15 Neb. 
150, 18 N. W. Rep. 27; Briffitt v. State, 
58 Wis. 39, 16 N. W. Rep. 39; Watson 
v. State. 55 Ala. 658. 
87 This position was taken in the case 
of Myers v. State, 93 Ind. 251, where 
the court was so convinced of its sound- 
ness as to go to the length of overrul- 
ing a whole line of its previous decis- 
ions. We quote the following from 
the opinion by Judge Niblack: "Web- 
ster defines beer to be ' a fermented 
liquor made from any malted grain, 
with hops and other bitter flavoring 
matters.' In other words, it is a malt 
liquor, which the same author declares 
to be ' a liquor prepared for drink by an 
infusion of malt, as beer, ale, porter, 
etc.' It may therefore be said that beer 
is a liquor infused with malt, and pre- 
pared by fermentation for use as a bev- 
erage. As a consequence, when ' beer ' 
is called for at a place at which intoxi- 
cating drinks are sold, the bartender, 
having in view the primary meaning, 
as well as the common use, of the word, 
is justified in inferring, and must rea- 
sonably infer, that malt and fermented 
beer is wanted. If any other kind of 
beer is desired, it is expected that qual- 
ifying words will be used, such as 
spruce beer, root beer, small beer, gin- 
ger beer, and the like, thus attaching a 
remote and secondary meaning to the 
word ' beer,' as descriptive of particu- 
lar beverages. When, therefore, a wit- 
ness testifies to the sale or giving away 
of beer, under circumstances which 
make the sale or giving away of any in- 
toxicating liquor unlawful, the prima 
facie inference is that the beer was of 
that malted and fermented quality de- 
clared by the statute to be an intoxicat- 
ing liquor.and the court trying the cause 
ought to take judicial notice of the in- 
ference which thus arises from the use 
of the word 'beer' in its primary and 
general sense. These views are fulljr 
sustained by the recent case of Briffitt 
v. State, 58 Wis. 39, [s. c. 16 N.W. Rep. 
39, 46 Am. Rep. 621.] and to a greater 
or less extent by the cases of Comm. v. 
Anthes, 12 Gray, 29; People v. Wheel- 
20 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 17 
be shown to be so by evidence.88 But there are also decisions to the 
effect that lager beer must be shown to be capable of producing 
entire or partial intoxication, and that this is a fact to be ascertained 
by the jury upon the evidence in the case.89 In some of the earlier 
statutes and decisions, similar questions arose in relation to the char- 
acter and status of what was then denominated "strong beer." This 
term, though now practically obsolete, was once in familiar use as 
the name of a species of beer made of malt and hops, and so called 
in order to distinguish it from "small beer," which was compounded 
of molasses and yeast with the addition of either ginger or spruce, 
and which contained a very small percentage of alcohol. The "strong 
beer" seems to have been rich in the intoxicating principle, chemical 
analysis (in one of the reported cases) showing the presence of alco- 
hol in the proportion of eight per cent. And the courts had no diffi- 
culty in determining that this particular beverage was an intoxicating 
liquor within the meaning of the statutes on that subject.90 But, as 
it differed from the lager beer of modern commerce both in the pro- 
cess of its manufacture and in the proportion of alcohol contained, 
ock, 3 Park. (N. Y.) 9; Nevin v. Ladue, 
3 Denio, 43; Board, etc., v. Taylor, 21 
N. Y. 173; State v. Goyette, 11 R. I. 592; 
Ran v. People, 63 N. Y. 277. The 
strongest case relied upon by counsel 
for the appellant to support their posi- 
tion is that of Klare v. State. 43 Ind. 
483. But that case arose under the act 
of Feb. 27th, 1873, commonly known as 
the Baxter Bill, which contained no 
provision declaring what should be 
taken and construed to be intoxicating 
liquors, and that circumstance is re- 
ferred to in the opinion as an impor- 
tant, if not significant, omission, in 
view of the fact that the preceding act 
of Mar. 5th, 1859, on the same general 
subject, contained such a provision. 
The subsequent cases relied upon by 
appellant's counsel appear to have in- 
advertently followed the case of Klare 
v. State, supra, without observing that 
the act of Mar. 17th, 1875, enacted in 
effect that malt liquor must be held to 
be an intoxicating liquor, and without, 
perhaps, inquiring with sufficient care 
into the primary meaning of the word 
'beer' as used in ordinary parlance, a 
meaning to which recently more at- 
tention has been given. The subse- 
quent cases thus referred to are La- 
thrope v. State, 50 Ind. 555; Schlosser 
v. State, 55 Ind. 82; Shaw v. State, 50 
Ind. 188; Plunkett v State, 69 Ind. 68: 
Kurz v. State, 79 Ind. 488." 
88 Briffitt v. State, 58 Wis. 39,16 N. W. 
Rep. 39; State v. Goyette, 11 R. I. 592; 
State v. Rush, 13 R. I. 198; Waller v.. 
State, 38 Ark. 656. 
88 People v. Zeiger, 6Park. (N. Y.)355; 
People v. Schewe, 29 Hun, 122; Comm, 
v. Bios. 116 Mass. 56. 
"Markle v. Akron. 14 Ohio. 586; Peo- 
ple v. Hawley, 3 Mich. 330; Excise Com- 
m'rs v. Taylor, 21 N. Y. 173; Nevin v. 
Ladue, 3 Denio, 43, 437. Compare Peo- 
ple v. Crilley, 20 Barb. 246. 
21 § 17 
LAW OF INTOXICATING LIQUORS. 
[Ch. 1 
(the latter being a very much lighter fluid,) the courts appear to be 
unwilling to be bound, in their judicial dealings with the beer of 
to-day, by the precedents relating to the beer of a past generation. At 
least, there are some decisions, particularly in New York, not explain- 
able on any other hypothesis.91 
Under a statute (as in Massachusetts) expressly declaring that 
lager beer shall be deemed to be an intoxicating liquor, it is not 
incumbent on the prosecution to prove, nor is it permissible for the 
defendant to attempt to disprove, the actual intoxicating properties 
of this liquor.92 But in regard to varieties of beer not named in the 
act, or not of the familiar kinds already spoken of, the test of the 
lawfulness of their sale will be found in their character as intoxicat- 
ing or the reverse, and this must be ascertained by proper evidence. 
For instance, upon a trial for illegally selling "spirituous and malt 
liquors," evidence against the defendant that he sold a drink called 
"New7 Era Beer," which was not intoxicating, will not warrant a con- 
viction.93 On the other hand, to a charge of keeping a liquor nui- 
sance it is no defense that the accused did not know, and had no 
reason to believe, that "hop beer" kept by him contained such a pro- 
portion of alcohol as to render its sale illegal.94 But the fact that a 
given species of beer (as "Schenck beer") contains a certain percent- 
age of alcohol, or that a gallon of the beer contains as much alcohol 
as does a pint of whisky, is not conclusive upon the question whether 
or not the beer is intoxicating.98 
91 Such is the case of Rau v. People, 
63 N. Y. 277, wherein the court, while 
declining to take judicial notice that 
lager beer is intoxicating, held that ju- 
dicial notice might be taken of the fact 
that "such well-known beverages as 
whisky, brandy, gin, ale, and strong 
beer are intoxicating. " Such also is the 
case of People v. Hart, 24 How. Pr. 289, 
where it was held that the court cannot 
take judicial notice that lager beer be- 
longs to the prohibited character or 
class of liquors designated in a statute 
as "beer,"-a decision which was clear- 
ly erroneous. See, also, People v. 
Henschel, (Sup.) 12 N. Y, Supp. 46. 
82 Comm. v. Anthes, 12 Gray, 29; 
Comm. v. Bubser, 14 Gray, 83; Comm, 
v. Snow, 133 Mass. 575. 
83 Connolly v. City of Atlanta, 79 Ga. 
664, 4 S. E. Rep. 263. 
84Comm. v. O'Kean, (Mass.) 26 N. E. 
Rep. 97. 
96 Comm. v. Bios, 116 Mass. 56. 
22 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 18 
§ 18. Cider. 
It is agreed by the best authorities that cider is not properly 
included in either of the terms "spirituous" or "vinous" liquors as used 
in the statutes.96 On this point it is very pertinently remarked: "If 
the statute might include among the 'vinous ' fluids those which come 
from the juice of fruits which grow on vines and bushes, and are 
named wine, we do not think it should be construed so liberally as 
to apply the term 'vinous' to the juice of fruits which grow on trees. 
And in common parlance, cider and beer are never called vinous liq- 
uors or wine." 97 But if the statute mentions only "intoxicating" 
liquors, it is an open question whether cider is included, with the bal- 
ance of authority inclining to the position that it is so included after 
fermentation but not before. Thus, in Massachusetts it is said that 
there is no legal presumption that all cider is intoxicating liquor.93 
In Illinois, the statute mentioning spirituous, vinous, and malt liq- 
uors, and cider not belonging to either of these classes, it is held not 
to be intoxicating unless actually proved so.99 In New Hampshire, 
whether fermented cider is an intoxicating liquor is a question for the 
jury.100 In Iowa, where the statute enumerates alcohol, ale, wine, 
beer, etc., "and all intoxicating liquors whatever," it is held that 
cider is included in the phrase quoted.101 And so one of the federal 
courts, speaking of hard cider, says: "It is common knowledge that 
a fermented beverage which contains from five to ten per cent, of 
96 State v. Oliver, 26 W. Va. 422, 53 
Am. Rep. 79; Feldman v. Morrison, 1 
Ill. App. 460. There is, however, a de- 
cision in Pennsylvania to the effect that 
the question whether cider is a vinous 
or spirituous liquor is a question of 
fact for the jury. Comm. v. Reyburg, 
122 Pa. St. 299, 16 Atl. Rep. 351. In 
this case Green, J., observed; "We do 
not mean to intimate that the mere un- 
fermented juice of apples is in any cir- 
cumstances to be regarded as either a 
vinous or spirituous liquor, but we do 
not know, and cannot say, as a matter 
of law, that its character may not be so 
changed by fermentation as to bring it 
within the meaning of the term 'vinous.' 
Of course an admixture with spirits 
might render the compound 'spiritu- 
ous.' " 
97 Feldman v. Morrison, 1 Ill. App. 
460. 
98 Comm. v. Chappel, 116 Mass. 7. 
"Feldman v. Morrison, 1 Ill. App. 
460. 
199 State v. Biddle, 54 N. H. 379. 
191 State v. Hutchison, 72 Iowa, 561, 84 
N. W. Rep. 421. 
23 § 18 
[Ch. 1 
LAW OF INTOXICATING LIQUORS. 
alcohol, which is freely drunk by the glassful, will produce intoxica- 
tion. This is a fact of daily observation in communities where such 
beverages are sold." 102 
In the next place, if the statute, in its enumeration of the prohib- 
ited articles, or in its definition of the term " intoxicating,"mentions 
"fermented" liquor, it is clear that this will include hard cider but 
not sweet cider.103 Moreover, the courts will take judicial notice that 
when the term "hard cider" is used in court by a witness it means 
fermented cider-a species of fermented liquor-and is within the 
prohibition of the statute. "If the witnesses for the state had testi- 
fied that they drank cider,-not hard cider,-then, under the defi- 
nitions of Webster and some of the other lexicographers, we would not 
presume that the cider was fermented and intoxicating. Hard cider 
is cider excessively fermented, and therefore, presumptively, hard 
cider is not only a fermented liquor but intoxicating. Under the 
statute, all fermented liquor is presumed to be intoxicating, and if 
the defendant denies that the fermented liquor sold by him is intox- 
icating, it devolves upon him to remove the presumption of law by evi- 
dence."104 But again, the statute may mention "cider" by name, 
and then it becomes a question whether the prohibition applies to 
sweet or unfermented cider, or is to be restricted to the fermented 
article alone. On the authority of the lexicographers, and accord- 
ing to some of the decisions, the unfermented product is not prop- 
erly included in the term. In strictness, the juice of the apple 
before fermentation is simply apple-juice, and it is only by fermenta- 
tion that it becomes cider.105 But it must be conceded that this does 
not agree with the popular and ordinary use of the word. And the 
authorities generally rule that if the prohibition of the statute is 
directed to the sale of "cider," without any qualifying adjective, it 
applies to all cider, regardless of the stage of fermentation or its 
102Eureka Vinegar Co. v. Gazette 
Printing Co., 35 Fed. Rep. 570. 
103 People v. Foster, 64 Mich. 715, 31 
N. W. Rep. 596; Eureka Vinegar Co. v. 
Gazette Printing Co., 35 Fed. Rep. 570; 
Berger v. State, (Ark.) 11 S. W. Rep. 
765; State v. Schaefer, 44 Kans. 90, 24 
Pac. Rep. 92. 
104State v. Schaefer, 44 Kans. 90. 24 
Pac. Rep. 92; State v. McLafferty, 
(Kans.)27 Pac. Rep. 843. 
105 Eureka Vinegar Co. v. Gazette 
Printing Co., 35 Fed. Rep. 570. 
24 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 19 
intoxicating quality.108 In cases other than those enumerated, the 
doctrine is that the courts will not decide, as a matter of law, upon 
the character and properties of this beverage, but the question of its 
being included in the statute is one of fact for the jury.107 Hence, 
where it is shown that the defendant sold hard cider, an analysis of 
the cider by a chemist, to determine the amount of alcohol therein, 
is admissible in evidence, where all the circumstances connected 
with the analysis go to the jury to enable them to determine the 
weight of the evidence.108 But in a prosecution for selling a certain 
fluid called "peach cider," as an intoxicating beverage, it is error to 
charge, as a matter of law, that if it contains six per cent, of alco- 
hol it is intoxicating, within the meaning of the statute, as that is 
a question of fact for the jury under proper instructions.109 
§ 19. Tavern. 
The signification of this term has frequently been called in question 
under the statutes regulating the sale of intoxicating liquors, and 
particularly the license laws of the various states. In its original 
meaning, the word denoted a house of public entertainment, for the 
accommodation of travelers and transient guests, and especially for 
the sale of liquor by the dram to be drunk on the premises. Accord- 
ingly, in Kentucky, South Carolina, and Ohio, it is held that a license 
to keep a tavern includes the privilege of retailing intoxicating liquors 
to be consumed on the spot.110 "The term 'tavern-keeper,'" says the 
court in the last-named state, "has for many years past been under- 
stood to import a person licensed to retail liquor at a house kept by 
him for public entertainment. A license to keep a tavern, therefore, 
in its ordinary signification, was understood to be a license to retail 
106 State v. Spaulding, 61 Vt. 505, 17 
Atl. Rep. 844; Comm. v. Dean, 14 Gray, 
99; State v. McNamara, 69 Me. 133; 
State v. Roach, 75 Me. 123. Compare 
Guptill v. Richardson, 62 Me. 257. 
107 Comm. v. Reyburg, 122 Pa. St. 299, 
16 Atl. Rep. 351; State v. Biddle, 54 N. 
H. 379. 
108 State v. Schaefer, 44 Kans. 90, 24 
Pac. Rep. 92. 
109 City of Topeka v. Zufall, 40 Kans. 
47, 19 Pac. Rep. 359. 
110 Comm. v. Kamp, 14 B. Mon. 385; 
Braswell v. Comm., 5 Bush, 544; State 
v. Chamblyss, 1 Cheves, 220, 34 Am. 
Dec. 593; Hirn v. State, 1 Ohio St. 15, 
overruling Curtis v. State, 5 Ohio, 324. 
25 § 20 
[Ch. 1 
LAW OF INTOXICATING LIQUORS. 
liquors and keep a house of entertainment." 111 And it is probable 
that the word carries the same meaning, in its popular or its legal 
sense, in some other states. But elsewhere,-so far as the reported 
decisions show the usage,-it is considered that the selling of liquors 
is not an essential element of the business designated as tavern-keep- 
ing, and that a license to keep a tavern does not, exvi termini, import 
an authority to retail spirituous liquors.112 Now it has been held 
that the words "tavern" and'"tavern-keeper" are synonymous with 
"inn" and "inn-holder," as the latter terms were used at common 
law.113 And as the possession of a license to sell liquor does not make 
a person an inn-holder at common law, nor the want of it prevent 
him from being such,114 it follows that the authorities so holding 
must be classed with those which refuse to recognize the right to 
retail intoxicants as a necessary privilege of a tavern-keeper, thus 
creating a preponderance of authority on this side of the question in 
any jurisdiction where it is res Integra and not pre-determined by the 
popular usage. In New York, it is held that a restaurant or a lodg- 
ing-house is not an inn such that the proprietor can claim a license 
to sell liquor, under a law allowing licenses to inn-keepers. And the 
fact that a lodging-house sometimes furnishes meals will not consti- 
tute it an inn. But a house kept on the "European plan" is an 
inn.118 
§ 20. Tippling-House. 
This term, frequently used in the statutes relating to our principal 
subject-matter, may be defined, generally, as a place where intoxicat- 
ing drinks are sold in drams or small quantities, to be drunk on the 
premises, and where men resort for drinking purposes.116 Further 
than this, however, we cannot go without taking into account local 
111 Hirn v. State, 1 Ohio St. 15. 
112State v. Cloud, 6 Ala. 628; Page v. 
State, 11 Ala. 849; Savier v. Chipman, 
1 Mich. 116; Benson v. Moore, 15 Wend. 
260; City of St. Louis v. Siegrist, 46 Mo. 
593. 
113 Overseers, etc., v. Warner, 3 Hill, 
(N. Y.) 150; Bonner v. Wellborn, 7 Ga. 
296. 
114 Norcross v. Norcross, 53 Me. 163. 
115 Kelly v. Excise Commrs, 54 How. 
Pr. 327. 
116Emporia v. Volmer, 12 Kans. 622; 
Koop v. People, 47 Ill. 327; Woods v. 
Comm., 1 B. Mon. 74: Patten v. Cen- 
tralia, 47 Ill. 370; Moore v. State, 9 
Yerg. 353; Bishop, Stat. Crimes, § 1065. 
26 Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
§ 21 
variations in the meaning and legal construction of the term. Thus, 
in Kansas, it is an element of the act of keeping a tippling-house 
that the proprietor should not be licensed to retail liquors.117 But in 
Kentucky, the keeping of such house may be complete with or with- 
out such license.118 To "keep open" a tippling-house, however, it is 
necessary, as one of the ingredients of the offense, that liquor should 
be sold or drunk there.119 But it is not essential that the liquor 
should be spirituous liquor or wine; a place where beer is sold by the 
glass or drink may constitute a tippling-house within the meaning 
of the statute.120 It should be observed that the terms "tippling- 
house" and "disorderly house" are not synonymous or identical in 
meaning, nor is either necessarily included in the other.121 The term 
"liquor-shop," as used in a statute, may apply to a dwelling-house 
where liquor is sold, if that is the business of the occupant.122 
§ 21. Saloon. 
This term, according to the dictionaries, is used in its popular 
sense, of "a public room for specific uses; especially a bar-room or 
grop-shop; as, a drinking saloon, an eating saloon, a dancing sa- 
loon."123 But the courts are disposed to hold that the word has not 
acquired any technical legal signification which would restrict it to 
the designation of a house kept for retailing intoxicating liquor.124 
For example, a city ordinance requiring "saloon-keepers" to take 
out a license, and pay a substantial license tax, is not in violation 
of a clause in the constitution forbidding licenses for the sale of 
intoxicating liquors; because, a saloon not being necessarily a place 
for selling such liquors, such a license would in no way legalize the 
sale of any article forbidden by law.125 So in a case in Iowa, the 
court ruled that a place was a "saloon" where refreshments, not pro- 
hibited by law, were sold, as well as intoxicating beverages; quoting 
117 Emporia v. Volmer, 12 Kans. 622. 
118Woods v. Comm., 1 B. Mon. 74. 
119 Fant v. People, 45 Ill. 259. 
729 Koop v. People, 47 Ill. 327. 
121 Emporia v. Volmer, 12 Kans. 622. 
m "Wooster v. State, 6 Baxt. 533. 
123 Webster's Diet., s. v. 
124 State v. Mansker, 36 Tex. 364. 
125 Kitson v. Mayor of Ann Arbor, 26 
Mich. 325; Wolf v. Lansing, 53 Mich. 
367, 19 N. W. Rep. 38. 
27 § 23 
[Ch. 1 
LAW OF INTOXICATING LIQUORS. 
the definition of Webster, and adverting to the fact that "temperance 
saloon" is a common designation for places where non-intoxicating 
drinks and other refreshments are kept for sale.128 In Nebraska, 
however, it is said that the word in question.has acquired a restricted 
meaning, being usually applied only to places where liquors are sold. 
And therefore it is held that a licensed saloon-keeper means a person 
licensed to sell intoxicating liquors.127 
§ 22. Bar-Room. 
A place is a "bar-room" when it is used or occupied for the pur- 
pose of retailing intoxicating liquors to be drunk on the premises, its 
legal character being determined by the business for which it is oc- 
cupied.128 And the same meaning is to be attached to the equally 
familiar term "dram-shop." 
§ 23. Wholesaler and Retailer. 
The term "wholesale" implies selling in or by unbroken parcels, 
as by the barrel, pipe, cask, etc., while the term "retail" implies the 
cutting up or dividing of such pieces, or parcels, or casks, into smaller 
quantities, and selling to customers in such manner.129 As a gen- 
eral rule, however, the statutes have undertaken to regulate this dis- 
tinction, by prescribing that all sales of less than a given quantity 
should be considered sales at retail, and all sales above that quantity 
sales at wholesale. The quantity fixed upon as the dividing point 
has varied greatly, according to the policy of different legislatures at 
different times and places. In the early New England laws it was 
twenty-eight gallons. In the United States internal revenue laws, as 
regards malt liquors, it is five gallons.130 In Georgia it is one quart.131 
126 Clinton v. Grusendorf, 79 Iowa,117, 
45 N. W. Rep. 407. 
127 McDougall v. Giacomini, 13 Nebr. 
431, 14 R. W. Rep. 450. 
123 Ex parte Schneider, 11 Oreg. 288,8 
Pac. Rep. 289; Bieser v. State, 79 Ga. 
326, 4 S. E. Rep. 257. 
129 Gorsuth v. Butterfield, 2 Wis. 237; 
Webb v. Baird, 11 Lea, 667. 
130 United States v. Clare, 2 Fed. Rep. 
55. 
131 Bieser v. State. 79 Ga. 326, 4 S. E. 
Rep. 257. 
28 § 23 
Ch. 1] 
DEFINITIONS AND CONSTRUCTION OF TERMS. 
In reason, however, and upon a right use of language, the distinction 
between wholesale and retail (in the absence of statutory definitions) 
should be made to depend not solely upon the quantity sold, but also 
upon the purpose of the sale and the character of the purchaser. 
Thus the court in Tennessee rightly rules that a wholesale liquor 
dealer is one who sells to purchasers in packages or quantities for 
the purposes of trade or to be resold; while a retail dealer is one who 
sells to consumers for the purpose of consumption.132 Still, some of 
the courts have been willing to rest a distinction upon quantity alone. 
For instance, where a town was authorized to control the "retail" of 
spirituous liquors, and it passed an ordinance that no one should 
sell such liquors in a less quantity than twenty gallons, it was held 
that there was no power to pass such an ordinance, twenty gallons 
being too great a quantity to be embraced in the word "retail." 133 In 
this connection it is necessary to advert to the meaning of the word 
"dealer." "A dealer," it is said, "is not one who buys to keep, or 
makes to sell, but one who buys to sell again." Brewers of beer and 
manufacturers of spirituous liquors make to sell, and therefore are 
not dealers in the statutory meaning or legal sense of the word.134 
But within the meaning of the United States internal revenue laws, 
one is engaged in the business of a retail liquor dealer, if he has liq- 
uor on hand to be sold to any one who applies for it.136 
132 Webb v. Baird, 11 Lea, 667. 
133 Harris v. Livingston, 28 Ala. 577. 
134 Comm. v. Rhodes, 1 Pittsb. 499; 
Taylor v. Vincent, 12 Lea, 282, 47 Am. 
Rep. 338. 
135 United States v. Rennecke, 28 Fed. 
Rep. 847. See, also, United States v. 
Smith, 45 Fed. Rep. 115; United States 
v. Starnes, 37 Fed. Rep. 665; United 
States v. Allen, 38 Fed. Rep. 736. 
29 § 24 
LAW OF INTOXICATING LIQUORS. 
[Ch. 2 
CHAPTER II. 
GENERAL THEORY OF THE POLICE POWER. 
§ 24. Definitions of the Police Power. 
25. Scope of the Police Power. 
26. Examples of Application of the Power. 
27. Police Power Limited by the Federal Constitution. 
28. Laws Impairing the Obligation of Contracts. 
29. Regulation of Commerce. 
30. Rights of Citizens of Other States. 
31. Application of the Police Power to the Liquor Traffic. 
32. Police Power Distinguished from Eminent Domain. 
§ 24. Definitions of the Police Power. 
All statutes regulating or prohibiting the manufacture and sale of 
intoxicating liquors are enacted in virtue of what is termed the "police 
power" of the state. And in every case in which their validity has 
been sustained, as against objections to the legislative authority, 
under either the federal or state constitution, it has been on the 
ground that such enactments came rightly within the scope of this 
comprehensive and salutary power. It therefore becomes important, 
in this connection, to ascertain the general nature and limitations of 
the police power. It would be foreign to our present purpose, and a 
work of too great magnitude, to enter upon an exhaustive discussion 
of the constitutional relations of this function of government, but 
we shall briefly outline, in the present chapter, its foundation and 
scope. 
In its most general sense, police is the function of that branch 
of the administrative machinery of government which is charged 
with the preservation of public order and tranquillity, the promo- 
tion of the public health, safety, and morals, and the prevention, 
detection, and punishment of crimes.1 And the police power is the 
1 Black's Law Diet. s. v. "The police 
of a state, in a comprehensive sense, 
embraces its whole system of internal 
regulation, by which the state seeks not 
only to preserve the public order and to 
prevent offenses against the state, but 
30 Ch. 2] 
GENERAL THEORY OF THE POLICE POWER. 
§ 24 
power vested in a state to establish laws and ordinances for the reg- 
ulation and enforcement of its police, as just defined. It is, accord- 
ing to the supreme court of Massachusetts, "the power vested in the 
legislature by the constitution to make, ordain, and establish all 
manner of wholesome and reasonable laws, statutes, and ordinances, 
either with penalties or without, not repugnant to the constitution, 
as they shall judge to be for the good and welfare of the common- 
wealth and of the subjects of the same."2 In the language of 
another court, "it is true that the legislation which secures to all pro- 
tection in their rights, and the equal use and enjoyment of their 
property, embraces an almost infinite variety of subjects. What- 
ever affects the peace, good order, morals, and health of the com- 
munity comes within its scope; and every one must use and enjoy 
his property subject to the restrictions which such legislation imposes. 
What is termed the 'police power' of the state, which, from the lan- 
guage often used respecting it, one would suppose to be an undefined 
and irresponsible element in government, can only interfere with the 
conduct of individuals in their intercourse with each other, and in 
the use of their property, so far as may be required to secure these 
objects." 3 
But in truth, as remarked by the United States supreme court, 
while many attempts have been made to define the police power, the 
endeavor has never met with entire success. "It is always easier 
to determine whether a particular case comes within the general scope 
of the power, than to give an abstract definition of the power itself 
which will be in all respects accurate."4 It cannot be doubted, how- 
ever, that the origins of this power must be sought in the very pur- 
also to establish for the intercourse of 
citizen with citizen those rules of good 
manners and good neighborhood which 
are calculated to prevent a conflict of 
rights, and to insure to each the unin- 
terrupted enjoyment of his own, so far 
as is reasonably consistent with a like 
enjoyment of rights by others. " Coo- 
ley, Const. Lim. 572. 
2 Comm. v. Alger, 7 Cush. 53, 85. See 
further, City of New York v. Miln, 11 
Pet. 139; License Cases, 5 How. 631; 
Webber v. Virginia, 103 U. S. 348; Es- 
canaba Trans. Co. v. Chicago, 107 U. S. 
683, 2 Sup. Ct. Rep. 185; Barbier v. Con- 
nolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357; 
Beer Co. v. Mass., 97 U. S. 25; New Or- 
leans Gas-Light Co. v. Louisiana Light 
Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252. 
3Munn v. Illinois, 94 U. S. 145. 
4 Stone v. Mississippi, 101 U. S. 814, 
818. 
31 § 25 
LAW OF INTOXICATING LIQUORS. 
[Ch. 2 
pose and framework of organized society. It is fundamental and 
essential to government. It is a necessary and inherent attribute of 
sovereignty. It antedates all laws, and may be described as the 
assumption on which constitutions rest. For the state-whether we 
regard it as an association of individuals or as a moral organism- 
must have the right of self-protection, and the power to preserve its 
own existence in safety and prosperity, else it could neither fulfill the 
law of its being nor discharge its duties to the individual. And to 
this end it is necessarily invested with power to enact such measures 
as are adapted to secure its own authority and peace, and preserve 
its constituent members in safety, health, and morality. Theories 
of the state, according as they tend to enlarge or restrict the legiti- 
mate sphere of its functions and activities, will create theories as to 
the proper limitations of the police power. But its existence, in a 
measure proportioned to the rights and duties it is to guard, is im- 
plied in the recognition of the state as a factor in law and civilization. 
"It is a power,"as has been well said, "essential to self-preservation, 
and exists, necessarily, in every organized community. It is, in- 
deed, the law of nature, and is possessed by man in his individual 
capacity."6 For these reasons it appears that the nature and au- 
thority of the police power are best described by the maxim, solus 
populi supremo, lex, while the principle, sic utere tuo ut alienum non 
Icedas, furnishes, in most cases, a convenient rule for its application. 
§ 25. Scope of the Police Power. 
There is a certain broad and general sense in which the scope ot 
the police power may be made to include all legislation and to embrace 
almost every function of civil government. In this signification, the 
authority of the state to create educational and charitable institu- 
tions, to provide for the establishment and control of public highways, 
turnpikes, canals, wharves, ferries, and telegraph lines, to direct the 
reclamation of swamp lands, etc., may be referred to the power in 
question.6 But there is also a more particular and restricted sense, 
6 License Cases, 5 How. 588, Mc- 
Lean, J. 
6 New Orleans Gas-Light Co. v. Louis- 
iana Light Co., 115 U. S. 650, 661, 6 Sup. 
Ct. Rep. 252. 
32 Ch. 2] 
§ 26 
GENERAL THEORY OF THE POLICE POWER. 
in which the-term is almost always used when it enters into the dis- 
cussion of constitutional questions, and especially in connection with 
our present subject. And in this meaning, its scope is limited to the 
protection and preservation of three elements in the general welfare, 
viz., the public safety, the public health, and the public morals.7 
Thus, in an important case before the supreme federal tribunal, it 
was said: "Whatever differences of opinion may exist as to the 
extent and boundaries of 'the police power, and however difficult it 
may be to render a satisfactory definition of it, there seems to be no 
doubt that it does extend to the protection of the lives, health, and 
property of the citizens, and to the preservation of good order and 
the public morals. The legislature cannot, by any contract, divest 
itself of the power to provide for these objects. They belong emphat- 
ically to that class of objects which demand the application of the 
maxim salus populi suprema lex; and they are to be attained and pro- 
vided for by such appropriate means as the legislative discretion may 
devise. That discretion can no more be bargained away than the 
power itself."8 But here it must be remarked that it is not possible 
by any logical deduction from the adjudged cases or the nature of 
the subject, to stretch the proper limits of the police power so as to 
make it include matters which are merely connected with the con- 
venience of the public. There are certain decisions which might, at 
first blush, appear to lend countenance to such a proposition, but an 
attentive consideration will show that they either used the term in 
its broad and general sense, or had reference to matters which con- 
cerned the safety of the people, rather than their convenience.9 
§ 26. Examples of Application of the Power. 
In order to more fully define and more clearly illustrate the nature 
and scope of the police power, it will be proper here to adduce some 
7 New Orleans Gas-Light Co. v. Louis- 
iana Light Co., 115 U. S. 650, 672, 6 Sup. 
Ct. Rep. 252; Gibbons v. Ogden, 9 
Wheat. 203; Black, Const. Prohib. §§ 
62, 63. 
8 Beer Co. v. Massachusetts, 97 U. S. 
25, 33, Bradley, J.; Boyd v. Alabama, 
94 U. 8. 645; Thorpe v. Rutland & B, 
R. Co., 27 Vt. 140. 
9 Black, Const. Prohib. § 64; State v. 
Noyes, 47 Me. 189, 212. 
INTOX.LIQ. 3 
33 § 26 
LAW OF INTOXICATING LIQUORS. 
[Ch. 2 
examples of its application to subjects admittedly within its sphere. 
And first in relation to the public safety. It is on this ground that 
the courts have sustained the validity of laws regulating the grade 
of railways and prescribing how and upon what grade their tracks 
shall cross each other;10 of laws regulating the speed of trains at 
highway and other crossings;11 of regulations requiring railroads to 
ring the bell or blow the whistle of their locomotives immediately 
before passing grade crossings or other dangerous places;12 of 
statutes or ordinances establishing fire-limits in cities;13 of laws to 
prohibit the keeping of gunpowder in unsafe quantities in cities and 
villages;14 and of many other similar enactments.16 Next as to the 
protection and preservation of the public health. In this connec- 
tion we may cite the case of Taunton v. Taylor,16 in which it was 
held that a statute giving to a board of health the power to forbid 
the exercise within the limits of a city of any trade which was a 
nuisance or hurtful to the inhabitants, or dangerous to the health of 
the community, or attended by noisome or injurious odors, was valid 
and constitutional. So it is fully within the power of the legislature 
to regulate the business of slaughtering cattle in populous towns, by 
limiting its prosecution to particular localities or quarters therein.17 
And on the same principle, the laws passed in many of the states, to 
prohibit or regulate the manufacture and sale of "oleomargarine," 
or other imitations of butter or fraudulent substitutes for it, were 
universally held valid and constitutional, as legitimate exertions of 
the police power oi the state.18 Finally, although the state may not 
10 Fitchburg R. Co. v. Grand Junction 
R. Co., 1 Allen, 552; Pittsburgh, etc., 
R. Co. v. S. W. Penn. R. Co., 77Pa. St. 
173: Cooley, Const. Lira. 5^0. 
11 Rockford R. Co. v. Hillmer, 72 Hl. 
235; Horn v. Chicago, etc., R. Co., 38 
Wis. 463. 
12 Galena & C. R. Co. v. Loomis, 13 
Ill. 548. 
13 Wadleigh v. Gilman, 12 Me. 403, 28 
Am. Dec. 188; Brady v. Northwestern 
Ins. Co., 11 Mich. 425. 
14 Foote v. Fire Department, 5 Hill, 
(N. Y.) 99. 
18See People v. Hawley, 3 Mich. 330. 
16116 Mass. 254. 
17 Ex parte Schrader, 33 Cal. 279; 
Slaughter-House Cases, 16 Wall. 36; 
Crescent City Slaughter House Co. v. 
New Orleans, 33 La. An. 934; Butchers' 
Union Co. v. Crescent City Co., Ill U. 
S. 746. 4 Sup. Ct. Rep. 652. 
18 Powell v. Pennsylvania, 127 U. S. 
678, 8 Sup. Ct. Rep. 992, 1257; Powell v. 
Comm., 114 Pa. St. 265, 7 Atl. Rep. 913; 
In re Brosnahan, 18 Fed. Rep. 62; State 
v. Addington, 77 Mo. 110; Northwestern 
Manuf. Co. v. Wayne Circuit Judge, 58 
34 Ch. 2] 
§ 27 
GENERAL THEORY OF THE POLICE POWER. 
assume to be the guardian of morals, it cannot be doubted that it has 
the power to enact measures calculated for the repression of such 
forms of vice as threaten its welfare by generating disease, pauper- 
ism, and crime. This is signally true of the unrestricted traffic in 
intoxicating liquors, and of the offenses of maintaining brothels, pub- 
lishing or selling obscene books or prints, keeping gaming tables, 
and the like.19 To this head also we must refer the laws for the sup- 
pression of lotteries. Thus, in a leading case it was declared that 
lotteries were undeniably proper subjects for the exercise of the 
police power; that a legislature could not, by chartering a lottery 
company, defeat the will of the people, expressed authoritatively, in 
relation to the further continuance of such business in their midst; 
that no legislature could bargain away the public morals; that the 
right to suppress lotteries was governmental, to be exercised at all 
times by those in power, at their discretion; and that, therefore, any 
one who accepted a lottery charter did so with the implied under- 
standing that the people, in their sovereign capacity, and through 
their properly constituted agencies, might resume it at any time when 
the public good should require, whether it had been paid for or not.29 
§ 27. Police Power Limited by the Federal Constitution. 
In the nice adjustment of rights and powers between the states 
and the Union, questions frequently arise which require a determi- 
nation of the relative scope of the police power of a state and the 
authority vested in congress. In such cases, the integrity of each 
must be preserved, without encroachment upon the other. On the 
one hand, the jurisdiction secured to the general government by the 
constitution sets a limit to the police power of the states. "The sub- 
jects upon which the state may act are almost infinite; yet in its 
regulations with respect to all of them there is this necessary limita- 
Mich. 381, 25 N. W. Rep. 372; State v. 
Newton, (N. J. Sup.) 14 Atl. Rep. 604; 
State v. Marshall, 64 N. H. 549, 15 Atl. 
Rep. 210; People v. Arensberg, 105 N. 
Y. 123, 11 N. E. Rep. 277; People v. 
Marx, 99 N. Y. 377, 2 N. E. Rep. 29; 
Butler v. Chambers, 36 Minn. 69, 30 N. 
W. Rep. 308; McAllister v. State, (Md.) 
20 Atl. Rep. 143; Pierce v. State, 63 Md. 
596; Palmer v. State, 39 Ohio St. 236. 
19 Cooley, Const. Lim. 596. 
20 Stone v. Mississippi, 101 U. S. 814. 
35 § 28 
LAW OF INTOXICATING LIQUORS. 
[Ch. 2 
tion, that the state does not thereby encroach upon the free exer- 
cise of the power vested in congress by the constitution."21 But yet, 
by justly estimating and defining both powers, any real conflict may 
be avoided. "If the police power extends only to a just regulation 
of rights with a view to the due protection and enjoyment of all, and 
does not deprive any one of that which is justly and properly his own, 
it is obvious that its possession by the state, and its exercise for the 
regulation of the property and actions of its citizens, cannot well 
constitute an invasion of national jurisdiction, or afford a basis for 
an appeal to the protection of the national authorities."22 Thus the 
United States supreme court has expressly declared that neither the 
fourteenth amendment-broad and comprehensive as it is-nor any 
other of the amendments to the constitution, was designed to inter- 
fere with the police power of the states.23 And the same tribunal, 
admitting that a state has the same undeniable and unlimited juris- 
diction over all persons and things within its territorial limits as 
any foreign nation, where that jurisdiction is not surrendered or 
restrained by the federal constitution, concedes that "all those pow- 
ers which relate to merely municipal legislation, or what may, per- 
haps, more properly be called internal police, are not thus surren- 
dered or restrained, and consequently, in relation to these, the 
authority of a state is complete, unqualified, and exclusive."24 
§ 28. Laws Impairing the Obligation of Contracts. 
In several instances, police regulations have been assailed in 
respect to their validity, on the ground that they were repugnant to 
that clause of the federal constitution which prohibits the states 
from passing "laws impairing the obligation of contracts." But it 
has always been held that the police power, as an inalienable attri- 
bute of sovereignty, can never be curtailed or diminished; that it 
is present, by implication, in every act of legislation; and that no 
21 Western Union Tel. Co. v. Pendle- 
ton, 122 U. S. 347, 359, 7 Sup. Ct. Rep. 
1126; New Orleans Gas-Light Co. v. 
Louisiana Light Co., 115 U. S. 650, 661, 
6 Sup. Ct. Rep. 252. 
22 Cooley, Const. Lim. 574. 
23 Barbier v. Connolly, 113 U. b. 27, 5 
Sup. Ct. Bep. 357. 
24 City of 2iew York v. Miln, 11 Pet. 
102, 139. 
36 Ch. 21 
GENERAL THEORY OF THE POLICE POWER. 
§ 28 
legislature can either surrender or sell it, or destroy or hamper the 
power of its successors to make such enactments as they may deem 
proper in matters of public police. From this it follows that if an 
irrevocable grant of franchises or any contract made by the legis- 
lature with an individual or corporation specifies or implies a relin- 
quishment of the police power of the state, it is to that extent 
invalid, the legislature having exceeded the authority delegated to it 
by the people. In other words, the exercise by the state, at any 
time, of its right to legislate for the protection and good govern- 
ment of the community can never be construed into a violation of 
the prohibition in question, notwithstanding its effect may be to 
repeal existing charters, or otherwise invade the terms of legislative 
engagements.25 One of the most important cases in which these 
doctrines have been maintained was that of the Beer Co. v. Massa- 
chusetts.-6 The question at issue was whether the charter of a pri- 
vate corporation, authorizing it to engage in the manufacture of malt 
liquors, and, as incidental thereto, to dispose of the product, consti- 
tuted a contract protected against subsequent legislation prohibiting 
the manufacture of liquors within the state. The beer company 
claimed the right, under its charter, to manufacture and sell beer 
without limit as to time, and without reference to any exigencies in 
the health or morals of the community requiring such manufacture 
to cease. It was decided that while the company acquired, by its 
charter, the capacity, as a corporation, to engage in the manufact- 
ure of malt liquors, its business was at all times subject to the 
same governmental control as like business conducted by individ- 
uals; and that the legislature could not divest itself of the power, 
by such appropriate means, applicable alike to corporations and 
individuals, as its discretion might devise, to protect the lives, health 
and property of the people, or to preserve good order and the public 
morals. The prohibitory enactment of which the beer company 
25 Stone v. Mississippi, 101 U. S. 814; 
Boyd v. Alabama, 94 U. S. 645; Butch- 
ers' Union Co. v. Crescent City Co., 
Ill U. S. 746. 4 Sup. Ct. Rep. 652; State 
v. Paul, 5 R. I. 185; People v. Hawley, 
3 Mich. 330; Reynolds v. Geary, 26 
Conn. 179; Santo v. State, 2 Iowa, 165; 
Metropolitan Board of Excise v. Barrie, 
84 N. Y. 657; Cooley, Const. Lim. 574; 
Black, Const. Prohib. § 61. 
26 97 U. S. 25. „ 
37 § 29 
[Ch. 2 
LAW OF INTOXICATING LIQUORS. 
complained was held to be a mere police regulation, which the state 
could establish even had there been no reservation of authority to 
amend or repeal its charter. 
§ 29. Regulation of Commerce. 
The "commerce clause" of the federal constitution has been fre- 
quently before the courts for construction and interpretation. In 
connection with the police power of the states, the question of its 
application has been important chiefly in relation to the state laws 
on the subjects of navigation, quarantine, immigration, and the like,27 
to the question of taxing business or products from without the state,28 
and to the laws regulating the manufacture, transportation, and sale 
of intoxicants. For our present purpose it is sufficient to point out 
that the power of congress to regulate foreign and interstate commerce 
and the power of a state to enact police regulations are co-ordinate 
powers. Each must be preserved in its integrity, but neither must 
encroach upon the other. The state laws cannot operate upon an 
article of foreign commerce while it continues such, but neither can 
this exemption follow the article into the general mass of property 
in the state.29 The constitutionality of the state excise laws, in their 
% See Chy Lung v. Freeman, 92 U. S. 
275. 
28 See Walling v. Michigan, 116 U. S. 
446, 6 Sup. Ct. Rep. 454. 
29 In the License Cases, 5 How. 504, 
592, McLean, J., said: "The police pow- 
er of a state and the foreign commercial 
power of congress must stand together. 
Neither of them can be so exercised as 
materially to affect the other. The 
sources and objects of these powers are 
exclusive, distinct, and independent, 
and are essential to both governments. 
The one operates upon our foreign in- 
tercourse, the other upon the internal 
concerns of a state. The former ceases 
when the foreign product becomes 
commingled with the other property in 
the state. At this point the local law 
attaches, and regulates it as it does other 
property. The state cannot, with a 
view to encourage its local manufact- 
ures, prohibit the use of foreign arti- 
cles, or impose such a regulation as 
shall in effect be a prohibition. But it 
may tax such property as it taxes other 
and similar articles in the state, either 
specifically^ or in the form of a license 
to sell. A license may be required to 
sell foreign articles when those of a do- 
mestic manufacture are sold without 
one. And if the foreign article be in- 
jurious to the health or morals of the 
community, a state may, in the exercise 
of that great and conservative police 
power which lies at the foundation of 
its prosperity, prohibit the sale of it. 
No one doubts this in relation to in- 
fected goods or licentious publications. 
Such a regulation must be made in 
38 Ch. 2] 
GENERAL THEORY OF THE POLICE POWER. 
§ 30 
relation to importations of liquor from abroad and to the transporta- 
tion of intoxicants from one state into another for purposes of sale 
and consumption in the latter jurisdiction, is a subject which we 
reserve for full discussion in a later chapter of this work. 
§ 30. Rights of Citizens of Other States. 
There is another constitutional provision which operates, in some 
cases, as a limitation upon the police power of the states, namely, 
that "the citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states,"30 together with the cog- 
nate prohibition, in the fourteenth amendment, against the making 
or enforcement of "any law which shall abridge the privileges or 
immunities of citizens of the United States." We may illustrate the 
necessary adjustment of the police power to these guaranties of the 
rights of citizenship by a reference to the decisions which hold that 
a state cannot impose, for the privilege of doing business within its 
limits, a heavier license tax upon non-residents than is required of 
its own citizens.31 So, also, a state tax which necessarily discrim- 
inates in favor of the products and manufactures of the taxing state 
and against the introduction and sale of goods produced or manu- 
factured in other states, is within the constitutional inhibition and 
void.32 But on the other hand, a state law requiring sellers of intox- 
good faith, and have for its sole object 
the preservation of the health or morals 
of society. If a foreign spirit should be 
imported containing deleterious ingre- 
dients, fatal to the health of those who 
use it, its sale may be prohibited. 
When, in the appropriate exercise of 
these federal and state powers, contin- 
gently and incidentally their lines of 
action run into each other, if the state 
power be necessary to the preservation 
of the morals, the health, or safety of 
the community, it must be maintained. 
But this exigency is not to be founded 
on any notions of commercial policy, 
or sustained by a course of reasoning 
about that which may be supposed to 
affect, in some degree, the public wel- 
fare. The import must be of such a 
character as to produce, by its admis- 
sion or use, a great physical or moral 
evil. Any diminution of the revenue 
arising from this exercise of local power 
would be more than repaid by the ben- 
eficial results. By preserving, as far as 
possible, the health, the safety, and the 
moral energies of society, its prosperity 
is advanced. " And see Brown v. Mary- 
land, 12 Wheat. 419. 
30 Const. U. S., art. 4, § 2. 
31 Ward v. Maryland, 12 Wall. 418; 
State v. North, 27 Mo. 464; Crow v. 
State, 14 Mo. 237; Gould v. Atlanta, 55 
Ga. 678. 
32 Walling v. Michigan, 116 U. S. 446, 
6 Sup. Ct. Rep. 454; Webber v. Vir- 
39 § 31 
LAW' OF INTOXICATING LIQUORS. 
[Ch. 2 
icating liquor to take out a license is not invalid, as in conflict with 
the constitutional provisions above recited, although it excludes non- 
residents from the privilege of obtaining a license, by limiting it to 
certain classes of its own citizens, or by requiring a certain term of 
residence within the state as one of the necessary qualifications of 
the applicant; for the purpose and effect of such a law is to erect a 
safeguard against the unlawful selling of liquors, and not to discrim- 
inate against citizens of other states.33 
§ 31. Application of the Police Power to the Liquor 
Traffic. 
That the regulation of the manufacture and sale of intoxicating 
liquors is a proper subject for the exercise of the police power, is a 
proposition which has never for a moment been doubted. On all the 
grounds which are recognized as most safely and surely bringing a 
matter within the scope of this power, the production and selling of 
intoxicants is included within the sphere of its legitimate operations. 
For an unregulated and unrestricted traffic in liquor, it is admitted, 
threatens the public safety by generating vice and crime, imperils the 
peace and order of the community by the demoralization of its vic- 
tims, and poisons the fountains of the public prosperity by its con- 
tributions of pauperism and squalor. "It is not necessary," says 
Mr. Justice Grier, "for the sake of justifying the state legislation 
now under consideration, to array the appalling statistics of misery, 
pauperism, and crime, which have their origin in the use or abuse 
of ardent spirits. The police power, which is exclusively in the states, 
is alone competent to the correction of these great evils, and all meas- 
ures of restraint or prohibition necessary to effect the purpose are 
within the scope of that authority."34 In fact, as remarked by another 
learned judge, " the power is signally exercised in legislation designed 
to diminish and prevent the demoralization and impoverishment, and 
ginia, 103 U. S. 344; Welton v. Missouri, 
91 U. S. 275. 
33 Austin v. State, 10 Mo. 591: Kohn 
v. Melcher, 29 Fed. Rep. 433; Trageser 
v. Gray, (Md.) 20 Atl. Rep. 905; Welsh 
v. State, 126 Ind. 71, 25 N. E. Rep. 883; 
Mette v. McGuckin, 18 Nebr. 323, 25 N. 
W. Rep. 338. 
34 License Cases, 5 How. 504. 
40 Ch. 2] 
§ 32 
GENERAL THEORY OF THE POLICE POWER. 
the numberless vices and miseries, which are the sure concomitants 
and consequences of a free traffic in intoxicating liquors, by restrain- 
ing or prohibiting it."35 
§ 32. Police Power Distinguished from Eminent Domain. 
There is a broad distinction between the taking of private property 
for a public use, under the power of eminent domain, and the inci- 
dental injury or inconvenience, or damage or deterioration, which 
may result to property or business on account of the exertion of the 
police power of the state, when its purpose is the promotion of the 
public welfare. In the former case, compensation must be made to 
the owner; in the latter, no such obligation arises.36 All rights of 
property are subject to the paramount authority of the state to pro- 
hibit any use which may be deemed detrimental to the public health, 
safety, or morals. "Nor does the prohibition of such noxious use of 
property, a prohibition imposed because such use would be injurious 
to the public, although it may diminish the profits of the owner, 
make it an appropriation to a public use, so far as to entitle the 
owner to compensation. If the owner of a vacant lot in the midst 
of a city could erect thereon a great wooden building and cover it 
with shingles, he might obtain a larger profit of his land than if 
obliged to build of stone or brick with a slated roof. If the owner of 
a warehouse in a cluster of other buildings could store quantities of 
gunpowder in it for himself and others, he might be saved the great 
expense of transportation. If a landlord could let his building for 
a smallpox hospital, or a slaughter-house, he might obtain an 
increased rent. But he is restrained; not because the public have 
occasion to make the like use, or to make any use, of the property, or 
to take any benefit or profit to themselves from it, but because it 
would be a noxious use, contrary to the maxim sicutere tuo ut alien- 
tim non Icedas. It is not an appropriation of the property to a public 
36 State v. Fitzpatrick, 16 R. I. 54, 11 
Atl. Rep. 767. 
36Moore v. Indianapolis, 120 Ind. 483, 
22 N. E. Rep. 424; Fertilizing Co. v. 
Hyde Park, 97 U. S. 659; Beer Co. v. 
Massachusetts, 97 U. S. 25; Mugler v. 
Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 
273; Bancroft v. Cambridge, 122 Mass. 
438. 
41 § 32 
LAW OF INTOXICATING LIQUORS. 
[Ch. 2 
use, but the restraint of an injurious private use by the owner, and 
is therefore not within the principle of property taken under the right 
of eminent domain. The distinction, we think, is manifest in prin- 
ciple, although the facts and circumstances of different cases are so 
various that it is often difficult to decide whether a particular exercise 
of legislation is properly attributable to the one or the other of these 
two acknowledged powers."37 At the same time, in the interests of 
the individual, the exercise of the police power, in this respect, is to 
be closely watched and confined to its proper limits, lest it overstep 
the bounds of necessary protection to the public and bring about an 
unlawful confiscation of property. "The moment the legislature 
passes beyond mere regulation, and attempts to deprive the individ- 
ual of his property, or of some substantial interest therein, under 
pretense of regulation, then the act becomes one of eminent domain, 
and is subject to the obligations and limitations which attend an 
exercise of that power."88 Thus, when, in the exercise of the police 
power, private property, or private or vested rights, must be taken 
for public use, in order to carry out, or to allow to be carried out, 
improvements or regulations, or to carry on business or occupations, 
or schemes of public works, looking to the amelioration and benefit 
of the public health or morals, such private property or private rights 
of property must be entitled to the protection of the federal and state 
constitutions, declaring that the same shall not be taken for public 
use without just compensation.39 
37 Comm. v. Alger, 7 Cush. 53, 86, per 
Shaw, C. J. And see Philadelphia v. 
Scott, 81 Pa. St. 80. 
38 Lewis, Em. Dom. § 6. 
39 New Orleans Water-Works Co. v. 
St. Tammany Water-Works Co., 14 Fed. 
Rep. 194; affirmed, 120 U. S. 64, 7 Sup. 
Ct. Rep. 405. 
42 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 33 
CHAPTER III, 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 33. Restrictive Liquor Laws are Referable to Police Power. 
34. Power of States to Control Liquor Traffic. 
35. Powers of Congress in this Regard. 
36. Power of States Limited by Federal Constitution. 
37. Power to Prohibit Manufacture and Sale. 
38. Property in Liquors. 
39. Power to Regulate Sale of Liquor. 
40. Prohibition of Sale in Particular Localities. 
41. Prohibition of Sale on Particular Days. 
42. Prohibition of Sale to Particular Classes of Persons. 
43. Power to Define Intoxicating Liquors. 
44. Discrimination against Products of Other States. 
45. Constitutionality of Local Option Laws. 
46. Constitutionality of License Laws. 
47. Same; Requiring Assent of Neighbors. 
48. Same; Discrimination against Non-Residents. 
49. Same; Restriction to Particular Classes. 
50. Same; Regulation of Sales by Licensees. 
51. Same; Providing for Revocation of License. 
52. Constitutionality of Search and Seizure Laws. 
53. Power to Confiscate Liquor Illegally Kept. 
54. Power to Authorize Abatement of Liquor Nuisances. 
55. Taxation of Liquor Traffic. 
56. Constitutionality of Civil Damage Laws. 
57. Laws Prohibiting Recovery for Liquor Sold. 
58. Power of State to Punish Illicit Traffic Criminally. 
59. Power to Exact Penalties and Forfeitures. 
60. Laws Relating to Rules of Evidence. 
61. Laws Relating to Criminal Pleading. 
62. Constitutional Right of Trial by Jury. 
63. Measure of Punishment to be Inflicted. 
64. Title and Subject-Matter of Laws. 
65. Constitutional Provisions as to Enactment of Laws. 
§ 33. Restrictive Liquor Laws are Referable to Police 
Power. 
It has been already stated that the laws of the various states 
designed to suppress, or to regulate, the manufacture and sale of intox- 
43 § 34 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
icating liquors within their borders are enacted in virtue of their 
police power; and that whenever the constitutionality of such statutes 
has been asserted by the courts, it has been in view of the fact that 
the traffic in intoxicants is a subject clearly and certainly within the 
scope of this power.1 "If it be once granted," says the supreme court 
of Vermont, "that the use of intoxicating liquors as a drink is worse 
than useless, and intemperance a legitimate consequence of such use, 
and that intemperance is an evil, injurious to health and sound 
morals and productive of pauperism and crime, it seems to us that 
a law designed to prevent such consequences must clearly fall within 
the class of laws denominated police regulations." 2 "It is a bold asser- 
tion," declares the court in New York, "at this day, that there is any- 
thing in the state or United States constitutions conflicting with or 
setting bounds upon the legislative discretion or action, in directing 
how, when, and where a trade shall be conducted in articles intimately 
connected with the public morals, or public safety, or public prosper- 
ity, or, indeed, to prohibit and suppress such traffic altogether, if 
deemed essential to effect those great ends of good government." 8 
§ 34. Power of States to Control Liquor Traffic. 
The general principle that the several states, subject to the para- 
mount authority of the federal constitution and to any limitations 
to be found in their own constitutions, have full power to enact any 
and all laws for the suppression of intemperance and for regulating 
the traffic in liquors, is no longer open to question. "If the pub- 
lic safety or the public morals require the discontinuance of any 
manufacture or traffic, the hand of the legislature cannot be stayed 
from providing for its discontinuance by any incidental inconven- 
ience which individuals or corporations may suffer. All rights are 
held subject to the police power of the state."4 Restraints upon 
the traffic in spirituous liquors are not like such as restrict the 
1 Supra, § 24. 
2 Lincoln v. Smith, 27 Vt. 328, 337. 
And see State v. Gurney, 37 Me. 156, 58 
Am. Dec. 782. 
8 Metropolitan Board of Excise v. 
Barrie, 34 N. Y. 657, 666. 
4 Beer Co. v. Massachusetts, 97 U. S. 
25. 
44 Ch. 3] 
§ 35 
CONSTITUTIONALITY OF LIQUOR LAWS. 
ordinary avocations of life which advance human happiness, or 
trade and commerce that produce neither immorality, suffering, nor 
want. The business is, on principle, within the police power of the 
state, and restrictions may rightfully be imposed upon it which 
might be obnoxious, as an illegal restraint of trade, if applied to 
other pursuits.6 It would be easy to multiply authorities in sup- 
port of the positions here assumed. But the question can seldom 
arise, if ever, at the present day, in this elementary form. And we 
shall therefore be content to take up the various kinds of laws relat- 
ing to this subject-matter, in their order, and examine the objections 
which have been made to their constitutionality. 
§ 35. Powers of Congress in this Regard. 
The regulation of the traffic in intoxicants being a matter pecul- 
iarly within the police power of the individual states, their action 
upon this subject, if not in contravention of the federal constitution, 
is beyond either the control or interference of the general govern- 
ment. Congress and the federal courts may indeed take proper 
measures to secure the citizens of the United States in the enjoyment 
of their rights. But the right to sell intoxicating liquors is not one 
of the privileges and immunities of citizens of the United States, 
which, by the fourteenth amendment, the states were forbidden to 
abridge; and when a state authorizes, or refuses to authorize, the 
sale of liquor on such terms as it thinks proper, the courts of the 
United States have nothing to do with the exercise of its police power 
in this regard.6 Congress, however, has undoubtedly the power to 
pass a law imposiiig a license duty on those who are engaged in a 
business which is a subject of police regulation by the states.7 And 
in the exercise of the powers conferred upon it by the constitution, 
the same body may rightfully enact laws, in the nature of police reg- 
ulations, to have effect within the domains, or upon the persons, 
6Schwuchow v. Chicago, 68 Ill. 444. 
6 In re Hoover, 30 Fed. Rep. 51; Ed- 
gar v. State, 45 Ark. 356; Lemon v. 
Wagner, 68 Iowa, 660, 27 N. W. Rep. 
814. 
7 United States v. Riley, 5 Blatchf. 
204. 
45 § 36 
LAW OF INTOXICATING LIQUORS 
[Ch. 3 
subject to its proper jurisdiction. Thus, as congress has power to 
regulate commerce "with the Indian tribes," it is held that it has 
also power to regulate commerce between the Indian tribes and the 
members thereof, and hence it may prohibit the traffic in spirituous 
liquors between such tribes or members, within as well as without 
the limits of a state.8 So also congress has power to enact that in- 
toxicating liquors shall not be manufactured or sold as a beverage 
in Alaska, and to authorize the President of the United States to 
make such regulations as may be necessary to carry out the provis- 
ions of the law.9 So again, the provision of the fifth amendment to 
the federal constitution that "no person shall ... be deprived 
of life, liberty, or property without due process of law," does not 
prohibit congress from exercising police power in those places where 
it has exclusive jurisdiction, by local option laws.10 
§ 36. Power of States Limited by Federal Constitution. 
The validity of every act of state legislation is subject to the con- 
dition that it must not be repugnant to the constitution of the United 
States. And this is just as true of laws enacted in virtue of the 
police power as of any others. Great and salutary as this power is, 
there is nothing in its nature or objects which enables it to override 
the supreme law of the land. This will fully appear in our subse- 
quent discussion of the several varieties of liquor laws. But at pres- 
ent it is pertinent to adduce some illustrations of the possible con- 
flict of such laws with the authority of the constitution, and of the 
manner in which such antagonism may be avoided. Under that 
instrument, no state may pass any law impairing the obligation of 
contracts. And it is settled law that the charter of a private corpo- 
ration, containing a grant of powers and privileges, is a contract 
within the meaning of this clause. Yet corporations are not exempt 
from the police control of the state. The power to enact such regu- 
8 United States v. Shaw-Mux, 2 Sawy. 
364. 
9 United States v. Nelson, 29 Fed. 
Rep. 202. (Dist. Ct. Alaska.) This case 
was carried by writ of error to the cir- 
cuit court for the District of Oregon, 
and there affirmed by Deady, J. Nel- 
son v. United States, 30 Fed. Rep. 112. 
10Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746. 
46 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 36 
lations is an inalienable power; no legislature can grant or bargain 
it away; it is not passed away by any contract of the state; a con- 
tract having the apparent effect to divest succeeding legislatures of 
this power would be, to that extent, invalid. And it follows that if 
any corporation is affected in respect to its powers, franchises, or 
property, by a police regulation afterwards enacted,-e. g., a prohib- 
itory liquor law,-no contract obligation is impaired, but the law is 
valid.11 
Again, no state may "levy any imposts or duties on imports or 
exports." But the word "imports," as here used, does not refer to 
articles imported from one state into another, but only to articles 
imported from abroad. Hence a uniform tax imposed by a state 
upon all sales made within it, whether they be made by a citizen 
of it or by a citizen of another state, and whether the goods sold 
are the produce of the state enacting the law or of another state, is 
valid.12 
The fourteenth amendment forbids the states to make or enforce 
any law which shall "abridge the privileges or immunities of citizens 
of the United States." But the right to sell intoxicating liquors is 
not one of the privileges or immunities here contemplated.13 But on 
the other hand, any state legislation which in effect discriminates 
against the products of other states, though its design may be the 
furtherance of an object properly within the police power, is an in- 
fringement of the exclusive power of congress to regulate interstate 
commerce and therefore invalid.14 So a statute which forbids common 
carriers to bring any intoxicating liquors into the state from any other 
state or territory, without first procuring a certificate from the county 
auditor that the consignee is authorized to sell such liquors in the 
county, is an unconstitutional attempt to regulate commerce.15 But 
11 Beer Co. v. Massachusetts, 97 U. S. 
25, s. c. 115 Mass. 153; Stone v. Missis- 
sippi, 101 U. S. 814; Boyd v. Alabama, 
94 U. S. 645; Black, Const. Prohib. §§ 
61-65. 
12 Hinson v. Lott, 8 Wall. 148. 
13 In re Hoover, 30 Fed. Rep. 51; Bar- 
bier v. Connolly, 113 U. S. 27, 5 Sup. 
Ct. Rep. 357. 
14 Welton v. Missouri, 91 U. S. 275; 
Walling v. Michigan, 116 U. S. 446, 
6 Sup. Ct. Rep. 454; State v. Brennan, 
(S. Dak.) 50 N. W. Rep. 625. The sub- 
ject of liquor laws in connection with 
the regulation of commerce is fully dis- 
cussed in §§ 66-79, infra. 
15 Bowman v. Railway Co., 125 U. S. 
465, 8 Sup. Ct. Rep. 869. 
47 § 37 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
not so an act which makes it unlawful to solicit or take orders for 
liquors in the state to be delivered without the state, if the sales- 
man has reason to believe the liquors are intended for illegal sale.16 
§ 37. Power to Prohibit Manufacture and. Sale. 
It is within the power of a state to absolutely prohibit the manu- 
facture and sale, within its borders, of intoxicating liquors, either by 
statute or constitutional enactment, and such prohibition is a lawful 
exercise of its police power and is not open to objection on constitu- 
tional grounds.17 Such a law, in so far as it prohibits the sale of 
liquors in existence at the time of its passage, is not an ex post facto 
law, since, if it lessens the value of such liquors, such civil conse- 
quence does not make it retroact criminally in such sense as to bring 
it within the definition of an ex post facto law.18 Neither can it be 
considered as impairing the obligation of contracts, though it may 
affect corporations or others possessing the right, by legislative grant, 
at the time of its enactment, to manufacture or sell such liquors.19 
And although it may deprive persons of the right to pursue a busi- 
ness previously lawful, and may have the effect of diminishing the 
value of property owned by them and specially adapted to the contin- 
16 Lang v. Lynch, 38 Fed. Rep. 489. 
17 See fully, infra, 81-87. And see 
Mugler v. Kansas, 123 U. S. 623, 8 Sup. 
Ct. Rep. 273; Kidd v. Pearson, 128 U. 
8. 1, 9 Sup. Ct. Rep. 6; Foster v. Kan- 
sas, 112 U. S. 201, 5 Sup. Ct. Rep. 8, 97; 
Beer Co. v. Massachusetts, 97 U. S. 25; 
License Cases, 5 How. 504; Bartemeyer 
v. Iowa, 18 Wall. 129; State v. Bradley, 
26 Fed. Rep. 289; In re Brosnahan, 18 
Fed. Rep. 62; Tanner v. Alliance, 29 
Fed. Rep. 196; Weil v. Calhoun, 25 Fed. 
Rep. 865; Kessinger v. Hinkhouse, 27 
Fed. Rep. 883; State v. Wheeler, 25 
Conn. 290; State v. Fitzpatrick, 16 R. I. 
54, 11 Atl. Rep. 757; People v. Quant, 2 
Park. (N. Y.) 410; Metropolitan Board 
of Excise v. Barrie, 34 N. Y. 657; Sav- 
age v. Comm., 84 Ya. 582, 5 S. E. Rep. 
565; Stickrod v. Comm., 86 Ky. 285, 5 
S. W. Rep. 580; State v. Mugler, 29 
Kans. 252,44 Am. Rep. 634; Prohibitory 
Amendment Cases, 24 Kans. 700; Jones 
v. People, 14 Ill. 196; Santo v. State, 2 
Iowa. 165, 63 Am. Dec. 487; Drake v. Jor- 
dan, 73 Iowa, 707, 36 N. W. Rep. 653; 
Drake v. Kaiser, 73 Iowa, 703, 36 N. W. 
Rep. 652; Kaufman v. Dostal, 73 Iowa, 
691,36N. W. Rep. 643; McLane v. Leicht, 
69 Iowa, 4Q1, 29 N. W. Rep. 327; Craig 
v. Florange. 71 Iowa, 761, 32 N. W. Rep. 
356; People v. Hawley, 3 Mich. 330; 
People v. Gallagher, 4 Mich. 244; Moore 
v. Indianapolis, 120 Ind. 483, 22 N. E. 
Rep. 424. 
18 State v. Paul, 5 R. I. 185; State v. 
Keeran, Id. 497. 
19 Beer Co. v. Massachusetts, 97 U. S. 
25; State v. Paul, 5 R. I. 185. 
48 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 38 
uance of the business, it does not, for that reason, amount to a depri- 
vation of their property or liberty without due process of law, within 
the meaning of the constitution.20 Neither does it violate the privi- 
leges or immunities secured to citizens of the United States by the 
fourteenth amendment.21 Nor, if confined to persons and property 
fully within the jurisdiction of the state, is it invalid as a regulation 
of foreign or interstate commerce.22 
§ 38. Property in Liquors. 
Property in an article is the right to have and use it subject to 
law. The right to sell it is not an essential ingredient that may not 
be separated from the ownership. Hence a law regulating or pro- 
hibiting the sale of any article deemed injurious to the public, as 
intoxicating liquor, does not take away any vested right of property.23 
"It has been said," observes the supreme court of Vermont, "that 
intoxicating liquors are property, and that a law prohibiting their sale 
as a drink is the exercise of a despotic power, calling for a constitu- 
tional interference with the rights of property, and necessarily im- 
pairing and even destroying those rights, which, it is claimed, is 
against natural right and justice and beyond the pale of constitutional 
authority. It is not to be assumed by us that intoxicating liquors, 
under the act, are not to be regarded as property, at least in a cer- 
tain sense. The act does not declare that they are not property, 
and there is no language which should receive a construction to forbid 
their being property. Though there is a prohibition, not to sell 
them, yet that cannot prevent a man from having a property in them 
20 Mugler v. Kansas, 123 U. S. 623, 8 
Sup. Ct. Rep. 273; Kidd v. Pearson, 128 
U. S. 1, 9 Sup. Ct. Rep. 6; Moore v. In- 
dianapolis, 120 Ind. 483, 22 N. E. Rep. 
424: Menken v. City of Atlanta, 78 Ga. 
668, 2 8. E. Rep. 559; Kaufman v. Dos- 
tal, 73 Iowa, 691, 36 N. W. Rep. 693; 
Drake v. Kaiser, 73 Iowa, 703, 36 N. W. 
Rep. 652; Tanner v. Alliance, 29 Fed. 
Rep. 196. Compare Wynehamer v. Peo- 
ple, 13 N. Y. 378. 
21Bartemeyer v. Iowa, 18 Wall. 129, 
133. 
22Kidd v. Pearson, 128 U. S. 1, 9 Sup. 
Ct. Rep. 6; Pearson v. International 
Distillery, 72 Iowa, 348,34 N. W. Rep. 1. 
23 State v. Allmond, 2 Houst. (Del.) 
612; State v. Wheeler, 25 Conn. 290; 
Oviatt v. Pond, 29 Conn. 479; State v. 
Paul, 5 R. I. 185; Lincoln v. Smith, 27 
Vt. 328; Preston v. Drew, 33 Me. 558, 
54 Am. Dec. 639. 
INTOX.LIQ. 4 
49 § 39 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
for his own use, without any intention to sell them; and they may be 
transported through the state, where there is no intention to violate 
the law; and indeed the act itself, authorizing the town agents to 
sell them for certain specified purposes, thereby admits them to be 
property for such purposes."24 But it is justly held that a provision 
in such a law that no person, without a state license, shall "keep in 
his possession, for another, spirituous liquors," is unconstitutional 
and void. "The keeping of liquors in his possession by a person, 
whether for himself or for another, unless he does so for the illegal 
sale of it, or for some other improper purpose, can by no possibility 
injure or affect the health, morals, or safety of the public, and there- 
fore the statute prohibiting such keeping in possession is not a legit- 
imate exertion of the police power. It is an abridgment of the privi- 
leges and immunities of the citizen without any legal justification, 
and therefore void."26 
§39. Power to Regulate Sale of Liquor. 
If the power of the state to prohibit the manufacture and sale of 
intoxicating liquors be conceded,-and it is no longer open to ques- 
tion,-it will follow inevitably that the power of the state to regulate 
the sale of such articles, and to impose conditions and burdens and 
responsibilities upon those who desire to engage in the traffic, is 
practically unlimited. This principle, which is recognized by the 
authorities as a necessary truth,26 will furnish a test for determining 
24 Lincoln v. Smith. 27 Vt. 328, 338. 
25 State v. Gilman, 33 W. Va. 146, 10 
S. E. Rep. 283. 
26 State v. Ludington, 33 Wis. 107. 
We extract the following from the val- 
uable opinion of Chief Justice Dixon in 
this case: "Assuming the general pow- 
er of the legislature over the subject, to 
the extent of prohibiting entirely the 
traffic in intoxicating liquors or drinks, 
necessarily involves, as it seems to us, 
the admission of the utmost limit of 
legislative discretion in prescribing the 
conditions of sale, and establishing the 
liabilities, both civil and criminal, of 
persons engaged in the trade, in case 
the legislature sees fit in any manner or 
under any circumstances of restriction 
or responsibility to authorize such sale 
or trade. The law being prospective 
only in its operation, the legislative 
power to prohibit all sales must carry 
with it, as it seems to us, that of de- 
claring the precise terms and conditions 
upon which any particular sale may 
take place This would seem to be so 
by the familiar principle upon which 
the greater is always said to include the 
less. Possessed of the power of abso- 
lute prohibition under the constitution, 
50 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 39 
the validity of many of the laws which have been enacted by way of 
restriction upon the liquor traffic, and will show the necessity of 
pointing to a very clear infraction of some constitutional guaranty, 
in order successfully to controvert the validity of such a statute. 
And we may here remark that if the state has power to prohibit the 
sale of liquor, it has also power to prohibit the giving of liquor by 
one person to another. The evil to be avoided is the communication 
from one to another of an article which may be injurious to the 
recipient, or which, by its general use, may demoralize or harm the 
it seems to follow that any relaxation 
from a plenary exercise of such power, 
or qualified or conditional enactment 
by the legislature by which license to 
sell may be obtained in the way and 
subject to the liabilities imposed by the 
act, cannot be an encroachment of leg- 
islative authority, unless indeed the leg- 
islature should transcend some settled 
principle of fundamental law, respect- 
ing the trial or mode of prosecution or 
punishment of the party charged with 
an infraction of the provisions of the 
act, or with having incurred some lia- 
bility under it. Acting in obedience to 
those fundamental principles, in ac- 
cordance with which the guilt or liabil- 
ity of the party charged must first be 
ascertained and established, and the 
judgment of the law rendered against 
him, it seems competent for the legis- 
lature to attach such consequences, civil 
or criminal, to the mere act of sale, as 
it pleases, even when such sale is made 
in pursuance of an authority of the leg- 
islature, qualifiedly given for that pur- 
pose. Empowered to prohibit entirely, 
the legislature may license sub modo, or 
conditionally only. It may affect the 
licensee with such restraints, condi- 
tions, and responsibilities as it pleases, 
growing out of the act of sale. It may 
visit him with such consequences as it 
sees fit, proceeding from the same act. 
It may couple the license with condi- 
tions so oppressive, burdensome, and 
unjust that no citizen can afford to apply 
for or accept the privilege and engage in 
the business, and thus the act, though 
nominally otherwise, may amount to a 
prohibitory law. These conclusions 
seem unavoidably to flow from the po- 
sition, admitted or not denied, that the 
legislature possesses the unqualified 
power of prohibition. The legislature 
may not take away the right of trial by 
jury, or of proceeding by due process of 
law to ascertain the fact of violation or 
of liability incurred. It may not require 
the accused to plead guilty, to confess 
judgment, or to give evidence against 
himself. Neither may it create any ar- 
bitrary or violent presumption of guilt 
upon facts equally or more consistent 
with innocence. It may not change the 
rules of evidence, or the burden of 
proof established according to the 
principles of the common law, and se- 
cured and made perpetual by the con- 
stitution, nor destroy vested rights, nor 
punish one man for the delinquencies 
or misconduct of another, nor, without 
his consent, make him answerable in 
damages for the injurious consequences 
of the acts of another, in which he had 
no participation, or with which he was 
wholly disconnected. These and other 
like things the legislature may not do; 
but with respect to the act of sale, over 
which the power of legislation is con- 
ceded to be unlimited, and with respect 
to the responsibility which shall attach 
to the doing of that act or the condi- 
tions under which it may be done, the 
51 § 40 
[Ch. 3 
LAW OF INTOXICATING LIQUORS. 
whole community. It is not attempted to restrain a man's private 
indulgence in drink. But that is because law deals not with the 
isolated individual, but with men in their relations to each other. 
Upon the delivery of a noxious substance from one to another, a 
relation is established of which the law may take cognizance. And 
it is perfectly immaterial whether the transfer be by sale, barter, or 
gift. The evil is not in the receipt of money for the article furnished, 
but in the furnishing of it. And so the authorities hold.27 It is 
probable that such a law would not be construed to prevent a man 
from giving liquor to a guest in his own house, purely in the way of 
hospitality. But that is a question of interpretation, not of the power 
of the legislature. 
§ 40. Prohibition of Sale in Particular Localities. 
A statute prohibiting the sale of liquor in certain specified localities 
is not, for the reason that its application is limited and not general, 
an unconstitutional law.28 On this principle, the laws, found in 
many of the states, forbidding such sales within a certain distance of 
any church, school, university, or other similar institution, are sus- 
tained as legitimate exertions of the police power.29 So also an act 
prohibiting or restricting the sale of intoxicants, which applies only 
to one or more specified counties, is not invalid, provided it applies 
equally to all persons within the territorial limits described, so as to 
way seems open for the legislature to 
enact whatsoever it pleases. As already 
more than once observed, this conclu- 
sion seems clearly to result from the 
unrestricted and arbitrary nature of the 
discretion vested in the legislature in 
the exercise of what is termed the police 
power of the state, which is said to be 
a right to regulate all such matters 
found in the first principles of good 
government and self-protection. The 
legislature may say to all citizens and 
persons within the state that they shall 
not sell, give away, or traffic in it at all 
as a beverage; or it may say that they 
may do so, being responsible for all the 
injurious consequences of their acts, 
which consequences are pointed out 
and defined by previous law. " 
27 Powers v. Comm., (Ky.) 13 S. W-. 
Rep. 450; Altenburg v. Comm., 126 Pa. 
St. 602, 17 Atl. Rep. 799. 
28 Howell v. State, 71 Ga. 224. 
29 State v. Rauscher, 1 Lea, 96; State 
v. Muse. 4 Dev. & B. Law, 319; Tram- 
mell v. Bradley, 37 Ark. 374; Dorman v. 
State, 34 Ala. 216; Whitney v. Town- 
ship Board, 71 Mich. 234, 39 N. W. Rep. 
40; State v. Stovall, 103 N. Car. 416, 8 S. 
E. Rep. 900. 
52 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 41 
secure uniformity of operation notwithstanding its local character.30 
So a law prohibiting the sale of liquor within two miles of the cor- 
porate limits of a municipality is not open to the objection of not 
being uniform in its operation.31 Nor is there any constitutional 
objection to a law which prohibits the sale of liquor outside of towns 
and cities, and permits its sale under license within towns and cities; 
for the legislature may prescribe different police regulations in differ- 
ent localities, provided such laws apply equally to all persons within 
the territorial limits affected.32 
§ 41. Prohibition of Sale on Particular Days. 
It is competent for the state, as a matter of police regulation, to 
prohibit, under penalties, the sale of liquor by retail on Sundays, as 
well as on election days or other public days.83 Such a law, in respect 
to the prohibition of selling on Sunday, is in no sense an attempt to 
enforce the observance of that day as a religious institution, and 
hence is not repugnant to the provisions in the federal and state con- 
stitutions forbidding the establishment of any religion.34 It is a mat- 
ter of notorious fact that ordinary business is habitually suspended 
on that day, that masses of men are then idle and would be at lib- 
erty to frequent the saloon, and that a great portion of the people 
are in the practice of assembling for religious exercises. For these 
reasons it is specially important to preserve the good order and tran- 
quillity of the community on that day, and to that end it is specially 
necessary to suspend the sale of intoxicants. It is clear, therefore, 
that the prohibion in question is no more than a legitimate police reg- 
ulation. 
30 McCuen v. State, 19 Ark. 630; Creek- 
more v. Comm., (Ky.) 12 S. W. Rep. 628; 
State v. Joyner, 81 N. Car. 534. 
31 State v. Schroeder, 51 Iowa, 197, 1 
N. W. Rep. 431. 
82 State v. Berlin, 21 S. Car. 292, 53 
Am. Rep. 677; United States v. Ronan, 
33 Fed. Rep. 117. 
83 Thomasson v. State, 15 Ind. 449. 
34 State v. Bott, 31 La. Ann. 663, 33 
Am. Rep. 224. 
53 § 43 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
§ 42. Prohibition of Sale to Particular Classes of Persons. 
Wherever the law allows the sale of liquor under license or other 
restrictions, there are statutes forbidding such sale to certain classes 
of persons who are peculiarly liable to be injured or demoralized by 
indulgence in alcoholic beverages, such as minors, persons already 
intoxicated, and habitual drunkards. The constitutionality of such 
laws has seldom been questioned, and indeed their validity could 
scarcely be assailed with any show of reason. What authority we 
have is in affirmance of the legislative power to ordain such regula- 
tions.30 And it is held that a law against permitting a minor to 
enter upon and remain in a retail liquor dealer's place of business is 
valid. It is enacted for the purpose of shielding youth from tempta- 
tion, and the state has power to enact and enforce such a law even 
in disregard of the parents' wishes, when its object and tendency 
is to protect the child.86 So, also, the act of congress prohibiting 
the sale of ardent spirits to Indians, based upon its power to regu- 
late commerce with the Indian tribes, is valid and constitutional.87 
§ 43. Power to Define Intoxicating Liquors. 
In Rhode Island, the courts have sustained the constitutionality 
of a statute restraining the sale of intoxicating liquors, and defining 
the term to include ale, wine, rum, etc., or any liquors containing 
more than two per cent., by weight, of alcohol.88 It has occasion- 
ally been argued that the legislature has no power to declare that 
to be intoxicating which is not so; that the use of any beverage 
which is not capable of producing intoxication can have no possible 
influence upon the public health, safety, or morals; and that, there- 
fore, if the legislature should attempt to include any such innocent 
article in its prohibition, the statute would be to that extent in- 
85 Allen v. State, 52 Ind. 486; Gold- 
sticker v. Ford, 62 Tex. 385; Altenburg 
v. Comm., 126 Pa. St. 602, 17 Atl. Rep. 
799. 
86 Goldsticker v. Ford, 62 Tex. 385. 
87 United States v. Holliday, 3 Wall. 
407. 
88 State v. Guinness, 16 R. I. 401, 16 
Atl. Rep. 910; State v. Gravelin, 16 R. 
I. 407, 16 Atl. Rep. 914. 
54 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 44 
valid. It is probable that the courts would accede to this reason- 
ing in a very strong case,-a case where there could be no possi- 
ble doubt as to the innocent nature of the liquor in question. But 
they are disposed to leave much to the legislative judgment and 
discretion, and act with caution in taking judicial notice of the prop- 
erties of such articles. And therefore such a case is not very likely 
to arise in practice. 
§ 44. Discrimination against Products of Other States. 
In several of the states, at various times, laws have been enacted 
prohibiting the sale of wine made from fruits grown outside the par- 
ticular state, but permitting the sale of that made from fruits grown 
within the state. And in some few cases provisions of this kind 
have been held valid.39 But the great preponderance of authority, 
based upon repeated rulings of the supreme court of the United 
States, is to the effect that such a discrimination against the prod- 
ucts of other states is not defensible as a police regulation, but is 
unconstitutional and void as an encroachment upon the exclusive 
power of congress to regulate foreign and interstate commerce.40 
Such a law "falls within the rule, so often announced by the supreme 
court, that legislation forbidding the sale of a commodity if of foreign 
production, but permitting it if of home production, cannot be sus- 
tained as a police regulation, but is clearly an attempt to restrict 
interstate commerce, and to discriminate against the citizens and 
products of other states." 41 Where a proviso of this sort occurs in 
the midst of a general restrictive or prohibitory law, the courts will 
endeavor, if possible, to separate the invalid portion and leave the 
remainder of the statute in force. This might produce two effects. 
39 State v. Stacker, 58 Iowa, 496,12 N. 
W. Rep. 483; McGuire v. State, 42 Ohio 
St. 530. 
40 Tiernan v. Rinker, 102 U. S. 123; 
Welton v. Missouri, 91 U. S. 275; Gray 
v. Baltimore, 100 U. S. 434; Hinson v. 
Lott, 8 Wall. 148; Walling v. Michigan, 
116 U. S. 446, 6 Sup. Ct. Rep. 454; Weil 
v. Calhoun, 25 Fed. Rep. 865; Kohn v. 
Melcher, 29 Fed. Rep. 433; State v. 
Nash, 97 N. Car. 514, 2 S. E. Rep. 645; 
Powell v. State, 69 Ala. 10; McCreary v. 
State. 73 Ala. 480; State v. Marsh, 37 
Ark. 356; State v. Deschamp, 53 Ark. 
490, 14 S. W, Rep. 653. 
41 Kohn v. Melcher, 29 Fed. Rep. 433. 
55 § 44 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
Either the result might be to subject domestic wines to the prohibi- 
tion equally with all others, or else to remove any restriction upon 
the sale of foreign wines except such as may apply equally to those 
of home production. Which of these consequences will follow the 
excision of the unconstitutional part, must depend upon the language 
of the particular statute.42 
Very similar to the foregoing is the case of a tax imposed by a 
state statute upon an occupation, which necessarily discriminates 
against the introduction and sale of the products of another state, or 
against the citizens of another state. In the cases in which such 
statutes have been declared invalid it is laid down that the police 
power of the state to regulate the sale of intoxicating liquors, and 
preserve the public health and morals, does not warrant the enact- 
ment of laws infringing positive provisions of the federal constitution; 
and that a statute which imposes a tax upon persons who, not resid, 
ing or having their principal place of business within the state, engage 
there in the business of selling or soliciting the sale of intoxicating 
liquors to be shipped into the state from places without it, but does 
not impose a similar tax upon persons selling or soliciting the sale 
of such as are manufactured in the state, is a regulation in restraint 
of commerce, and repugnant to the constitution of the United States.43 
And it makes no difference that the tax is imposed in the form of 
requiring a license fee. Where the business or occupation consists 
in the sale of goods, the license tax required for its pursuit is in 
effect a tax upon the goods. If such a tax is within the power of 
the state to levy, it matters not whether it be raised directly from 
the goods, or indirectly from them through the license to the dealer; 
but if such tax conflicts with any power constitutionally vested in 
congress, it will not be any the less invalid because enforced through 
the form of a license.44 
42 See State v. Nash, 97 N. Car. 514, 2 
S. E. Rep. 645; State v. Marsh, 87 Ark. 
356; Weil v. Calhoun, 25 Fed. Rep. 865; 
Ex parte Kinnebrew, 35 Fed. Rep. 52. 
48 Walling v. Michigan, 116 U. S. 446, 
6 Sup. Ct. Rep. 454; Welton v. Missouri, 
91 U. S. 275; Tiernan v. Rinker, 102 U. 
8. 123. 
44 Welton v. Missouri, 91 U. 8. 275. 
56 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 45 
§ 45. Constitutionality of Local Option Laws. 
A "local option" law is a law framed for the purpose of prohibit- 
ing, or severely restricting, the sale of intoxicating liquors, under 
penalties, and containing a provision that the several counties, town- 
ships, or other divisions of the state, may hold elections to determine 
by popular vote whether they desire the law to be in force in their 
limits, and with a further provision that in each case where such 
election results in favor of the adoption of the law, it shall take effect 
in the district so voting, but that each district rejecting it shall con- 
tinue to be governed, in this respect, by the existing laws. Local 
option laws have been tried in many of the states, at various times, 
and their validity has been often questioned. In a comparatively 
small number of decisions (some of which, moreover, have been over- 
ruled) they have been declared unconstitutional, on grounds to be 
hereafter examined.45 But the overwhelming preponderance of 
authority is to the effect that such a statute, if it is a complete enact- 
ment in itself, requiring nothing further to give it validity, and 
depending upon the popular vote for nothing but a determination of 
the territorial limits of its operation, is a valid and constitutional 
exertion of the legislative power.46 The ground of objection most 
frequently urged against such laws is that they amount to an unlaw- 
ful delegation of legislative power to the people. This, however, is 
based upon a misconception of the legal effect of the popular vote. 
45 Parker v. Comm., 6 Pa. St. 507, 47 
Am. Dec. 480; Maize v. State, 4 Ind. 342; 
Santo v. State, 2 Iowa, 165, 63 Am. Dec. 
487; State v. Weir, 33 Iowa, 134, 11 Am. 
Rep. 115; Morgan v. State, 81 Ala. 72, 1 
South. Rep. 472; Ex parte Wall, 48 Cal. 
279, 17 Am. Rep. 425; Turner v. Saxon, 
(Wash. T.) 20 Pac. Rep. 685. 
46 Weil v. Calhoun, 25 Fed. Rep. 865; 
State v. Parker, 26 Vt. 357; Comm. v. 
Bennett, 108 Mass. 27, 11 Am. Rep. 304; 
Comm. v. Dean, 110 Mass. 357; State v. 
Wilcox, 42 Conn. 364, 19 Am. Rep. 536; 
Gloversville v. Howell, 70 N. Y. 287; 
Locke's Appeal, 72 Pa. St. 491, 13 Am. 
Rep. 716; State v. Common Pleas of 
Morris Co., 36 N. J. Law, 72, 13 Am. 
Rep. 422; State v. Circuit Court, 50 N. 
J. Law, 585,15 Atl. Rep. 272; Hammond 
v. Haines, 25 Md. 541, 90 Am. Dec. 77; 
Fell v. State, 42 Md. 71, 20 Am. Rep. 83; 
Slymer v. State, 62 Md. 240; Savage v. 
Comm., 84 Va. 619, 5 S. E. Rep. 565; 
Caldwell v. Barrett, 73 Ga. 604; Schul- 
herr v. Bordeaux, 64 Miss. 59, 8 South. 
Rep. 201; Lemon v. Peyton, 64 Miss. 
161, 8 South. Rep. 235; Holley v. State, 
14 Tex. App. 505; Exparte Lynn, 19 Tex. 
App. 293; Anderson v. Comm., 13 Bush, 
485; Comm. v. Weller, 14 Bush, 218, 29 
57 § 45 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
If the law is complete in itself, it is the legislature which enacts it, 
not the people, although the people are permitted to determine the 
contingency on which its going into effect in a particular locality may 
depend. To make this more plain, we add extracts from a few of 
the best considered decisions on this point. The court in New Jersey, 
speaking of a local option law, observes: "It left to the popular vote 
to determine, not whether it should be lawful to sell without license, 
but whether the contingency should arise under which license might 
be granted. It was not submitted to the voters of Chatham to say 
whether there should be a majority vote in favor of license before 
license could be granted; the law as framed declares that there shall 
be such majority vote. ... It is the law which makes the 
majority vote necessary, and not the voice of the people. Whether 
the vote is aye or no, the law is at all times the same, and requires 
the majority vote as a condition precedent to the granting of 
license."47 So in Missouri, it is said: "It was the law that author- 
ized the vote to be taken, and when taken, the law, and not the vote, 
declared the result that should follow the vote. The vote was the 
means provided to ascertain the will of the people, not as to the 
passage of the law, but whether intoxicating liquor should be 
sold in their midst. If the majority voted against the sale, the law, 
and not the vote, declared that it should not be sold. The vote 
sprang from the law, and not the law from the vote. By their vote 
the electors declared no consequences, prescribed no penalties, and 
exercised no legislative function. The law declared the consequences, 
and whatever they may be, they are exclusively the result of the 
legislative will. "48 To the same effect is the reasoning of the supreme 
court of Pennsylvania, where it says: "Then what did the vote 
decide? Clearly not that the act should be a law or should not be, 
for the law already existed. Indeed it was not delegated to the peo- 
Am. Rep. 407; Boyd v. Bryant, 35 Ark. 
69, 37 Am. Rep. 6; Gordon v. State, 46 
Ohio St. 607, 23 N. E. Rep. 63; State v. 
Pond, 93 Mo. 606, 6 S. W. Rep. 469; Feek 
v. Bloomingdale, 82 Mich. 393, 47 N. W. 
Rep. 37; Territory v. O'Connor, 5 Dak. 
397, 41 N. W. Rep. 746; State v. Cooke, 
24 Minn. 247, 31 Am. Rep. 344; Cooley, 
Const. Lim. 125. 
47 State v. Common Pleas of Morris 
Co., 36 N. J. Law, 72. 
43 State v. Pond, 93 Mo. 606, 6 S. W. 
Rep. 469. 
58 Ch. 3] 
§ 45 
CONSTITUTIONALITY OF LIQUOR LAWS. 
pie to decide anything. They simply declared their views or wishes, 
and when they did so, it was the Jiat of the law, not their vote, 
which commanded licenses to be issued or not to be issued. . . . 
The true distinction, I conceive, is this: The legislature cannot dele- 
gate its power to make a law; but it can make a law to delegate a 
power to determine some fact or state of things upon which the law 
makes, or intends to make, its own action depend."49 ' But the law, 
to escape the charge of unconstitutionally delegating legislative 
power, must be a complete and perfect enactment as it leaves the 
hands of the legislature. It must not depend upon the expression 
of the popular will in respect either to its validity or its terms. 
Certainly the law-making body would have no power to authorize the 
people of a district to decide what kind of a liquor law they will have. 
Nothing can be referred to the voters but the question whether they 
will adopt the particular law which the legislature enacts.60 
The validity of local option laws has also been questioned on the 
ground that they may result in a diversity of laws in different parts 
of the same state, whereas uniformity should be the rule, and that 
they are local or special in their nature. But it is held that such a 
law, if the same question is submitted in the same way to all the 
counties or other divisions of the state, is not obnoxious to a consti- 
tutional provision that "no local or special law shall be passed when 
a general law can be made applicable." 61 Nor is it in violation of a 
constitutional requirement that all laws of a general nature shall 
have a uniform operation throughout the state. "Uniformity in its 
operation is not destroyed because the electors in one or more town- 
ships may not see fit to avail themselves of its provisions." 62 Neither 
is such a law in contravention of a constitutional provision that "the 
legislature shall not pass private, local, or special laws regulating the 
internal affairs of towns and counties." For this inhibition is not 
intended to secure uniformity in the exercise of delegated police pow- 
ers, but to forbid laws vesting in one town or county a power of local 
49Locke's Appeal, 72 Pa. St. 491, 13 
Am. Rep. 716. 
60 See Rice v. Foster, 4 Harr. (Del.) 
479; Geebrick v. State, 5 Iowa, 491. 
61 State v. Pond, 93 Mo. 606, 6 S. W. 
Rep. 469; Ex parte Swann, 96 Mo. 44, 9 
S. W. Rep. 10. 
62 Gordon v. State, 46 Ohio St. 607, 23 
N. E. Rep. 63. 
59 § 45 
[Ch. 3 
LAW OF INTOXICATING LIQUORS. 
government not granted to another.63 And in the absence of any 
such constitutional restraint, it is said that there is no great under- 
lying principle of natural right and justice which forbids the legis- 
lature to enact laws for a particular locality dififerent from those ap- 
plicable to other portions of the state, or which prohibits it from sus- 
pending the operation of general laws as to any particular locality; 
hence a local option law cannot be declared invalid on any such 
ground; on the contrary, it is in furtherance of the right of local self- 
government.64 
The courts have further held that local option laws cannot be ad- 
judged unconstitutional on the ground of their taking private prop- 
erty for public use, or depriving persons of their property without 
due process of law, or impairing the obligation of contracts or 
destroying vested rights.66 As local option is really a species of pro- 
hibition, applied to the localities adopting it, this question is involved 
in the question of the validity of general prohibitory laws, and must 
be regarded as settled by the decisions sustaining such enactments. 
And although the local option law may be adopted in some parts of 
the state and rejected in others, with the result that dififerent pen- 
alties for the same act are in force in different districts, yet, if the 
act applies alike to all persons within a locality where it is adopted, 
it cannot be said to "deny to any person the equal protection of the 
laws."66 Neither does such a law abridge the privileges and immu- 
nities of the citizen, as the sale of liquor is not a right of that class.67 
Nor is it repugnant to or inconsistent with the laws of the United 
States, although it may prevent a person from reaping the benefit 
of a license issued under the internal revenue acts; because such 
license is merely a receipt for taxes, implying nothing except that 
the licensee, having paid such taxes, shall be subject to no penalty 
63 State v. Circuit Court, 50 N. J. 
Law. 585, 15 Atl. Rep. 272. 
64Feek v. Bloomingdale, 82 Mich. 393, 
47 N. W. Rep. 37. 
Ex parte Lynn, 19 Tex. App. 293; 
Steele v. State, Id. 425; Ex parte Ken- 
nedy, 23 Tex. App. 77, 3 S. W. Rep. 
114; Savage v. Comm., 84 Va. 619, 5 S. 
E. Rep. 565; McKinney v. Salem, 77 
Ind. 213; Menken v. City of Atlanta, 78 
Ga. 668, 2 S. E. Rep. 559. 
66 Ex parte Swann, 96 Mo. 44, 9 S. W. 
Rep. 10. 
67 Ex parte Burnside, 86 Ky. 423, 6 S. 
W. Rep. 276. 
60 Ch. 3] 
§ 46 
CONSTITUTIONALITY OF LIQUOR LAWS. 
under federal law.68 It is also ruled that there is nothing in the con- 
stitution or form of government of a territory, or in the laws of the 
United States, to prevent it from enacting a local option law in the 
exercise of its police power.69 Finally, if the legislature has power 
to pass a local option law, it has also power to provide that any dis- 
trict adopting the law shall not undo its action in that regard within 
two years.60 
§46. Constitutionality of License Laws. 
In the exercise of its undoubted power to regulate the traffic 
in intoxicating liquors, the legislature of a state may lawfully pro- 
vide a system for the granting of licenses to sell at retail, and may 
impose such restrictions and conditions upon the granting of such li- 
censee, and as to the qualifications necessary to secure them, and 
may provide such causes for the forfeiture and revocation of licenses, 
as it may deem necessary and proper.61 "If the state has power to 
prohibit, it certainly has the power to regulate the traffic by deter- 
mining who, and what character of persons, shall be licensed to deal 
in the article . . . Having full and complete control over the sub- 
ject, as an article of internal commerce, the state can prescribe what 
conditions it may think proper upon which licenses can be obtained. 
It becomes simply a question of degree of prohibition." 62 Under the 
license laws as generally framed, it is not every person who chooses 
that can obtain a license. The applicant is usually required to be a 
resident of the state, of good moral character, recommended by a 
68 Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746. 
69 Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746. Compare Thornton 
v. Territory, 3 Wash. T. 482, 17 Pac. 
Rep. 896. 
60Feek v. Bloomingdale, 82 Mich. 393, 
47 N. W. Rep. 37. 
61 Crowley v. Christensen, 137 U. S. 
86, 11 Sup. Ct. Rep. 13; Metropolitan 
Board of Excise v. Barrie, 34 N. Y. 657; 
People v. Meyers, 95 N. Y. 223; Inger- 
soll v. Skinner, 1 Denio, 540; Pierce v. 
State, 13 N. H. 536; Keller v. State, 11 
Md. 520, 69 Am. Dec. 226; Cahen v. Jar- 
rett, 42 Md. 571; Rohrbacher v. Jack- 
son, 51 Miss. 735; Schulherr v. Bor- 
deaux, 64 Miss. 59, 8 South. Rep. 201; 
Adler v. Whitbeck, 44 Ohio St. 539, 9 N. 
E. Rep. 672; Anderson v Brewster, 44 
Ohio St. 576, 9 N. E. Rep. 683; Streeter 
v. People, 69 Ill. 595; State v. Searcy, 
20 Mo. 489: Thomasson v. State, 15 Ind. 
449; Territory v. Connell, (Ariz.) 16 
Pac. Rep. 209. 
62 Cahen v. Jarrett, 42 Md. 571. 
61 § 46 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
certain number of citizens of his ward, etc. But this principle of 
selection is not repugnant to any constitutional rule. It is undoubt- 
edly true, as a general principle, that any person has the natural 
right to pursue any lawful calling, and to do so in his own way, pro- 
vided he infringes the rights of no other person. And of this right 
the individual cannot arbitrarily be deprived. Hence it is not con- 
sistent with a due recognition of personal rights to prohibit any per- 
son or class of persons from offering their services in lawful busi- 
ness. "But here as elsewhere," it has been very pertinently said, "it 
is proper to recognize distinctions that exist in the nature of things, 
and under some circumstances to inhibit employments to some one 
class, while leaving them open to others . . . Some employments, 
in which integrity is of vital importance, it may be proper to treat as 
privileges merely, and to refuse the license to follow them to any 
who are not reputable." 63 The authorities are therefore agreed that 
a law withholding licenses except to persons who are morally trust- 
worthy, and otherwise qualified, and who are recommended as the 
act directs, is not in derogation of the general rights and liberties of 
the citizen, as secured by the constitution.64 Indeed the courts have 
gone much further than this. Even where a license law gives an 
arbitrary discretion to a board or court to prevent an applicant from 
engaging in an occupation legalized by the state, and without any 
sort of regard to his personal fitness for the business or the propriety 
and merit of his application, they have refused to pronounce it un- 
reasonable or unconstitutional.65 It is next to be remarked that the 
fixing of the amount of the fee to be paid for a license is a matter en- 
tirely within the legislative discretion. If the legislature has power 
to prohibit the traffic in intoxicants altogether, (which is now con- 
ceded,) it is impossible to deny that it may fix the amount of the fee 
at such a figure as will be practically prohibitive, and, a fortiori, at 
such a sum as will operate as a partial restriction upon the business.66 
And since the licensing of persons to sell liquor is not an exercise of 
63 Cooley, Const. Lim. 597. 
64 In re Bickerstaff, 70 Cal. 35, 11 Pac. 
Rep. 393; Lunt's Case, 6 Me. 412; City 
Council v. Ahrens, 4 Strobh. 241. 
66 In re Hoover, 30 Fed. Rep. 51, af- 
firmed in United States v. Ronan, 33 
Fed. Rep. 117. 
"Tenney v. Lenz, 16 Wis. 566. 
62 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 47 
the taxing power of the state to raise revenue, but of the police power, 
for the regulation and restriction of a dangerous business, it follows 
that the adjustment of the fees for licenses is not governed by the 
constitutional provisions requiring equality and uniformity of taxa- 
tion.67 In many of the states, the statutes require the licensed liq- 
uor dealer to give a bond with sureties, conditioned for the payment 
of all fines and penalties adjudged against him, and sometimes for 
damages recovered against him under the civil damage laws. Such 
a requirement is valid and constitutional.68 But a statute in relation 
to the bonds of liquor dealers, in so far as it refuses to any one engaged 
in selling liquor the right to become surety on such bonds, is in vio- 
lation both of a provision in the state constitution securing to every 
person his liberty and property and of the fourteenth amendment to 
the federal constitution.69 "The right to sign a bond," said the court, 
in making this ruling, "or to enter into any other contract, cannot be 
made to depend upon the business in which one is engaged. The 
right to sell liquor in this state is made lawful, under certain conditions 
and restrictions, by the act itself . . . We agree with the learned 
counsel for the relator that property does not consist merely of the 
title and possession. It includes the right to make any legal use of 
it, and the right to pledge or mortgage it, and to sell or transfer it. 
The right to contract a debt or other personal obligation is included 
in the right to liberty, and one's payment of his debts, and therefore 
the basis of one's credit, and the right to contract a debt, or to enter 
into a bond or other writing or obligation, is also aright of property. 
Signing bonds for other parties may be the result of friendship, or 
because of business interests; but the right to pledge one's estate is 
as much a right of property as either the title or possession." 
§ 47. Same; Requiring Assent of Neighbors. 
The license laws commonly provide, as a necessary condition to 
the granting of a license in any case, that the person's application 
67 Richland Co. v. Richland Center, 
59 Wis. 591, 18 N.W. Rep. 497; Thomas- 
son v. State, 15 Ind. 449. 
68 Bell v. State, 28 Tex. App. 96, 12 S. 
W. Rep. 410; McGuire v. Glass, (Tex. 
App.) 15 S. W. Rep. 127. 
69 Kuhn v. Common Council, 70 Mich. 
534, 38 N. W. Rep. 470. 
63 § 47 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
shall be recommended, or assented to, by a certain number of per- 
sons residing in his neighborhood, or by a majority, or other propor- 
tion, of the citizens or voters in the ward or district where he pro- 
poses to carry on business. Much objection has been made to such 
a requirement. But the courts have always ruled that it was no inva- 
sion of personal rights, but a lawful and proper police regulation.70 
This question received very full consideration in a recent case which 
originated in California and went through the state and federal courts. 
It concerned the validity of an ordinance of the city of San Fran- 
cisco, requiring all retail liquor dealers to procure a license, and mak- 
ing it an offense to sell liquor without such license, and at the same 
time forbidding any such license to be issued unless the applicant 
should obtain the written consent of a majority of the board of police 
commissioners of the city, with a further provision that if such con- 
sent should be refused at first, it should be granted when the appli- 
cation received the indorsement of twelve property owners in the 
block or square where the business was to be carried on. In the 
supreme court of California it was argued that this ordinance made 
the license depend upon the arbitrary will and pleasure of the police 
commissioners in the first instance, and of the twelve property own- 
ers in the second, and therefore was invalid as an invasion of civil 
rights. But the court pronounced in favor of the constitutionality of 
the ordinance, saying "it is well settled that the governing power may 
prohibit the manufacture and traffic in liquor altogether, provided 
only that it does not interfere with interstate commerce. And if the 
governing power can prohibit a thing altogether, it can impose such 
conditions upon its existence as it pleases." 71 The case next appeared 
in the United States circuit court, where Judge Sawyer decided that 
it was governed by the rule in Yick Wo v. Hopkins,™ and that the 
ordinance, was invalid because it conferred an arbitrary power upon 
the designated authorities which might be so exercised as to deny to 
70 State v. Brown, 19 Fla. 563; Groesch 
v. State, 42 Ind. 547; In re Hoover, 30 
Fed. Rep. 51; Ro^-bacher v. Jackson, 
51 Miss. 735; Purdy v. Sinton, 56 Cal. 
133. Compare People v. Haug, 68 Mich. 
549. 37 N. W. Rep. 21. 
71 Ex parte Christensen, 85 Cal. 208, 24 
Pac. Rep. 747. 
72118 U. S. 356, 6 Sup. Ct. Rep. 1064. 
64 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 48 
the petitioner the equal protection of the laws.73 But, on appeal to 
the supreme court of the United States, this decision was reversed, 
and it was there held that the ordinance in question was a valid exer- 
cise of the police power of the state and municipality, and not in 
contravention of the fourteenth amendment.74 
§ 48. Same; Discrimination against Non-Residents. 
A state statute requiring dealers in intoxicating liquors to take out 
a license is not invalid, as in conflict with the provision of the federal 
constitution securing to the citizens of each state all the privileges 
and immunities of citizens in the several states, although it excludes 
non-residents from the privilege of obtaining a license, as by restrict- 
ing that right to citizens of the state, or by requiring a certain term 
73 In re Christensen, 43 Fed. Rep. 243. 
74 Crowley v. Christensen, 137 U. S. 
86,11 Sup. Ct. Rep. 13. From the opin- 
ion by Field, J., we extract the follow- 
ing: "The constitution of California 
vests in the municipality of the city and 
county of San Francisco the right to 
make ' all such local, police, sanitary, 
and other regulations as are not in con- 
flict with general laws.' The supreme 
court of that state has decided that the 
ordinance in question, under which the 
petitioner was arrested, and is held in 
custody, was thus authorized, and is 
valid. That decision is binding upon 
us unless some inhibition of the consti- 
tution or of a law of the United States 
is violated by it. We do not perceive 
that there is any such violation. The 
learned circuit judge saw in the pro- 
visions of the ordinance empowering 
the police commissioners to grant or re- 
fuse their assent to the application of 
the petitioner for a license, or, failing 
to obtain their assent upon application, 
requiring it to be given upon the rec- 
ommendation of 12 citizens owning real 
estate in the block or square in which 
his business as a retail dealer in liquors 
was to be carried on, the delegation of 
arbitrary discretion to the police com- 
missioners, and to real-estate owners of 
the block, which might be and was ex- 
ercised to deprive the petitioner of the 
equal protection of the laws. And he 
considers that his view in this respect 
is supported by the decision in Yick Wo 
v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 
Rep. 1064. " But, after considering the 
circumstances and nature of the case 
cited, the learned judge continued: "It 
will be seen that that case was essen- 
tially different from the one now under 
consideration, the ordinance there held 
invalid vesting uncontrolled discretion 
in the board of supervisors with refer- 
ence to a business harmless in itself and 
useful to the community, and the dis- 
cretion appearing to have been exer- 
cised for the express purpose of depriv- 
ing the petitioner of a privilege that 
was extended to others. In the present 
case the business is not one that any per- 
son is permitted to carry on without a 
license, but one that may be entirely 
prohibited or subjected to such restric- 
tions as the governing authority of the 
city may prescribe." 
INTOX.LIQ.-5 
65 [Ch. 3 
§ 48 
LAW OF INTOXICATING LIQUORS. 
of residence within the state as one of the necessary qualifications 
of the applicant.76 The constitutional guaranty in question was not 
designed to prevent the states from requiring such length of resi- 
dence, for the enjoyment of political or municipal rights, as they 
might deem conducive to their welfare. To sell intoxicating liquor 
at retail is not a natural right to pursue an ordinary calling. To sell 
without a license, in states adopting the license system, is not aright 
that may be claimed by either citizens or strangers. "If we agree 
to exclude political privileges from the number of privileges and 
immunities which the constitution of the United States declares citi- 
zens of other states shall be entitled to, there is the same reason for 
extending the limitation to municipal privileges. And selling spirituous 
liquors in quantities less than one quart is, in this state, a privilege 
granted only to those having the qualifications pointed out in the act. 
A residence of two years in the state is one of the qualifications 
which the legislature have thought proper to require, and this quali- 
fication, we consider, is no more liable to constitutional objection 
than a residence of one year before a citizen from another state is 
allowed to vote, or a residence of five years before he can be elected 
to the legislature." 76 Neither is a restriction of this character repug- 
nant to the exclusive power of congress to regulate interstate com- 
merce. If it should have any effect upon such commerce, its rela- 
tion to it would be only remote and incidental. Nor does it con- 
travene the provision of the fourteenth amendment, that "no state 
shall make or enforce any law which shall abridge the privileges and 
immunities of citizens of the United States." The object of such a 
restriction is not to grant greater privileges to citizens of the state 
than are accorded to citizens of other states, or to give the former 
an undue advantage over the latter, but to provide safeguards against 
evasions and violations of the law, by confining the privilege of sell- 
ing, as a matter of police regulation, to such persons as it may be 
75 Austin v. State. 10 Mo. 591; Kohn v. 
Melcher, 29 Fed. Rep. 433; Welsh v. 
State, 126 Ind. 71, 25 N. E. Rep. 883; 
Mette v. McGuckin, 18 Nebr. 323, 25 N. 
W. Rep. 338. 
76 Austin v. State, 10 Mo. 591. See 
further, as to the meaning of this con- 
stitutional provision, Corfield v. Cor- 
yell, 4 Wash. C. C. 371; Campbell v. 
Morris, 3 Ear. & McH. 554; Douglass 
v. Douglass, 1 Del. Ch. 465; Conner v. 
Elliott, 18 How. 591. 
66 Ch. 3] 
§ 50 
CONSTITUTIONALITY OF LIQUOR LAWS. 
deemed safe to intrust with this right.77 And, on even stronger rea- 
sons, it is competent for the state to limit the issuing of licenses to 
"citizens of the United States of temperate habits and good moral 
character" who shall have complied with all the requirements of the 
act.78 
§ 49. Same; Restriction to Particular Classes. 
A law providing for the granting of permits, to persons of good 
moral character, who are citizens of the county, to sell intoxicating 
liquors, is not in conflict with a constitutional provision that all men 
are equal and endowed with the right of acquiring, possessing, and 
protecting property; nor is it violative of a constitutional prohibition 
of the grant to any citizen or class of citizens, of " privileges or immu- 
nities which, upon the same terms, shall not equally belong to all cit- 
izens." 79 Such a discrimination is not only justifiable but necessary, 
as a matter of judicious police regulation. As Judge Cooley signifi- 
cantly remarks, " some employments, in which integrity is of vital 
importance, it may be proper to treat as privileges merely, and to 
refuse the license to follow them to any who are not reputable."80 
On a similar principle, it is settled that the legislature has the right 
to confine the sale of intoxicating liquors for medical, scientific, or 
mechanical purposes to such persons as qualified physicians or licensed 
druggists.81 
§ 50. Same; Regulation of Sales by Licensees. 
The legislature having the power to require liquor dealers to take 
out a license, and also the power to exercise a sound discretion as 
to the persons or classes to whom this privilege shall be granted, 
it follows that there is no constitutional objection to the imposition 
upon the licensed vendor of such reasonable and proper conditions 
77 Kohn v. Melcher, 29- Fed. Rep. 433. 
78Trageser v. Gray, (Md.) 20 Atl. Rep. 
905. 
™In re Ruth, 32 Iowa, 250; Thomas- 
son v. State, 15 Ind. 449. 
80 Cooley, Const. Lim. 597. 
81 Koester v. State, 36 Kans. 27, 12 
Pac. Rep. 339; Intoxicating Liquor 
Cases, 25 Kans. 751, 37 Am. Rep. 284; 
Sarris v. Comm., 83 Ky. 327. 
67 § 50 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
and restrictions as the public welfare may require, in respect to the 
conduct of his business, and the time, place, and manner of his 
sales. As we have already seen, the legislature may lawfully pro- 
hibit all persons, including the holders of licenses, from selling liquor 
to minors, intoxicated persons, and habitual drunkards, and also 
from selling on Sundays, election days, and public holidays.82 The 
license, it should be remembered, does not give any right to sell in 
violation of law, or at the arbitrary pleasure of the licensee, or at 
all such times as he may choose. Hence a statute prohibiting the 
sale of liquor between the hours of eleven at night and five in the 
morning is a proper exercise of the police power and is constitu- 
tional.83 So also, a provision that a dealer shall not sell liquor in 
any other place than that specified in his bond, without giving notice 
and executing another bond, is valid.84 And so, it being undoubt- 
edly in the power of the legislature to regulate the manner in which 
drinking saloons shall be conducted, it may lawfully require the 
saloon-keeper to have his license posted in a conspicuous place on 
the premises.85 And the same is true of the "screen law" adopted 
in several states. This law provides that on Sundays, and at other 
times when liquor saloons are required by law to be kept closed, no 
screen, curtain, or other obstruction shall be so placed as to prevent 
a clear view of the interior of the premises. It is held to be no 
invasion of the security guarantied by the constitution against unrea- 
sonable searches.86 Replying to an objection against the constitu- 
tionality of such a law on the ground stated, the supreme court of 
Michigan observes: "The position of counsel for the relator would 
undoubtedly be correct were the provisions of such a statute sought 
to be applied to one's dwelling, or to any place where any useful 
business, profession, trade, or occupation is carried on; but the bus- 
iness of selling intoxicating liquors is one which the legislature have 
an undoubted right to regulate or prohibit, and they have there- 
& Supra, §§ 41, 42. And see Lodano 
v. State. 25 Ala. 64. 
83 Hedderich v. State, 101 Ind. 564, 1 
N. E. Rep. 47, 51 Am. Rep. 768. 
84 People v. Brown, (Mich.) 48 N. W. 
Rep. 158. 
85 Ex parte Bell, 24 Tex. App. 428, 6 
S. W. Rep. 197. 
86 Robison v. Haug, 71 Mich. 38, 38 N. 
W. Rep. 668; Comm. v. Costello, 133 
Mass. 192; Comm. v. Casey, 134 Mass 
194. 
68 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 50 
fore the power to impose such conditions and restrictions upon the 
sale as in their judgment may seem wise, where such restrictions 
are applied to all alike or to the same class alike."87 On the same 
principle, a statute of Massachusetts conferring upon the mayor and 
aidermen of a city, or the selectmen of a town, or any police officer 
or constable specially authorized by them, power to "enter upon the 
premises of any person licensed to sell under this act, to ascertain 
the manner in which such person conducts his business, and to pre- 
serve order," is held to be a reasonable exercise of the police power 
of the state and not unconstitutional.88 The power to thus subject 
a class of persons to police surveillance must be based upon a very 
strong ground of public necessity. But it can hardly be denied 
that the exigency is sufficient to justify the measure adopted. 
In regard to the effect of such regulative laws upon persons licensed 
before their enactment, there are settled principles of law adequate 
to solve all difficulties. In the first place, a license to sell liquor is 
not a contract, the obligation of which may not be impaired, nor does 
it confer vested or indefeasible rights.89 Consequently, laws imposing 
additional restrictions or conditions may well apply to persons hold- 
ing licenses at the time of their passage.90 Such persons, likewise, 
are subject to laws prohibiting acts, in relation to their business, 
which were not unlawful when their licenses were issued, and to the 
penal consequences of violating such laws. But if a law of this char- 
acter were specifically made retroactive, and it were attempted, under 
it, to punish an act committed before its passage and which was law- 
ful when done, then, in that single case, it would be an ex post facto 
law, and to that extent void.91 But with this exception, the licensee 
must simply assume the additional burdens and responsibilities, for 
his license gives him no protection or immunity against changes in 
the laws. 
87 Robison v. Haug, 71 Mich. 38, 38 N. 
W. Rep. 668. 
88 Comm. v. Ducey, 126 Mass. 269. 
89 Infra, §§ 127, 128. 
90 Heck v. State, 44 Ohio St. 526, 9 N. 
E. Rep. 305. 
91 State v. Isabel, 40 La. Ann. 340, 4 
South. Rep. 1. 
69 § 52 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
§ 51. Same; Providing for Revocation of License. 
A statute providing for the revocation of licenses granted for the 
sale of intoxicating liquors,-e. g., on conviction of the licensee for a 
violation of any law pertaining to the sale of liquors,-is not uncon- 
stitutional as impairing the obligation of contracts, or as taking prop- 
erty without due process of law; for a license is not a contract, but 
a mere privilege subject to the control of the government, nor does 
it possess the essential elements of a vested right or of property.92 
§52. Constitutionality of Search and Seizure Laws. 
In most of the states adopting a prohibitory or severely restrict- 
ive plan of liquor legislation, there are statutes authorizing the issu- 
ance of warrants to search for liquors alleged to be illegally kept for 
sale, and directing their seizure when found, and their forfeiture or 
destruction when the substance of the offense is established, after 
notice to and hearing of claimants. In view of the constitutional 
provisions against unreasonable searches and seizures, the guaran- 
ties to accused persons of the right to be informed of the nature of 
charges against them, the requirement in all cases of due process of 
law, and other similar safeguards against oppressive or lawless action, 
such statutes must needs be carefully framed to escape the imputa- 
tion of unconstitutionality. But when constructed with a due re- 
gard to all guarantied rights, they are generally held to be valid.93 
The foundation of the power to enact laws of this character, and their 
necessary limitations, have been well stated by the court in Maine, 
in an opinion from which we quote as follows: "Certain articles, 
which are treated as property while used for lawful purposes, may be 
92 La Croix v. Fairfield Co. Comm'rs, 
50 Conn. 321, 47 Am. Rep. 648; Martin 
v. State, 23 Nebr. 371, 36 N. W. Rep. 
554. 
93 State v. Miller, 48 Me. 576; Gray v. 
Kimball, 42 Me. 299; Lincoln v. Smith, 
27 VL 328; Gill v. Parker, 31 Vt. 610; 
Allen v. Staples, 6 Gray, 491; State v. 
Brennan, 25 Conn. 278; State v. Fitz- 
patrick, 16 R. I. 54, 11 Atl. Rep. 773; In 
re Horgan's Liquors, 16 R. I. 542, 18 Atl. 
Rep. 279; Santo v. State, 2 Iowa, 165, 63 
Am. Dec. 487. 
70 Ch. 3] 
§ 52 
CONSTITUTIONALITY OF LIQUOR LAWS. 
subjects of forfeiture and destruction, under proper statutory provis- 
ions, if their use is deemed pernicious to the best interests of the 
community. And when such articles are attempted to be used for 
unlawful purposes, or in an unlawful manner, and the attempts are 
so concealed that ordinary diligence fails to make such discovery 
as to enable the law to declare the forfeiture, statutes authorizing 
searches and seizures have been held legitimate. The exercise of 
this power must be properly guarded, that abuses may be prevented, 
and that a citizen shall not be deprived of his property without hav- 
ing an accusation against him setting out the nature and charge 
thereof, and but by the judgment of his peers or the law of the land; 
and he shall be secure in his person, houses, papers, and possessions 
from unreasonable searches and seizures. It is not perceived that 
the statute under which the suit in this case is attempted to be 
defended violates any of the provisions of the constitution which have 
been adverted to."94 And the supreme court of Iowa declares that 
"no search warrant is unreasonable, in the legal sense, when it is 
for a thing obnoxious to the law, and of a person and place particu- 
larly described, and is issued on oath of probable cause."95 But at 
the same time, a law of this kind which gives no opportunity to the 
party accused to defend his property, requires no notice to him of the 
seizure, or provides no means by which he is to be informed when, 
where, or before whom the search warrant is returned, is held repug- 
nant to the constitutional guaranties and void.96 A statute which, 
without giving the right of search, authorizes the summary seizure 
of intoxicating liquors without a warrant, when unlawfully kept or 
in process of illicit sale or transportation, is valid and constitu- 
tional.97 But a law authorizing officers to close up places for the 
sale of liquor found open at certain times in violation of law, and 
to arrest the offender without warrant, is in violation of the consti- 
tutional provisions forbidding interference with persons or property 
94 Gray v. Kimball, 42 Me. 299, 307, 
Tenney, C. J. 
95 Santo v. State, 2 Iowa, 165, 63 Am. 
Dec. 487. 
96 Fisher v. McGirr, 1 Gray, 1, 61 Am. 
Dec. 381; Hibbard v. People. 4 Mich. 
125. 
97 State v. O'Neil, 58 Vt. 140, 2 Atl. 
Rep. 586; Jones v. Root, 6 Gray, 435; 
Mason v. Lothrop, 7 Gray, 354. 
71 § 53 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
without due process of law and prohibiting the issuance of warrants 
unsupported by oath.98 
§ 53. Power to Confiscate Liquor Illegally Kept. 
The "search and seizure" laws, described in the preceding section, 
usually contain a provision that upon hearing of the complaint, if 
it shall be established that the liquors seized were illegally kept for 
sale, (or illegally transported, or otherwise, according to the statute,) 
the same shall be adjudged forfeited to the use of the state or munic- 
ipality, or shall be destroyed. Such a provision is constitutional." 
The argument most frequently advanced against its validity is that 
by the confiscation of the goods the owner is deprived of his property, 
and the same is taken for public use, without compensation made. 
But there is no soundness in this contention. The same objection, 
as has been remarked, might be urged with equal propriety against 
almost every penal statute, as the law provides that all fines, for- 
feitures, and penalties, with few exceptions, shall accrue to the use 
of the state or of some municipal corporation. When a man is fined 
for any infraction of the law, it may be said, in one sense, that his 
money is taken for public use, but not within the meaning of that 
clause of the constitution. The fine is imposed, not because the 
public wants his money, but as a punishment for his offense, and the 
disposition of it does not affect the validity of the law subjecting 
him to the punishment. "So, in the case under consideration, the 
law imposes the forfeiture of the liquors, not for the benefit of the 
town, but as a punishment for keeping them for an unlawful purpose. 
Forfeitures have frequently been imposed by laws of congress, as 
well as by other laws of this state, none of which have ever been 
adjudged unconstitutional."100 And in fact, as pointed out by Mr. 
Bishop, the oldest English enactment against liquor-selling (St. 12 
98 People v. Haug, 68 Mich. 549, 37 N. 
W. Rep. 21. 
99 State v. Wheeler, 25 Conn. 290; 
Oviatt v. Pond, 29 Conn. 479: State v. 
Snow, 3 R. I. 64; Lincoln v. Smith, 27 
Vt. 328; Fisher v. McGirr, 1 Gray, 1, 61 
Am. Dec. 381. 
100 State v. Brennan's Liquors, 25 
Conn. 278. 
72 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 54 
Edw. II., c. 6, A. D. 1318) provided for a similar forfeiture; "so that 
the levying of the penalty on the specific article is one of the modes 
of fine known in that fountain whence our jurisprudence is drawn."101 
§ 54. Power to Authorize Abatement of Liquor Nuisances. 
The laws found in many of the states declaring that all buildings, 
places, or tenements used for the illegal sale or keeping of intoxicat- 
ing liquors shall be deemed common nuisances and treated as such, 
are constitutional and valid.102 And so a statute which authorizes 
proceedings in chancery to abate a nuisance consisting of a place 
maintained for the unlawful sale of liquors, is valid; and it is not 
unconstitutional as depriving the guilty person of his property with- 
out due process of law, for the proper and orderly proceedings of a 
court of chancery are "due process of law" within the meaning of the 
constitutional guaranty.103 The law in Iowa provides that, if the 
existence of a nuisance is established in either criminal or civil pro- 
ceedings. it shall be abated under judgment of the court by seizing 
and destroying the liquor, and that the fixtures, furniture, etc., used 
about the premises for the manufacture or sale of liquor shall be 
removed and sold. This act, it is held, does not conflict with the 
provisions of either the state or federal constitutions relating to the 
rights of property.104 And where a defendant, proceeded against 
101 Bishop, Stat. Crimes, § 993. 
"2 Mugler v. Kansas. 123 U. S. 623, 8 
Sup. Ct. Rep. 273; Comm. v. Howe, 13 
Gray, 26; Streeter v. People, 69 Ill. 595; 
Our House v. State, 4 Greene, (Iowa,) 
172; Zumhoff v. State, Id. 526; McLane 
v. Leicht, 69 Iowa, 401, 29 N. W. Rep. 
327; Littleton v. Fritz, 65 Iowa, 488, 22 
N. W. Rep. 641, 54 Am. Rep. 19; State 
v. Crawford, 28 Kans. 726. 
103 State v. Jordan, 72 Iowa, 377, 34 N. 
W. Rep. 285; Carleton v. Rugg, 149 
Mass. 550, 22 N. E. Rep. 55. 
104 Craig v. Werthmueller, 78 Iowa, 
598, 43 N. W. Rep. 606. The following 
is an extract from the opinion in this 
case; "The appellees contend that 
though they did create and maintain 
nuisances as alleged in the amendment 
to the petition, no decree should be en- 
tered against them for the seizure and 
destruction of their liquors, nor for the 
removal and sale of furniture, fixtures, 
etc., because the law authorizing the 
same is in conflict with amendments 4 
and 14 to the constitution of the United 
States, and sections 8 and 9, bill of 
rights, and article 3,Const. Iowa. Their 
contention is that property of an indi- 
vidual cannot be confiscated or for- 
feited by legislative enactment, but 
only by the judgment of a court, in ac- 
cordance with due process of law; and 
that by said laws the legislature forfeits 
73 § 55 
[Ch. 3 
LAW OF INTOXICATING LIQUORS. 
under this act, removed the case to the federal court, on the ground 
that he was virtually deprived of his right to a trial by jury, and of 
his property without due process of law, it was held that no federal 
question was involved, and that the cause should be remanded to the 
state court.106 And if the corporate powers conferred upon a munic- 
ipality are broad enough to .authorize an ordinance declaring the 
selling of spirituous liquors a nuisance, and imposing a fine for the 
offense, such ordinance is valid.106 
§55. Taxation of Liquor Traffic. 
It may be regarded as now well settled that the legislature of a 
state has full constitutional power to impose a tax upon the business 
of liquor dealers, wholesalers as well as retailers, and to declare who 
shall constitute such dealers.107 And it is to be observed that such 
the property in question, and does not 
leave such forfeiture to the court; that 
property cannot be forfeited by an ac- 
tion against the person, but must be by 
action against the thing, and that in a 
criminal case for nuisance the property 
is not involved, and that the defendant 
is entitled to his day in court upon the 
question of the forfeiture of his prop- 
erty. We understand the law to be 
that property of individuals cannot be 
forfeited by legislative enactment; that 
such forfeitures can only be by the 
judgment of a court of competent ju- 
risdiction, in a proper case, after due 
notice. This statute does not forfeit 
property by legislative enactment, but, 
as in many other instances, authorizes 
and requires the courts, in cases where 
it has been established upon judicial 
investigation that property is such, or 
has been so used, as to constitute a nui- 
sance, to abate the nuisance by destroy- 
ing and selling the property. It is only 
by the judgment of a court that any 
person may rightfully destroy liquors 
found upon the defendants' premises 
described, or remove therefrom and sell 
the furniture, fixtures, etc., therein. In 
actions, either criminal or equitable, 
wherein the existence of a nuisance is 
established under the law in question, 
the action is against the thing -the 
place-as well as against the person. 
In either case the question is whether 
the place was a nuisance, and, if so, 
then whether the person was engaged 
in keeping it. Such actions are against 
the thing as well as the person, and the 
person has due notice, and his day in 
court, in which to defend against the 
forfeiture of his property as well as the 
punishment of himself. " 
105 Schmidt v. Cobb, 119 U. S. 286, 7 
Sup. Ct. Hep. 1373. 
106 Goddard v. Jacksonville, 15 Ill. 
588. 60 Am. Dec. 773. 
107 Kurth v. State, 87 Tenn. 134, 5 S. 
W. Rep. 593; State v. Rouch, (Ohio,) 25 
N. E. Rep. 59; Senior v. Ratterman, 44 
Ohio St. 661, 11 N. E. Rep. 321; Al- 
brecht v. State, 8 Tex. App. 216; Du- 
rach s Appeal, 62 Pa. St. 491; Ex parte 
Marshall, 64 Ala. 266; Westingbausen 
v. People, 44 Mich. 265, 6 N. W. Rep. 
641; Portwood v. Baskett, 64 Miss. 213,1 
South. Rep. 105. 
74 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 56 
an exaction, whether imposed as a license-fee or under the name of 
a tax, is not primarily designed as a means of raising revenue but as 
a means of limiting and restricting a traffic which is dangerous to 
the best interests of the community, and therefore it is not in reality 
an exercise of the taxing power of the state, but of its police power. 
For this reason, and also because it is a tax upon the business or 
traffic rather than upon the property invested in it, the validity of 
such a law is not to be tested by its conformity to the constitutional 
restrictions upon the taxing power, further than that it should be 
uniform in its operation upon manufacturers or dealers of the same 
class.108 Hence a tax upon the occupation of a retailer of liquors, not 
being a tax on his stock in trade, like an ad valorem assessment, 
although it may extract more money from some dealers than from 
others, is not thereby impugned, in respect to its equality and uni- 
formity, in a constitutional sense; and the automatic contrivance 
known as the "register" or "bell-punch" is legitimately furnished 
at each dealer's expense, to count the drinks he dispenses, and thus 
adjust the tax he must pay.109 
§56. Constitutionality of Civil Damage Laws. 
In many of the states there are statutes providing that certain 
classes of persons, upon sustaining injuries from the acts of an 
intoxicated person, or in consequence of his intoxication, habitual or 
otherwise, shall have a right of action in damages against the persons 
who, by selling or giving him liquor, produced such intoxication, or 
contributed thereto, in whole or in part. These statutes are com- 
monly known as the "civil damage" laws. Their constitutionality 
has always been sustained by the courts. They are held to be valid 
and legitimate exertions of the legislative power.110 In particular, it 
is no ground of objection to the constitutionality of such a statute 
that the person sought to be made liable thereunder had a license to 
108 Senior v. Ratterman, 44 Ohio St. 
661, 11 N. E. Rep. 321; State v. Hudson, 
78 Mo. 302; Thomasson v. State, 15 Ind. 
449. 
11,9 Albrecht v. State, 8 Tex. App. 216. 
110 Moran v. Goodwin, 130 Mass. 158, 
39 Am. Rep. 443; Baker v. Pope, 2 Hun, 
556; Franklin v. Schermerhorn, 8 Hun, 
112; Sibila v. Bahney, 34 Ohio St. 399; 
Horning v. Wendell, 57 Ind. 171; Wer- 
ner v. Edmiston, 24 Kans. 147. 
75 § 56 
[Ch. 3 
LAW OF INTOXICATING LIQUORS. 
sell, lawfully issued, at the time the civil damage law took effect; 
for the license is not a contract, the obligation of which may not be 
impaired, and when the holder acquired the privilege which it con- 
ferred, he took it subject to any additional burdens or responsibilities 
which the law might impose.111 Further, although such a law makes 
a liquor-seller liable to the full extent for the results of an intoxica- 
tion to which his own sales contributed in part only, it is not uncon- 
stitutional as holding one man responsible for the acts of another. 
In a case in which this argument was pressed, the supreme court of 
Ohio observed: "The business of the defendant, as conducted by 
him, being in open violation of the statute, a provision that holds 
him responsible for an injury to which his unlawful conduct con- 
tributes, cannot be said to be in conflict with any right guarantied 
by the constitution. . . . By causing, in conjunction with others, 
the injury for which the action is brought, by an act in clear violation 
of the statute, he becomes a joint tort-feasor, and, as at common 
law, is liable for the entire damages resulting from such injury." 112 
It is an additional feature of the civil damage laws in some of the 
states that they authorize a recovery against the liquor-dealer's 
lessor, when the latter knowingly permits the traffic to continue on 
the premises. This also is constitutional. It is held that the legis- 
lature may create a cause of action in damages, in favor of one 
injured in person or property by the act of an intoxicated person, 
against the owner of real property, whose only connection with the 
injury is that he leased the premises where the liquor was furnished, 
with knowledge that intoxicants were to be sold there. Such a pro- 
vision is not in conflict with the constitutional prohibition against 
taking private property without compensation. While it may indi- 
rectly operate to restrain the absolute freedom of the owner in the 
use of his property, and so impair its value, this is not a "taking" 
witbin the meaning of the constitution. All property is held subject 
to the general police power of the state to regulate or control its use 
to secure the general safety and the public welfare.113 
111 Moran v. Goodwin, 130 Mass. 158, 
89 Am. Rep. 443; Baker v. Pope, 2 Hun, 
556; Horning v. Wendell, 57 Ind. 171. 
112 Sibila v. Bahney, 34 Ohio St. 399. 
113 Bertholf v. O'Reilly. 74 N. Y. 509, 
30 Am. Rep. 323. 
76 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 58 
§ 57. Laws Prohibiting Recovery for Liquor Sold. 
A statutory provision that no action of any kind shall be main- 
tained within the state "for the recovery or possession of spirituous 
liquors or the value thereof," the same being kept for sale in viola- 
tion of law, is valid and constitutional.114 So also is a law providing 
that no action shall be maintained for intoxicating liquor purchased 
out of the state for sale within the state in violation of law.115 But 
in New York it has been held that a law compelling persons to prove 
that any liquor for the value of which they would bring an action 
was sold according to the law, or lawfully kept and owned by them, 
was unconstitutional and void.116 
§ 58. Power of State to Punish Illicit Traffic Criminally. 
That it is within the power of the state, as a means of enforcing 
its restrictive or prohibitory laws, to provide for the punishment of 
the act of unlawfully selling intoxicating liquors, by fine or imprison- 
ment, is not open to serious question. Such enactments are not in 
violation of any constitutional rights or liberties.117 And although 
the mere possession of the instruments of crime is not an overt act 
punishable at common law, yet a statute is valid which makes it an 
offense to keep intoxicating liquors with intent to sell the same in 
violation of law. As observed by the court in Vermont, "there are 
many ancient and modern statutes, English and American, that make 
bare possession, when accompanied with the intent, a sufficient act 
in the cases for which they provide. It was admitted in argument 
for the prisoner in King v. Sutton (as reported in Cas. t. Hardw. 370) 
that bare possession with the intent could be made a crime by posi- 
tive enactment. And so it has always been considered, else these 
statutes would not have been so long and so often enforced, and no 
114 Thurston v. Adams, 41 Me. 419. 
115 Barrett v. Delano, (Me.) 14 Atl. 
Rep. 288; Meservey v. Gray, 55 Me. 540. 
116 People v. Toynbee, 2 Park. (N. Y.) 
329. 
117 Comm. v. Clapp, 5 Gray, 97; Comm, 
v. Murphy, 10 Gray, 1; Luton v. 
Palmer, 69 Mich. 610, 37N. W. Rep. 701. 
77 § 59 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
question made about it."118 A law is not objectionable as ex post 
facto which, in providing for the punishment of future offenses, 
authorizes the offender's conduct in the past to be taken into account, 
and the punishment to be graduated accordingly. For instance, a 
statute imposing a heavier penalty for a second offense of keeping 
liquors contrary to law is not ex post facto as applied to a case where 
the second offense was committed after the passage of the law.119 
For it is the second offense to which the additional penalty is attached, 
not the first, and the law is therefore prospective. But if both the 
first and second offense preceded the enactment of the law, then it 
would be unconstitutional, for it would aggravate the punishment of 
a crime already past.120 
§59. Power to Exact Penalties and Forfeitures. 
A provision in a liquor law, that a conviction of the licensee for a 
violation of the law shall work a forfeiture of his bond, is not uncon- 
stitutional as taking the property of the surety without due process 
of law; for the bond is entered into in view of the provision of the 
statute as to what shall constitute a breach, and the provision thus 
becomes a part of the obligation.121 A statute passed after suit com- 
menced to abate a liquor nuisance, giving attorney's fees against 
defendants in such cases, as part of the taxable costs, applies to such 
case, and is not an ex post facto law, as it applies to the remedy and 
not to the penalty.122 So also, a law providing that a judgment for 
a fine for a violation of the liquor law shall be a lien on the prop- 
erty of a third person used with his consent for such unlawful sale, 
is constitutional.123 
118 State v. Wheeler, (Vt.) 20 Atl. Rep. 
601. 
119 State v. Woods, 68 Me. 409. See, 
also, Rand v. Comm., 9 Gratt. 738; Ex 
parte Gutierrez, 45 Cal. 430; People v. 
Butler, 3 Cow. 347. 
120 Ross's Case, 2 Pick. 165; Black, 
Const. Prohib. § 241. 
121 Welch v. McKane, 55 Conn. 25,10 
Atl. Rep. 168. 
122 Drake v. Jordan, 73 Iowa, 707, 36 
N. W. Rep. 653; Campbell v. Mander- 
scbeid, 74 Iowa, 708, 39 N. W. Rep. 92. 
123 Polk Co. v. Hierb, 37 Iowa, 361; 
Hardten v. State, 32 Kans. 637, 5 Pac. 
Rep. 212; State v. Snyder, 34 Kans. 425, 
8 Pac. Rep. 860. 
78 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 60 
§ 60. Laws Relating to Bules of Evidence. 
The legislature has undoubtedly a very extensive power in respect 
to fixing or modifying the rules of evidence to be applied by the 
courts.124 The exercise of this power, however, in relation to crim- 
inal proceedings, is subject to certain important limitations, among 
which are the following: (1) The legislature, in enacting rules of 
evidence, must not usurp judicial functions; (2) such rules must not 
be of the nature of ex post facto laws125 or illegally retroactive in their 
operation; (3) they must not deprive the accused of his constitu- 
tional right to be confronted with the witnesses against him; (4) the 
legislature cannot compel a defendant to furnish evidence against 
himself; (5) nor deprive him of his right to a trial by jury; (6) it 
would be unlawful to make any given fact or state of facts conclusive 
evidence of guilt, in negation of the common law presumption of inno- 
cence. The rules of evidence in prosecutions under the liquor laws 
have frequently been the subject of legislative attention, and the 
changes made have sometimes shown a wide departure from common 
law principles. All such statutes - which, for the most part, are 
designed to facilitate convictions by admitting presumptive or indi- 
rect proof of certain facts - must be brought to the test of constitu- 
tional principles such as those above enumerated. If found to be in 
violation thereof, they are not defensible on any ground of public pol- 
icy or the welfare of the community. As a rule, however, these acts 
have been so framed as to escape constitutional objection. Thus, a 
provision that, in prosecutions for common selling of intoxicating 
liquors, delivery in or from any building or place other than a dwell- 
ing-house shall be deemed prima facie evidence of a sale, is constitu- 
tional and valid.126 "This neither conclusively determines the guilt 
or innocence of the party who is accused, nor withdraws from the 
124See Ralston v. Lothain, 18 Ind. 303; 
Rich v. Flanders, 39 N. H. 304; Cooley, 
Const. Lim. 367; Black, Const. Prohib. 
§202. 
125 A law "that alters the legal rules 
of evidence, and receives less or differ- 
ent testimony than the law required at 
the time of the commission of the of- 
fense, in order to convict the offender, " 
is ex post facto. Calder v. Bull, 3 Dall. 
390. 
126 Comm. v. Williams, 6 Gray, 1; 
Comm. v. Wallace, 7 Gray, 222; Comm, 
v. Rowe, 14 Gray, 47. 
79 § 60 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
jury the right and duty of passing upon and determining the issue to 
be tried."127 And the same is true of a statute providing that, when- 
ever an unlawful sale of liquor is alleged and a delivery proved, it 
shall not be necessary to prove a payment, but such delivery shall 
be sufficient evidence of sale.128 So a law of New York enacts that 
where a person is seen to drink intoxicating liquor on the premises 
of one who has simply a license to sell liquor for consumption off the 
premises, it shall be prima facie evidence that the liquor was sold by 
the occupant of the premises with the intent that it should be drunk 
thereon. This, it is held, is not violative of the constitutional guar- 
anties of due process of law and trial by jury.129 A statutory provis- 
ion that, on a trial for keeping liquor in violation of the act, proof of 
the finding of such liquor in the possession of the accused, under cer- 
tain circumstances specified in the act, shall be received and acted 
upon by the court as presumptive evidence that such liquor was kept 
or held for sale contrary to law, is not unconstitutional.'30 So a law 
which provides that it shall not be necessary to prove an actual sale 
of intoxicating liquors in any tenement, in order to establish the char- 
acter of such premises as a common nuisance, but the notorious char- 
acter of such premises shall be evidence of that fact, is not invalid on 
the ground that it makes mere reputation criminal; it merely makes 
the reputation of the premises evidence of their character, and leaves 
it for the jury to find the owner of the premises guilty or not as they 
may determine.131 Nor is this law in conflict with the constitutional 
provision which secures to all persons prosecuted for crimes the right 
to be confronted with the witnesses against them, since it is the fact 
that the reputation exists which is put in proof, and the persons tes- 
tifying to this fact are the witnesses, and not the people whose utter- 
ances created the reputation.132 And a statute which imposes a pen- 
^Comm. v. Williams, 6 Gray, 1. 
128State v. Hurley, 54 Me. 562; State 
v. Day, 37 Me. 244. 
129 Auburn Excise Comm'rs v. Mer- 
chant, 103 N. Y. 143, 8 N. E. Rep. 484, 
57 Am. Rep. 705. 
130State v. Cunningham, 25 Conn. 195; 
Santo v. State, 2 Iowa, 165, 63 Am. Dec. 
487; State v. Higgins, 13 R. I. 330, 43 
Am. Rep. 26, note. 
131 State v. Wilson, 15 R. I. 180, 1 Atl. 
Rep. 415. 
132State v. Waldron, 16 R. I. 191,14 Atl. 
Rep. 847. This case was ruled mainly on 
the analogy of the admissibility of dy- 
ing declarations, in which case, as the 
court observed, the person who testifies 
80 Ch. 3] 
§ 61 
CONSTITUTIONALITY OF LIQUOR LAWS. 
alty for keeping a place in which it is reputed that intoxicating liquors 
are kept for sale is not unconstitutional, the defendant being at lib- 
erty to show that the reputation is unfounded.133 
§ 61. Laws Relating to Criminal Pleading. 
A law which provides that, in criminal prosecutions under the liq- 
uor laws, the form of the statute, if substantially followed in the 
complaint, shall be sufficient in law to fully and plainly describe the 
offense, is not violative of the constitutional provision securing to the 
accused "the right to be informed of the nature and cause of the accu- 
sation against him, provided the statute contains enough to amount 
to a substantial description of the offense to be charged.134 A stat- 
ute providing that "no negative allegations of any kind need be 
averred or proved in any complaint" under the liquor law, does not 
violate any constitutional right of the accused.135 But while the leg- 
islature has power to modify and simplify the forms of criminal 
process, it cannot make valid or sufficient a complaint or indictment 
in which the accusation is not "formally, fully, and precisely set 
forth," so that the accused may know of what he is alleged to be 
guilty, and be prepared to meet the exact charges against him.136 
Thus, where a law making it an offense to sell intoxicating liquors 
without a license, authorized the courts to dispense with the allega- 
tion, in an indictment for such offense, that the liquor was sold with- 
out a license, it was held that this provision violated the guaranty 
that no citizen should be deprived of liberty or property except by 
due course of the law of the land.137 An infraction of the liquor laws 
is not an "infamous crime," such that the proceeding for its punish- 
ment must be begun by indictment.138 
as to the declarations (repeats them) is 
the witness, against the accused, and 
who must be confronted with him, and 
not the person who made the declara- 
tions. 
133 State v. Thomas, 47 Conn. 546, 36 
Am. Rep. 98. But compare State v. 
^Kartz, 13 R. I. 528; State v. Beswick, 13 
R. I. 211, 36 Am. Rep. 102, note. 
134State v. McKenna, 16 R. I. 398, 17 
Atl. Rep. 51; State v. Kane, 15 R. I. 395, 6 
Atl. Rep. 783; State v. Murphy, 15 R. I. 
543, 10 Atl. Rep. 585. 
135 State v. Beswick, 13 R. I. 211. 
136 State v. Learned, 47 Me. 426. 
137Hewitt v. State, 25 Tex. 722. 
138 State v. Nolan, 15 R. I. 529, 10 Atl. 
Rep. 481. 
INTOX.LIQ.-6 
81 § 62 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
§ 62. Constitutional Right of Trial by Jury. 
The right of trial by jury is secured to the defendant in all crim- 
inal prosecutions, by the sixth and fourteenth amendments to the 
federal constitution and by similar guaranties in most or all of the 
states. That the subject of liquor-selling is one that belongs pecul- 
iarly to the police power of the state is no justification for any stat- 
ute abridging or denying this right. The circumstances under which 
it may be claimed are the same under the liquor laws as under any 
other branch of the penal law. But it is not every proceeding that 
may result in punishment which involves this constitutional right. 
For instance, proceedings according to the common law for contempt of 
court have never been subject to the right of trial by jury. Hence the 
constitutional guaranty is not infringed by a statute which authorizes 
the courts, when a person violates an injunction restraining him from 
selling intoxicating liquors, to punish him, as for contempt, by fine 
or imprisonment.139 In the case of proceedings distinctively crim- 
inal in their nature, much will depend upon the words in which the 
guaranty is expressed in the particular state and upon its ancient 
practice in this regard. In some states it has always been held that 
a jury was not claimable as of right on the trial of petty offenses. 
And hence summary trials and convictions, without the intervention 
of a jury, for violations of municipal ordinances on the subject of 
liquor-selling, do not conflict with the rights of the accused under the 
constitution, and are lawful.140 On the other hand, in Pennsylvania, 
where the constitutional provision is that "trial by jury shall be as 
heretofore," and where selling liquor without license wras an indicta- 
ble offense by statute in the colonial period and before the constitu- 
tion, it is held that an act allowing one to be convicted before a jus- 
tice by a jury of six persons for such selling, is unconstitutional.141 
In the next place, it is a well-settled principle that a statute which 
authorizes a magistrate or other inferior court to try and determine 
139Eilenbecker v. District Court, 134 
U. S. 31, 10 Sup. Ct. Rep. 424. 
140Floyd v. Comm'rs of Eatonton, 14 
Ga. 354; State v. Conlin, 27 Vt. 318. 
141 Comm. v. Saal, 10 Phila. 496. And 
see People v. Baird, 11 Hun, 289. 
82 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 63 
criminal cases without a jury, but which also gives a free and unfet- 
tered right to appeal from the judgment of such court to a court which 
tries by jury, is not open to an objection on the ground of denying 
the right of trial by jury. This principle is applied to proceedings 
under the liquor laws.142 The appeal, however, must not be clogged 
by any prohibitive or unreasonable restrictions. The defendant can- 
not complain if he is required to pay the costs below, with a small 
counsel fee, before his appeal is allowed; as this is not such a bur- 
densome condition as to amount to an abridgment of his right.143 
And so a statute which provides that liquors against which judgment 
of forfeiture has been entered shall be "forthwith" destroyed, unless 
an appeal be taken, is not unconstitutional because, as prerequisite 
to the appeal, by which alone the owner can secure a jury trial, good 
and sufficient sureties must be furnished, and no definite time is fixed 
in which to secure them; because the use of the word "forthwith" 
does not imply that a reasonable time is not to be allowed.144 But 
where the statute provides that if any person claims an appeal from 
a judgment rendered against him by a magistrate for a violation of 
the liquor laws, he shall, before his appeal shall be allowed, give a 
bond with two good and sufficient sureties, conditioned that he will 
not, during the pendency of such appeal, violate any of the provisions 
of the act, this requirement, it is held, interposes an improper obsta- 
cle in the way of the appeal, and thereby impairs his constitutional 
right to be tried by a jury.145 
§ 63. Measure of Punishment to be Inflicted. 
In their zeal for the suppression of illicit dealing in intoxicating 
liquors, the states have sometimes been led to enact penalties so 
severe as to be open to constitutional objection. Thus, the Michi- 
gan liquor law of 1887 provided that persons having furnished bond 
and paid a tax in compliance therewith, should, on any violation of 
142 State v. Brennan's Liquors, 25 
Conn. 278; Beers v. Beers, 4 Conn. 535; 
Emporia v. Volmer, 12 Kans. 622; State 
v. Fitzpatrick, 16 R. I. 54, 11 Atl. Rep. 
773; Jones v. Robbins, 8 Gray, 329. 
143Littlefield v. Peckham, 1 R. I. 500. 
144 In re Liquors of McSoley, 15 R. I. 
608, 10 Atl. Rep. 659. 
145 Saco v. Wentworth, 37 Me. 165; 
Saco v. Woodsum, 39 Me. 258; In r« 
Liquors of McSoley, 15 R. I. 608, 10 Atl. 
Rep. 659. 
83 § 64 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
the law, in addition to the penalties for such violation, forfeit their 
tax paid (which might be as high as $800) and be unable to con- 
tinue business, or become surety on a bond under the act, for one 
year. And another provision of the same law was to the effect that 
a druggist, on failure to keep a public record of purchasers and pur- 
poses of purchase, in any single instance, should be subject to a fine 
of from $100 to $500, and imprisonment fora period between ninety 
days and a year, and for a second offense, be disqualified to sell 
liquor for any purpose for five years. It was held that both these 
clauses were in violation of the constitutional provision against 
excessive fines and unusual punishments, and therefore could not 
lawfully be enforced.146 
§ 64. Title and Subject-Matter of Laws. 
The constitutions of the several states usually contain a provision 
that no statute shall contain matter not expressed or referred to in 
its title. And the validity of liquor laws has frequently been assailed 
for want of conformity to this requirement. We propose briefly to 
review the decisions under this head, and indicate the principles 
which have influenced their determination. A title very commonly 
adopted for laws of this character is "An act to regulate the sale of 
intoxicating liquors." Now' the word "regulate" is one of wide 
import. And almost any provisions, which do not forbid the sale of 
liquor entirely, but contemplate its sale subject to restrictions and 
penalties, are germane to such a title. For example, a statute so 
entitled may lawfully interdict sales by the small measure;147 this 
is regulation and not prohibition. So also, a statute with this cap- 
tion is not invalid because it contains provisions relating to the 
duties of constables, and to liquor nuisances, and repealing local 
license laws.148 But it is well settled that regulation and prohibition 
are essentially and irreconcilably distinct things. And therefore an 
act which professes in its title to merely regulate the traffic in liq- 
448 People v. Haug, 68 Mich. 549, 37 N. 
W. Rep. 21. 
147 State v. Circuit Court, 50 N. J. 
Law, 585, 15 Atl. Rep. 272. 
148 Comm. v. Sellers, 130 Pa. St. 32, 18 
Atl. Rep. 541. 
84 Ch. 3] 
CONSTITUTIONALITY OF LIQUOR LAWS. 
§ 64 
uors, but in its body entirely prohibits their manufacture or sale,-or 
provides for prohibition by local option,-is invalid for containing 
matter not expressed in its title.149 Again, an act entitled as above, 
which, in one of its sections, fixes a penalty for being drunk in a 
public place, without reference to how the liquor was obtained, is 
open to the same constitutional objection.150 Whether the sale and 
the gift of liquor are so essentially different as to require the men- 
tion of both in the title of a law which prohibits both, is a question 
upon which the authorities are not entirely agreed. Most of the 
cases applicable to the point instruct us that the fact that gifts of 
liquor (to a minor, for example) are made an offense in the body 
of the act, while the title prohibits the sale only, does not render the 
act unconstitutional. For the one subject of such a law is the pro- 
hibiting or restraining minors from obtaining intoxicating liquors, 
and that subject is sufficiently described in the title. Making it 
unlawful to "sell, dispose of, barter, or give" the liquor, is but the 
means of effecting the object of the law.151 But in Texas, where the 
constitution provided for the enactment by the legislature of a local 
option law, which should refer to the people the question "whether 
the sale of intoxicating liquors should be prohibited," it was held 
that the legislature had no power to prohibit the gift as well as the 
sale of liquors.152 It is also held that a local option law for a par- 
ticular county may well be entitled "an act to prohibit the sale" of 
liquors in such county;153 and that it is not invalidated by the incor- 
poration of the usual provisions as to submitting it to the people of 
the county, etc., as they declare the manner of the prohibition.154 
But an act entitled "to constitute the town of B. and vicinity, in B. 
county, a separate school district," cannot constitutionally contain 
449 In re Hauck, 70 Mich. 396, 38 N. 
W. Rep. 269; People v. Gadway, 61 
Mich. 285, 28 N. W. Rep. 101; Town of 
Cantril v. Sainer, 59 Iowa, 26, 12 N. W. 
Rep. 753; Miller v. Jones, 80 Ala. 89; 
Bronson v. Oberlin, 41 Ohio St. 478; 
Heise v. Council, 6 Rich. Law, 404; 
Sweet -v. Wabash, 41 Ind. 7. 
150 People v. Beadle, 60 Mich. 22, 26 
N. W. Rep. 800. 
161 Parkinson v. State, 14 Md. 184, 74 
Am. Dec. 522; State v. Adamson, 14 Ind. 
296; Thomasson v. State, 15 Ind. 449. See 
Stickrod v. Comm., 86 Ky. 285, 5 S. W. 
Rep. 580. 
162 Holley v. State, 14 Tex. App. 505. 
163Neighbors v. Comm., (Ky.) 9 S. W. 
Rep. 718. 
154 McGruder v. State, 83 Ga. 616,10S. 
E. Rep. 281; Helverstine v. Yantes, 88 
Ky. 695. 11 S. W. Rep. 811. 
85 § 65 
LAW OF INTOXICATING LIQUORS. 
[Ch. 3 
a prohibition against the sale of intoxicating liquors within the dis- 
trict, as that is not pertinent or germane to the subject expressed.156 
A statute entitled "an act to provide a remedy against persons sell- 
ing liquors to husbands and children," which also prohibits the sale 
of liquor to minors, intoxicated persons, and habitual drunkards, 
and gives a right of action against the seller, is not unconstitutional, 
as embracing more than one subject, nor as containing a provision 
not covered by its title.168 But where nothing further appears in the 
title than that the statute is an amendment to one entitled "an act 
to prevent the sale or giving or delivering liquors to minors," it can- 
not constitutionally contain a clause prohibiting the sale of liquor 
to drunken husbands.167 In general, it is said, though some of the 
provisions found in an act may be civil, and others penal, in their 
character, yet the act cannot be said to embrace more than one 
subject-matter and matters properly connected therewith.168 Other 
decisions relating to the general subject of this section are collected 
in the margin.159 
§ 65. Constitutional Provisions as to Enactment of Laws. 
Where the constitution contains a provision that no bill shall be- 
come a law unless passed in each house of the legislature by a 
majority of the members elected, it is held that a law relating to 
local option in a certain county, which refers to an earlier and exist- 
ing statute, and provides that in a certain event "said act shall 
apply therein as heretofore," is merely a recognition of the existing 
policy of the district, and not an attempt to re-enact the former law 
unconstitutionally.160 
165 Montgomery v. State, 88 Ala. 141, 
7 South. Rep. 51. 
166 Flower v. Witkovsky, 69 Mich. 371, 
87 N. W. Rep. 364; People v. Laning, 
73 Mich. 284, 41 N. W. Rep. 424. 
167 Hyman v. State, 87 Tenn. 109, 9 S. 
W. Rep. 372. 
158 Thomasson v. State, 15 Ind. 449. 
169 Matter of De Vaucene, 31 How. Pr. 
289, 837; Hatfield v. Comm., 120 Pa. St. 
895, 14 Atl. Rep. 151; In re Pollard, 127 
Pa. St. 507, 17 Atl. Rep. 1087; Comm. v. 
Hill, 127 Pa. St. 540, 19 Atl. Rep. 141; 
Ramagnano v. Crook, 85 Ala. 226, 3 
South. Rep. 845; Gandy v. State, 86 Ala. 
20, 5 South. Rep. 420; McArthur v. State, 
69 Ga. 444; Alberson v. Mayor, 82 Ga. 30, 
8 S. E. Rep. 869; Gayle v. Owen County 
Court, 83 Ky. 61; Ex parte Burnside, 86 
Ky. 423, 6 S. W. Rep. 276; Albrecht v. 
State, 8 Tex. App. 216. 
160Temmick v. Owings, 70 Md. 246,16 
Atl. Rep. 719. 
86 Ch. 4] LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 66 
CHAPTER IV. 
LIQUOR LEGISLATION AND THE REGULATION OF COMMERCE. 
§ 66. Police Power Limited by Commercial Power of Congress. 
67. The Rule in Brown v. Maryland. 
68. Exemption of Foreign Imported Liquors from State Laws. 
69. The Decision in the License Cases. 
70. Interstate Commerce and the Police Power. 
71. Importation from Another State-Bowman v. Railway. 
72. The "Original Package" Decision. 
73. Cases Following Leisy v. Hardin. 
74. Effects of this Decision. 
75. What Constitutes an Original Package. 
76. Enactment of the Wilson Law. 
77. Constitutionality of Wilson Law. 
78. Operation and Effect of Wilson Law. 
79. Discrimination against Citizens and Products of Other States. 
§ 66. Police Power Limited by Commercial Power of 
Congress. 
The power of a state, in the exercise of its police jurisdiction, to 
prohibit or regulate the traffic in intoxicating liquors, for the preser- 
vation of the public health and morals, does not warrant the enact- 
ment of laws infringing positive provisions of the federal constitu- 
tion. That constitution is the supreme law, and all state laws, of 
whatever character, and in whatever right enacted, are void if they 
do not conform to its terms. By that instrument, congress is invested 
with exclusive power to regulate commerce with foreign nations and 
among the several states. It follows that if any law of a state relat- 
ing to the manufacture or sale of intoxicants, operates as a regulation 
of foreign or interstate commerce, in derogation of the power or the 
action of congress in that regard, it is, in so far as it produces that 
effect, unconstitutional and void. Several very difficult and very 
important questions have arisen in the determination of the nature of 
such commerce and its regulation, and of the limits of state author- 
ity as fixed by this clause of the constitution. These questions we 
propose to consider in the present chapter. 
87 § 68 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
§ 67. The Rule in Brown v. Maryland. 
In respect to goods imported from foreign countries, the validity 
of state laws prohibiting or regulating their sale was determined as 
early as 1827, in the leading case known as Broivn v. Maryland.1 
It was there held that an article authorized by a law of congress to 
be imported from abroad continued to be a part of the foreign com- 
merce of the country, and therefore subject to no restriction or exac- 
tion other than that imposed by congress, so long as it remained in 
the hands of the importer for sale, in the original bale, package, or 
vessel in which it was imported; that the authority given to import 
necessarily carried with it the right to sell the imported article in the 
form and shape in which it was imported; that no state, either by 
direct assessment, or by requiring a license from the importer before 
he was permitted to sell, could impose any burden upon him, or upon 
the property imported, beyond what the law of congress had itself 
imposed; but that when the original package was broken up for use 
or for retail by the importer, and also when the commodity had 
passed from his hands into the hands of a purchaser, then it ceased 
to be an import or a part of foreign commerce, and became incor- 
porated into the mass of property in the state, and from that point 
was subject to the laws of the state, and might be taxed for state pur- 
poses, and the sale regulated or restricted by the state, like any other 
property. 
§ 68. Exemption of Foreign Imported Liquors from State 
Laws. 
The rule established in the foregoing case stood unshaken until 
changed by statute. It was settled and accepted law that the importer 
of liquors from a foreign country might himself sell them, in the 
original package of importation, without regard to any law of the 
state which would be applicable to such sales under other circum- 
stances.2 And if a state law, by reason of its general terms, would 
*12 Wheat. 419. 
2 Low v. Austin, 13 Wall. 29; Hinson 
v. Lott, 8 Wall. 148; Welton v. Mis- 
souri, 91 U. 8. 275; State v. Robinson, 
88 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 68 
apply to such sale by the importer in the original package, it must 
be understood as subject to a proviso that its enactments should not 
apply in that particular case,3 or else, in such application, it would be 
unconstitutional. But the limitations of the rule, as pointed out in 
the leading case, also came to be firmly established. That is, if the 
sale was made by the importer himself, but not in the original pack- 
age, but in the portions or separate items into which it had been by 
him broken up; or if the sale was made by any purchaser from the 
importer, irrespective of the condition of the goods as to original or 
broken parcels; in either of these cases, the sale was subject to the 
laws of the state, because the property had then lost its character 
as an import and was removed from the protection of federal law.4 
As explained in one of the decisions cited, the right is neither general 
as to persons, nor in its application to the property to which the 
laws of the United States relate. On the contrary, it is limited to 
certain persons and qualified by the status of the property. While 
it is in the hands of the importer, and in the condition in which it 
was imported, the laws under which he has imported it give him the 
right to sell it in that condition. But this is the extent of the right. 
When he parts with the property, or changes its condition, his right, 
and all right to sell it, derived from those laws, ceases.5 Thus we 
see that there is no sanctity in the unbroken condition of the pack- 
age after it has left the importer's hands. An import ceases to be 
such the moment the importer becomes the vendor and sells the arti- 
49 Me. 285; State v. Intoxicating Liq- 
uors, 82 Me. 558, 19 Atl. Rep. 913; State 
v. Fuller, 33 N. H. 259; Jones v. Hard, 
32 Vt. 481; Comm. v. Kimball, 24 Pick. 
359, 35 Am. Dec. 326; State v. Amery, 12 
R. I. 64; State v. Allmond, 2 Houst. 612; 
Wynehamer v. People, 20 Barb. 567; 
People v. Quant, 2 Park. (N. Y.) 410; 
Bode v. State, 7 Gill, 326; Hinson v. 
Lott, 40 Ala. 123; Sears v. Warren Co., 
36 Ind. 267. 
3 State v. Fuller, 33 N. H. 259. 
4 State v. Robinson, 49 Me. 285; Comm, 
v. Kimball, 24 Pick. 359, 35 Am. Dec. 
326; State v. Peckham, 3 R. I. 289; 
Wynehamer v. People, 20 Barb. 567; 
People v. Quant, 2 Park. (N. Y.) 410; 
State v. Allmond, 2 Houst. 612; City 
Council v. Ahrens, 4 Strobh. 241; Hin- 
son v. Lott, 40 Ala. 123; Sears v. War- 
ren Co., 36 Ind. 267. Under the Mas- 
sachusetts law of 1852, intoxicating liq- 
uors might be sold by any person, 
though not himself the importer, in the 
original unbroken packages in which 
they were imported. Bradford v. Ste- 
vens, 10 Gray, 379. But this was because 
the state permitted it, not because it 
could not, as to others than the import- 
er, prohibit it. 
6 Wynehamer v. People, 20 Barb. 567. 
89 § 68 
[Ch. 4 
LAW OF INTOXICATING LIQUORS. 
cle. In the hands of the retailer or distributer, it is an article of the 
internal trade and commerce of the state, and as such is subject to 
its police regulations.6 
But what the importer could do himself he could do by an agent 
or representative. For example, a state statute requiring every 
auctioneer to collect and pay into the state treasury a tax on his 
sales was, when applied to imported goods in the original pack- 
ages, by him sold for the importer, in conflict with the federal con- 
stitution.7 But one who takes from the importer, and duly fore- 
closes, a mortgage on a cask of spirituous liquors, which is in the 
United States warehouse in bond, and who pays the duties and 
receives the property, does not thereby become the importer, in such 
sense as to be exempt from the state law.8 In some states, all sales 
of liquor are presumed to be illegal, and the burden of proof was 
placed upon a party who claimed that such liquor was sold in the 
original package as imported.9 So much, it is believed, is entirely 
within the constitutional power of the state. But the purpose or 
intention of the importer, in making a sale, would seem to be of no con- 
sequence, when the act of sale was fully protected by the federal law. 
Accordingly it was held that his sale was legal and valid, although 
he knew that the purchaser intended to resell the liquor in violation 
of law.10 This doctrine, however, did not pass entirely without ques- 
tion. In Maine, it was ruled that imported foreign liquors were liable 
to seizure and forfeiture under the state law, while the importer 
retained possession of the same in the original package, if for the 
purpose and with the intent to break the package, and sell the liq- 
uors within the state at retail.11 
But so far as concerns the sale of imported foreign liquors, the 
restriction upon the power of the states was taken away by the "Wil- 
6 State v. Peckham, 8 R. I. 289. 
7 Cook v. Pennsylvania, 97 U. S. 566. 
8 King v. McEvoy, 4 Allen, 110. 
9 Carlton v. Bailey, 27 N. H. 230. 
10 Richards v. Woodward, 113 Mass. 
285. 
11 State v. Blackwell, 65 Me. 556. In 
this case Virgin, J., said: "A sale in 
the original package only being author- 
ized by the federal statute, the break- 
ing and selling in a less quantity is 
without that authority, and is within 
the prohibition of the state law; and a 
fixed intent that the package shall be 
broken and sold must place the liquors 
in the same category. It would hardly 
be considered reasonable that the fed- 
eral law should protect property until 
90 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 69 
son Act" of congress, to be presently noticed, which, by its title, is 
intended to "limit the effect of the regulations of commerce between 
the several states and with foreign countries in certain cases," and 
which makes all intoxicating liquors transported into any state or ter- 
ritory subject to the operation and effect of its laws. So that, at the 
present time, liquors imported from abroad, and remaining in the 
importer's hands in the original packages, cannot be sold in any state, 
except by the persons and in the manner authorized by its statutes, 
unless where such statutes make an exception in favor of goods in 
that condition. 
§ 69. The Decision in the License Cases. 
The rule established in the leading case to which we have referred, 
applied, in view of the facts of that case, only to goods imported 
from foreign countries. But congress also has power to regulate 
commerce among the several states. The question was therefore 
presented whether the importer of property from one state into 
another enjoyed the same immunity as the importer of foreign 
articles, or at what point the police regulations of a state might 
attach to goods coming into its borders from a sister state. Not- 
withstanding a dictum of Chief Justice Marshall to the effect that the 
same principles should apply to both cases,12 this question was 
regarded as remaining open until the decision of the License Cases 
in 1847. Of the group of three cases heard and decided together 
and reported under this name, two were merely in affirmance of rules 
already settled. The one which is of importance for our present 
purpose is the case of Pierce v. Neiv Hampshire.13 In this con- 
troversy the inquiry was as to the constitutionality of a law of New 
Hampshire, prohibiting the sale of liquor without license, in its 
application to a case where the article sold was a barrel of American 
gin, purchased in Boston, and carried coastwise to a landing in New 
an actual unauthorized sale were com- 
pleted, when the intent to make such a 
sale is avowed. Such * aid and com 
fort' to violators of the internal regu- 
lations of a state is not within the 
spirit of the regulations of foreign com- 
merce. " 
12 Brown v. Maryland, 12 Wheat. 419, 
449. 
13 5 How. 504. 
91 [Ch. 4 
§ 69 
LAW OF INTOXICATING LIQUORS. 
Hampshire, and there sold by the importer in the same barrel. It 
was adjudged that the state law might validly apply to a sale under 
these circumstances, and that, in such application, it was not incon- 
sistent with the provisions of the federal constitution. The grounds 
of this decision were summed up by Chief Justice Taney, in his 
opinion in the case, as follows: "Upon the whole, the law of New 
Hampshire is in my judgment a valid one. For although the gin 
sold was an import from another state, and congress have clearly 
the power to regulate such importations, under the grant of power 
to regulate commerce among the several states, yet, as congress has 
made no regulation on this subject, the traffic in the article may be 
lawfully regulated by the state as soon as it is landed in its territory, 
and a tax imposed upon it, or a license required, or a sale altogether 
prohibited, according to the policy which the state may suppose to be 
its interest or duty to pursue."14 
It should be observed that, in this decision, the learned judges 
carefully pointed out that the conclusions reached were not incon- 
sistent with the rule in Brown v. Maryland, and fully explained the 
ground of the distinction. That ground was, that the earlier case 
involved an article of foreign commerce, on which congress had already 
legislated, authorizing its importation, while the theory of the decis- 
ion in the case at bar was that, so far as concerned interstate com- 
merce, congress had not yet acted, and, in its silence, the states were 
at liberty to make regulations not repugnant to any existing law or 
treaty. Thus the Chief Justice, at page 578, observes: "The pres- 
ent case differs from Brown v. Maryland in this, that the former 
[latter] was one arising out of commerce with foreign nations, which 
congress had regulated by law, whereas the present is a case of com- 
merce between two states, in relation to which congress has not 
exercised its power." And Mr. Justice McLean, at page 595, 
expresses himself as follows: "Neither the facts nor the reasons of 
that case apply to a person who transports an article from one state 
to another. In some cases the transportation is only made a few 
feet or rods, and generally it is attended with little risk, and no duty 
14 License Cases, 5 How. 504, 586. 
92 Ch. 4] 
§ 70 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
is paid to the federal or state government. And why should prop- 
erty, when conveyed over a state line, be exempt from taxation which 
is common to all other property in the state? There is no act of 
congress to which the license law, as applied to this case, can be 
held repugnant. And the general power in congress ' to regulate 
commerce among the several states,' under the restrictions in the 
constitution, cannot affect the validity of the law. The constitution 
prohibits import duties on a commercial interchange of commodities 
between the states. The tax in the form of a license, as here pre- 
sented, counteracts no policy of the federal government, is repugnant 
to no power it can exercise, and is imposed by the exercise of an 
undoubted power in the state. The license system is a police regu- 
lation, and, as modified in the state of New Hampshire, was designed 
to restrain and prevent immoral indulgences, and to advance the 
moral and physical welfare of society. The owner of the property, 
who purchased it in Massachusetts and transported it to New Hamp- 
shire, is not an importer in the sense in which that term is used in 
the case of Brown v. Maryland. And there is nothing in the general 
reasoning of that case, or in the facts, which can bring into doubt 
the constitutionality of the New Hampshire law." 
§ 70. Interstate Commerce and the Police Power. 
The decision rendered in the License Cases was accepted as a cor- 
rect exposition of the constitutional principle involved, and was acted 
upon without question or demurrer for many years. It came to be 
the settled doctrine of the states that intoxicating liquors transported 
from one state into another were subject to the laws of the latter state 
relating to their sale, to the same extent as any other intoxicating 
liquors already rightfully within the state, and could not be sold at 
the place of destination, either in the original packages or other 
form, except as the laws of the state might prescribe; and that the 
police power of the state, so exercised, did not infringe on the power 
delegated to congress to regulate interstate commerce.16 It was the 
16 State v. Fulker, 43 Kans. 237, 22 Pac. 
Rep. 1020; Collins v. Hills, 77 Iowa, 
181, 41 N. W. Rep. 571; Grusendorf v. 
Howat, 77 Iowa, 187, 41 N. W. Rep. 573; 
93 [Ch. 4 
§ 71 
LAW OF INTOXICATING LIQUORS. 
theory that laws passed by the individual states, under their general 
authority over internal concerns, might incidentally affect foreign and 
interstate commerce, without conflicting with the federal constitu- 
tion, provided they did not discriminate against such commerce, 
and were not inconsistent with the legislation of congress.16 
§ 71. Importation from Another State-Bowman v. Rail- 
way. 
In 1888 the United States supreme court was called upon to con- 
sider the validity of a law of Iowa forbidding any common carrier 
to bring within the state, for any person or persons or corporation, 
any liquor from any other state or territory, without first having 
been furnished with a certificate under the seal of the county auditor 
of the county to which such liquor was to be transported, or was con- 
signed for transportation, certifying that the consignee was author- 
ized to sell liquor in such county. This statute was held uncon- 
stitutional as an attempt to regulate interstate commerce.17 The 
ground of this decision was that the transportation of freight or of 
the subjects of commerce, for the purpose of exchange or sale, is 
beyond all question a constituent of commerce itself. It was 
explained that where state laws alleged to have been regulations of 
commerce among the states were sustained, they were laws which 
related to bridges or dams across streams, wholly within the state, 
or police or health laws, or to subjects of a kindred nature, not 
strictly of commercial regulation. But the transportation of pas- 
sengers or of merchandise from one state to another is in its nature 
national, admitting of but one regulating power; and it was to guard 
against the possibility of commercial embarrassments, which would 
result if one state could directly or indirectly tax persons or prop- 
erty passing through it, or prohibit particular property from entrance 
Leisy v. Hardin, 78 Iowa, 286, 43 N. 
W. Rep. 188; State v. Zimmerman, 78 
Iowa, 614, 43 N. W. Rep. 458; State v. 
Bowman, 79 Iowa, 566, 44 N. W. Rep. 
813. 
16 State v. Newton, 50 N. J. Law, 534, 
14 Atl. Rep. 604. 
17 Bowman v. Chicago & N. W. Ry. 
Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 
Waite, C. J., and Harlan and Gray, JJ., 
dissenting. 
94 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 71 
into the state, that the power of regulating commerce among the states 
was conferred upon the federal government. This decision concerned 
itself only with the right of interstate transportation. And the question 
as to the right of the consignee, after such transportation had brought 
the goods to his hands, to sell the same in the original pack- 
ages, was in terms reserved. Moreover, it was strongly intimated 
that the rule now announced was not inconsistent with the doc- 
trine in the License Cases, but related to an essentially distinct matter. 
Nevertheless, it was an unmistakable indication of the direction 
in which the court was tending, and foreshadowed the decision, 
soon thereafter to be made, in which the License Cases were over- 
ruled, and which followed from it almost as a logical necessity. 
It was of course accepted by the state courts as authoritative, and 
laws similar to that of Iowa were in other states pronounced 
invalid.18 But another consequence followed. The liquor-dealers, 
never slow to make an ell out of an inch of legal concession, found 
a means of turning the new decision to their advantage. It was not 
long before a case arose in Iowa in which it appeared that a railroad 
company, receiving packages of liquor consigned by a person with- 
out the state to a person within it, was assisting the consignee in 
carrying on his business of selling whisky, by holding the various 
packages for from six to fifteen days after their arrival, without 
attempting to collect the freight-bills, each of which was only a few 
cents, and allowing them to be taken away separately by the con- 
signee, when the charge on each package was collected. But the 
courts put an end to this practice, by holding that the company, 
after such a lapse of time, was no longer a carrier, but became a 
warehouseman; that the liquors then lost their character as articles 
of interstate commerce, and, if intended for illegal sale, might be 
seized in the freight depot and confiscated, under the law of the 
state; and that the company's complicity in the illegal design would 
prevent it from setting up its lien for unpaid charges to defeat the 
seizure and condemnation.19 
38 State v. Stilsing, 52 N. J. Law, 517, 
20 Atl. Rep. 65. 
19 State v. Creeden, 78 Iowa, 556, 43 
N. W. Rep. 673. In this case Beck, J., 
observed: "A carrier is a servant of 
commerce, and is protected under con- 
95 § 72 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
§ 72. The " Original Package " Decision. 
Two years after the decision of the United States supreme court 
adverted to in the preceding section, (that is, in 1890,) the same 
tribunal was brought again to the consideration of state liquor laws 
in connection with the regulation of commerce. And a decision was 
promulgated which, although it followed logically in the line set by 
the latest rulings of the court, was received by the country with no 
little surprise, inasmuch as it overruled the License Cases, and thereby 
destroyed a doctrine regarded as settled for nearly half a century, 
and which was followed by such important and far-reaching results as 
to demand the interposition of congress. We refer to the case of Leisy 
v. Hardin,20-popularly known as the "original package decision." 
This was an action of replevin, for certain kegs and cases of beer, begun 
in an inferior court of Iowa against a constable, who had seized the 
property under a search-warrant issued by a justice of the peace, 
pursuant to a statute of that state, which prohibits the sale, the 
keeping for sale, or the manufacture for sale, of any intoxicating 
liquor (including malt liquor) for any purpose whatever, except for 
pharmaceutical, medicinal, chemical, or sacramental purposes, and 
then only under an annual license which may be granted by the dis- 
trict court of the proper county to applicants who are citizens of 
Iowa and residents of the county, and otherwise qualified. The plain- 
tiffs were citizens and residents of Illinois, engaged as brewers in 
manufacturing beer in that state, and in selling it in Illinois and 
stitutional provisions for the regulation 
of commerce in the discharge of all the 
duties of a carrier recognized by the 
law. Regulations of commerce reach 
him while he is in the discharge of 
duties pertaining to commerce. When 
be ceases to be a carrier he is beyond 
the protection provided by regulations 
for commerce. If he ceases to be a 
carrier and becomes a warehouseman, 
he cannot be protected as a carrier. 
But counsel for defendant say that the 
goods became impressed with the char- 
acter of interstate commerce, and re- 
tained that character after they went 
into the custody of the warehouseman. 
In truth, commerce, so far as transpor- 
tation is concerned, ceased to have con- 
nection with the liquors when they 
ceased to be held by the carrier for 
transportation. After that they were 
held for storage. It surely will not be 
contended that the storage of goods 
was a continuation of the transporta- 
tion. They were stored because the 
transportation had ceased. " 
2° 135 U. S. 100, 10 Sup. Ct. Rep. 681. 
96 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 72 
Iowa. The beer in question was made by them in Illinois, and there 
put up by them in said kegs and cases, each keg being sealed and 
stamped, and each case being substantially made of wood and sealed 
with a metallic seal which had to be broken in order to open the 
case. These kegs and cases were sent by plaintiffs to a point in 
Iowa, and there sold and offered for sale by their agent, in a build- 
ing owned by one of them, and without breaking or opening the kegs or 
cases. The plaintiffs claimed protection under the federal constitution. 
But the courts in Iowa gave judgment for the defendant. The case 
being carried by writ of error to the United States supreme court, it 
was there held, by a majority of that court, that the statute in ques- 
tion 21 was unconstitutional and void in so far as it prohibited the sale 
of liquors by a foreign or non-resident importer in the packages in 
which they were brought from another state, being in conflict with 
that provision of the federal constitution which vests in congress the 
power to regulate commerce among the several states. 
The opinion of the majority was delivered by Mr. Chief Justice 
Fuller, who, after stating in general terms the nature and scope of 
the power to regulate interstate commerce, observed: "Whenever a 
particular power of the general government is one which must neces- 
sarily be exercised by it, and congress remains silent, this is not only 
not a concession that the powers reserved by the states may be exerted 
as if the specific power had not been elsewhere reposed, but on the 
contrary, the only legitimate conclusion is that the general government 
intended that power should not be affirmatively exercised, and the 
action of the states cannot be permitted to effect that which would be 
incompatible with such intention. Hence, inasmuch as interstate com- 
merce, consisting in the transportation, purchase, sale, and exchange 
of commodities, is national in its character, and must be governed by 
a uniform system, so long as congress does not pass any law to regu- 
late it, or allowing the states so to do, it thereby indicates its will 
that such commerce shall be free ^nd untrammeled. That ardent 
spirits, distilled liquors, ale, and beer are subjects of exchange, barter, 
21 Laws Iowa 1888, c. 71, repealing 
§ 1524 of the Code of Iowa, which al- 
lowed importers of foreign liquors to 
sell the same in the original packages 
in which they were imported. 
INTOX.LIQ. 7 
97 § 72 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
and traffic, like any other commodity in which a right of traffic exists, 
and are so recognized by the usages of the commercial world, the 
laws of congress, and the decisions of courts, is not denied. Being 
thus articles of commerce, can a state, in the absence of legislation 
on the part of congress, prohibit their importation from abroad or 
from a sister state ? or, when imported, prohibit their sale by the 
importer ? If the importation cannot be prohibited without the consent 
of congress, when does property imported from abroad, or from a sis- 
ter state, so become part of the common mass of property within a 
state as to be subject to its unimpeded control?" Referring next to 
one of the earliest decisions on the subject,22 the learned chief justice 
remarked that it was therein laid down "that the point of time when 
the prohibition ceases, and the power of the state to tax commences, 
is not the instant when the article enters the country, but when the 
importer has so acted upon it that it has become incorporated and 
mixed up with the mass of property in the country, which happens 
when the original package is no longer such in his hands; that the 
distinction is obvious between a tax which intercepts the import as 
an import on its way to become incorporated with the general mass 
of property, and a tax which finds the article already incorporated 
with that mass by the act of the importer; that, as to the power to 
regulate commerce, none of the evils which proceeded from the feeble- 
ness of the federal government contributed more to the great revolu- 
tion which introduced the present system than the deep and general 
conviction that commerce ought to be regulated by congress; that the 
grant should be as extensive as the mischief, and should comprehend 
all foreign commerce and all commerce among the states; that that 
power was complete in itself, acknowledged no limitations other than 
those prescribed by the constitution, was co-extensive with the sub- 
ject on which it acts, and not to be stopped at the external boundary 
of a state, but must be capable of entering its interior; that the right 
to sell any article imported was an inseparable incident to the right 
to import it; and that the principles expounded in the case applied 
equally to importations from a sister state." It was next admitted 
98 
22 Brown v. Maryland, 12 Wheat. 419. Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 72 
that the precise question before the court had not been ruled in the 
earlier cases referred to, but "we think it was virtually involved and 
answered, and that this is demonstrated, among other cases, in Bow- 
man v. Bailway Co." 23 In that decision, "while the determination 
of whether the right of transportation of an article of commerce from 
one state to another includes by necessary implication the right of 
the consignee to sell it in unbroken packages at the place where the 
transportation terminates was in terms reserved, yet the argument 
of the majority conducts irresistibly to that conclusion." Here the 
learned chief justice proceeded to review the case mentioned at some 
length, stating its doctrine and reasoning, and then adverted to the 
decision in Pierce n. New Hampshire.24 "In that case," he said, "the 
defendants had been fined for selling a barrel of gin in New Hamp- 
shire which they had bought in Boston, and brought coastwise to 
Portsmouth, and there sold in the same barrel and in the same con- 
dition in which it was purchased in Massachusetts, but contrary to 
the law of New Hampshire in that behalf. The conclusion of the 
opinion of Mr. Chief Justice Taney is in these words: 'Upon the 
whole, therefore, the law of New Hampshire is in my judgment a 
valid one; for although the gin sold was an import from another 
state, and congress have clearly the power to regulate such importa- 
tions, under the grant of power to regulate commerce among the sev- 
eral states, yet, as congress has made no regulation on the subject, 
the traffic in the article may be lawfully regulated by the state as 
soon as it is landed in its territory, and a tax imposed upon it, or a 
license required, or the sale altogether prohibited, according to the 
policy which the state may suppose to be its interest or duty to pur- 
sue.' . . . But conceding the weight properly to be ascribed 
to the judicial utterances of this eminent jurist, we are constrained 
to say that the distinction between subjects in respect of which there 
can be of necessity only one system or plan of regulation for the 
whole country, and subjects local in their nature, and, so far as 
relating to commerce, mere aids, rather than regulations, does not 
appear to us to have been sufficiently recognized by him in arriving at 
23 125 U. S. 465, 8 Sup. Ct. Rep. 869, 
1062. 
24 5 How. 504. 
99 § 72 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
the conclusions announced. That, distinction has been settled by 
repeated decisions of this court, and can no longer be regarded as 
open to re-examination. After all, it amounts to no more than draw- 
ing the line between the exercise of power over commerce with for- 
eign nations and among the states and the exercise of power over 
purely local commerce and local concerns. The authority of Pierce 
v. New Hampshire, in so far as it rests on the view that the law of 
NewT Hampshire was valid because congress had made no regulation 
on the subject, must be regarded as having been distinctly over- 
thrown by the numerous cases hereinafter referred to. The doctrine 
now firmly established is, as stated by Mr. Justice Field, in Bowman 
v. llailway Co.,25 ' that where the subject upon wdiich congress can 
act under its commercial power is local in its nature or sphere of 
operation, such as harbor pilotage, the improvement of harbors, the 
establishment of beacons and buoys to guide vessels in and out of 
port, the construction of bridges over navigable rivers, the erection 
of wharves, piers, and docks, and the like, which can be properly 
regulated only by special provisions adapted to their localities, the 
state can act until congress interferes and supersedes its authority; 
but where the subject is national in its character, and admits and 
requires uniformity of regulation, affecting alike all the states, such 
as transportation between the states, including the importation of 
goods from one state into another, congress can alone act upon it 
and provide the needed regulations. The absence of any law of con- 
gress upon the subject is equivalent to its declaration that commerce 
in that matter shall be free. Thus the absence of regulations as to 
interstate commerce with reference to any particular subject is taken 
as a declaration that the importation of that article into the states 
shall be unrestricted. It is only after the importation is completed, 
and the property imported is mingled with and becomes a part of the 
general property of the state, that its regulations can act upon it, 
except in so far as may be necessary to insure safety in the disposi- 
tion of the import until thus mingled.' The conclusion follows that, 
as the grant of the power to regulate commerce among the states, so 
100 
25 125 U. S. 465, 507, 8 Sup. Ct. Rep. 869, 1062. Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 72 
far as one system is required, is exclusive, the states cannot exercise 
that power without the assent of congress, and, in the absence of legis- 
lation, it is left for the courts to determine when state action does or 
does not amount to such exercise; or, in other words, what is or is 
not a regulation of such commerce. When that is determined, con- 
troversy is at an end. Illustrations exemplifying the general rule are 
numerous." Hereupon the court proceeded to cite, in more or less 
detail, the authorities which we have collected in the margin,26 and 
then continued as follows: "The plaintiffs in error are citizens of 
Illinois, are not pharmacists, and have no permit, but import into Iowa 
beer which they sell in original packages, as described. Under our 
decision in Bowman v. Hallway Co., supra, they had the right to import 
this beer into that state, and in the view which we have expressed 
they had the right to sell it, by which act alone it would become 
mingled in the common mass of property within the state. Up to that 
point of time, we hold that, in the absence of congressional permis- 
sion to do so, the state had no power to interfere by seizure, or any 
other action, in prohibition of importation and sale by the foreign 
or non-resident importer." 
It must be added, however, that the force of this decision, as an 
authority on the general subject, was much weakened by an extremely 
able and cogently reasoned dissenting opinion, written by Mr. Justice 
Gray, and concurred in by Messrs. Justices Harlan and Brewer. 
Their disagreement from the opinion of the majority was based 
mainly upon three grounds. First, that the decision in the License 
26 State Freight Tax, 15 Wall. 232; 
Henderson v. Mayor, 92 U. S. 259; Rail- 
road Co. v. Husen, 95 U. 8. 465; Cook 
v. Pennsylvania, 97 U. S. 566; Railway 
Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 
Rep. 4; Robbins v. Taxing Dist., 120 U. 
S. 489, 7 Sup. Ct. Rep. 592; County of 
Mobile v. Kimball, 102 U. S. 691; Esca- 
naba Co. v. Chicago, 107 U. S. 678, 2 
Sup. Ct. Rep. 185; Transportation Co. 
v. Parkersburg, 107 U. S. 691,2 Sup. Ct. 
Rep. 732; Brown v. Houston, 114 U. S. 
622, 5 Sup. Ct. Rep. 1091; Morgan's S. 
S. Co. v. Board of Health, 118 U. S. 455, 
6 Sup. Ct. Rep. 1114; Smith v. Alabama, 
124 U. S. 465, 8 Sup. Ct. Rep. 564; Rail- 
way Co. v. Alabama, 128 U. S. 96, 9 Sup. 
Ct. Rep. 28; Kimmish v. Ball, 129 U. 8. 
217, 9 Sup. Ct. Rep. 277; Welton v. Mis- 
souri, 91 U. S. 275; Walling v. Michi- 
gan, 116 U. S. 446, 6 Sup. Ct. Rep. 454; 
Patterson v. Kentucky, 97 U. S. 501; 
Webber v. Virginia, 103 U. S. 344; Mug- 
ler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 
Rep. 273; Bartemeyer v. Iowa, 18 Wall. 
129; Beer Co. v. Massachusetts, 97 U. 
S. 25; Foster v. Kansas, 112 U. S. 201, 5 
Sup. Ct. Rep. 8; Kidd v. Pearson, 128 
U. S. 1, 9 Sup. Ct. Rep. 6. 
101 § 73 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
Cases was not only right in itself, but sound and impregnable in its 
determination of the constitutional questions involved; that it had 
never been overruled, but, on the contrary, was the starting-point of 
a consistent and interwoven chain of decisions reaching from that 
day to this; and that its authority was directly in point, as to the 
case at bar, and practically decisive of it. Second, that the power 
to regulate or prohibit the manufacture or sale of intoxicating liquors 
appropriately belongs, as a branch of the police power, to the legis- 
latures of the several states, and can be judiciously and effectively 
exercised by them alone, according to their views of public policy and 
local needs, and cannot practically, if it can constitutionally, be 
wielded by congress as part of a national and uniform system. 
Third, that the practical operation of the view held by the majority 
would be disastrous to the efforts of the various states to suppress or 
discourage the traffic in liquors, since a constant supply could be 
poured from one state into another, in "packages" of any size or 
description, and there sold, in defiance of state law, under the pro- 
tection of the constitution as thus interpreted. 
§ 73. Cases Following Leisy v. Hardin. 
The doctrine thus established by the supreme federal tribunal was 
of course accepted as authoritative by the state courts, and the rule 
was speedily established that an importer of intoxicating liquors, into 
any state from any other state or country, could, by himself or agent, 
sell such liquors so long as they remained in the unbroken packages 
in which they existed during their transportation, without regard to 
any laws of the state into which such liquors were imported.27 In 
Massachusetts, where liquor was shipped by non-residents to their 
agent in Boston, under a contract which he had made for its sale, 
and of which he had notified them, and the agent, upon its arrival, 
caused the liquor to be delivered to the purchasers in the original 
packages in which it was shipped, it was held that an action was 
maintainable for the price, although the importer did not have the 
27 State v. Winters, 44 Kans. 723, 25 46 N. W. Rep. 1063; State v. Coonan, 
Pac. Rep. 235; State v. Pfleagor, (Iowa,) (Iowa,) 48 N. W. Rep. 921. 
102 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 73 
license to sell required by law.28 So where an original package of 
intoxicating liquors was transported by rail from another state, and 
upon being unloaded upon the depot platform, and before delivery to 
the consignee, was seized under a search-warrant, it was held that the 
shipment was a lawful act of interstate commerce, and the liquors 
were not liable to seizure under the state laws.29 The jurisdiction of 
the federal courts was also invoked by persons who were seeking to take 
advantage of the privilege thus secured to them, and who found 
themselves interfered with by attempts to enforce the existing state 
laws against them. And those courts decided that they had the 
power to enjoin proceedings by a prosecuting attorney to prevent the 
agents of a non-resident importer from selling liquors in the original 
packages of importation.30 Interesting questions also arose as to the 
power of the federal courts to release persons so circumstanced, from 
arrest under state laws, on habeas corpus. In one case, the petitioner 
had been arrested for a violation of the liquor laws of Pennsylvania 
and committed for trial. He was brought before the federal court 
on habeas corpus, and, at the hearing, undertook to show that the 
sale of liquor charged against him as a criminal offense was a sale 
made by him as the agent of an Ohio brewing company, and the 
liquor in question was manufactured by said company in Ohio, and 
imported into Pennsylvania, and there sold in the original and 
unbroken packages, and he alleged these facts as ground for his dis- 
charge from custody. But the court (Acheson, J.,) pointed out that 
the constitutionality of the laws of Pennsylvania brought in question, 
as they affected interstate commerce, could be tested by the prisoner 
upon his trial in the state court, and his defense there made, and 
added: "It is not to be doubted that that court will recognize the 
binding force upon all judicial tribunals, federal and state, of the 
decisions of the supreme court of the United States in the cases of 
Leisy n. Hardin31 and Lyng v. Michigan,32 and give to him the full 
28 Carstairs v. O'Donnell, (Mass.)28 N. 
E. Rep. 271. 
29 State v. Carrick, (Iowa,) 48 N. W. 
Rep. 808; State v. Intoxicating Liquors, 
(Me.) 21 Atl. Rep. 840. Compare Lemp 
v. Fullerton, (Iowa,) 48 N. W. Rep. 1034. 
30Schandler Bottling Co. v. Welch, 42 
Fed. Rep. 561; Tuchman v. Welch, Id. 
548. See Woolstein v. Welch, Id. 566. 
31185 U. S. 100, 10 Sup. Ct. Rep. 681. 
32135 U. S. 161, 10 Sup. Ct. Rep. 725. 
103 § 74 
[Ch. 4 
LAW OF INTOXICATING LIQUORS. 
benefit of those decisions." The application was therefore refused.33 
But in a case in the federal circuit court for the district of Kansas, 
where the facts were almost precisely similar, Caldwell, J., discharged 
the eleven persons who had petitioned that court for relief on habeas 
corpus, holding that as they had a right, under the constitution as 
interpreted by the supreme court, to make the sales for which they 
were arrested, any imprisonment of them for doing that act was, in 
the language of the habeas corpus act, "in violation of the constitution 
of the United States," and illegal, and that the court had jurisdiction, 
and was bound, to discharge any person so illegally held in custody.34 
§ 74. Effects of this Decision. 
The decision in the case of Leisy v. Hardin-that the state of the 
law was such as to allow importers to sell in original packages with- 
out regard to the laws of the state-was followed by immediate, wide- 
spread, and most pernicious results. Its effect, as had been foreseen 
by some of the judges, was to practically annul the efforts of certain 
of the states to suppress the traffic in intoxicating liquors. The 
brewers and distillers, recognizing the extent of the protection afforded 
to them by this construction of the law, hastened to establish depots 
and agencies in states foreign to their own, and especially those where 
prohibition or stringent licensing provisions were in force, and there 
offered for sale their products in barrels, kegs, cases, and even small 
bottles. Several portions of the country, where the greatest advances 
towards the entire suppression of the traffic had previously been made, 
were at once populated with "original package saloons," and thereby 
deluged with intoxicants, and the officers of the law found their ener- 
gies paralyzed by the claim of immunity under the constitution. 
Various appeals were made to the courts to remedy these gross abuses, 
and they exerted their jurisdiction to do what was possible towards 
checking the obnoxious traffic. In the first place, they recognized 
and announced the fact that although the state statutes, regulating 
the sale of liquor, might be so general in their terms as to cover sales 
33 United States v. Fiscus, 42 Fed. 
Rep. 395. 
34 In re Beine, 42 Fed. Rep. 545. 
104 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 74 
in the original packages of importation, and therefore, under the decis- 
ion of the supreme court, would be in contravention of the constitu- 
tion, yet that decision did not render them wholly null and void, but 
they were still valid and operative in their application to all other 
sales.35 Next the courts were vigilant to restrict the privilege of sell- 
ing in original imported packages to such persons as were honestly 
and in good faith entitled to it. It was held that when a sale of 
intoxicating liquors was admitted or proved to have been made by 
defendants, before they could avail themselves of the protection 
afforded by the interstate commerce clause and its recent interpreta- 
tion, they must show (1) that they were foreign importers or the 
agents of a foreign importer; (2) that as such importers or agents 
they received an importation of liquors from another state or a for- 
eign country; (3) that they were, as such importers or agents, sell- 
ing this importation by the original unbroken package in which it 
was imported; (4) that they were not making their house of business 
a tippling concern for the rendezvous of persons, bringing it within 
the police power of the state to declare it a nuisance.36 Where they 
claimed to be agents of foreign importers, the bona fides of their 
agency was considered a question to be referred to the jury.37 And 
where, in such a case, the defendant failed to produce any contract 
of agency, or the testimony of the importer, or any other evidence of 
the alleged agency, it was held that the jury were justified in finding 
that the defense was not set up in good faith.38 The courts did not 
feel justified in taking the size of the package as any criterion of the 
lawfulness of its sale.39 But they insisted that it could be sold only 
in the form and shape in which it was imported. For instance, a 
sale of liquor by the bottle, by one who imported such bottles of liq- 
uor in boxes with closed tops, which were broken open, was adjudged 
unlawful.40 Finally, it was held that the state laws prohibiting the 
35 State v. Kibling, (Vt.) 22 Atl. Rep. 
613; Comm. v. Gagne, (Mass.) 26 N. E. 
Rep. 449. 
36 State v. Chapman, (S. Dak.) 47 N. 
W. Rep. 411. 
37 Comm. v. Bishman, 138 Pa. St. 639, 
21 Atl. Rep. 12. 
38 Comm. v. Pendergast, 138 Pa. St. 
633, 21 Atl. Rep. 12. 
39 In re Beine, 42 Fed. Rep. 545. 
40 Smith v. State, (Ark.) 15 S. W. Rep. 
882. 
105 § 75 
I.AW OF INTOXICATING LIQUORS. 
[Ch. 4 
sale of liquor to minors and habitual drunkards were applicable to 
sales in original packages by the importer; such a construction, it 
was thought, did not render such laws an interference with interstate 
commerce.41 
§ 75. What Constitutes an Original Package. 
As many unscrupulous persons sought to take an improper advan- 
tage of the existing state of the law, the vigilance of the state authori- 
ties was often successful in detecting and punishing frauds and eva- 
sions, especially where the article was sold in such a shape that it 
could not strictly be considered an "original package." As already 
stated, the courts were unwilling to say that the size of the package 
had anything to do with the question of its protection under federal 
law. In a case where boxes containing a single bottle of liquor were 
shipped singly and separately as so many distinct packages it was 
said: "It is not perceived why, in the absence of a regulation by con- 
gress to the contrary, the importer may not determine for himself 
the form and size of the packages he puts up for export. The idea 
that small packages of liquor cannot be treated as original packages, 
because they are small, springs from the conviction back of it that 
liquor in any form, or in any sized package, is not a legitimate sub- 
ject of commerce. That question is put at rest by the decision of 
the United States supreme court, until congress shall act. As long 
as packages of liquor in any form or size may lawfully be sold by 
the importer or his agent in a prohibition state, the size of the pack- 
age is not of much consequence."42 But in several cases, where bot- 
tles of whisky or beer were each sealed up in a paper wrapper, and 
closely packed together in uncovered wooden boxes furnished by the 
importer, and these wooden boxes were marked to the address of 
agents, and shipped from one state to another, it was held that the 
wooden boxes, and not the bottles, constituted the original packages.43 
41 Comm. v. Zelt, 138 Pa. St. 615, 21 
Atl. Rep. 7: Comm. v. Silverman, 138 
Pa. St. 642, 21 Atl. Rep. 13. 
42 In re Beine, 42 Fed. Rep. 545. 
43Keith v. State, (Ala.) 8 South. Rep. 
353; Harrison v. State, (Ala.) 10 South. 
Rep. 30; State v. Chapman, (S. Dak.)47 
N. W. Rep. 411; In re Harmon, 43 Fed. 
Rep. 372; Allen v. Black, Id. 228; Comm, 
v. Swihart, 138 Pa. St. 629, 21 Atl. Rep. 
11. 
106 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 77 
But where the boxes were furnished by the carrier, and fastened to 
the car, so as virtually to become a part of it, the bottles separately 
wrapped and directed were considered the original packages.44 
§76. Enactment of the Wilson Law. 
Neither the courts of justice nor the other state authorities had 
power effectively to remedy the gross abuses above described. But 
it had been strongly hinted by the supreme court that relief might 
be sought in the halls of congress. Application was therefore 
made in that quarter and with such wide-spread and genuine impor- 
tunity that congress was moved to activity, and enacted a statute, 
commonly called the "Wilson law," directed against the evils com- 
plained of, which was approved August 8th, 1890,-within four 
months of the decision of the supreme court which brought about 
this state of affairs. Its terms are as follows: "That all fermented, 
distilled, or other intoxicating liquors or liquids transported into any 
state or territory or remaining therein for use, consumption, sale, or 
storage therein, shall upon arrival in such state or territory be sub- 
ject to the operation and effect of the laws of such state or territory 
enacted in the exercise of its police powers to the same extent and 
in the same manner as though such liquids or liquors had been pro- 
duced in such state or territory, and shall not be exempt therefrom 
by reason of being introduced therein in original packages or other- 
wise." 45 
§ 77. Constitutionality of Wilson Law. 
The constitutionality of the statute recited in the preceding sec- 
tion was assailed, soon after its enactment, on the ground that, 
44 Keith v. State, (Ala.) 8 South. Rep. 
353. In a case in Iowa it was held 
that a person who keeps a saloon with 
bar and fixtures, receives as original 
packages bottles of beer and whisky, 
and sells the same over his bar to cus- 
tomers who destroy the seals or wire 
on the bottles, pull the corks, pour the 
contents into glasses on the bar, drink 
the same, and leave the bottles on the 
bar, is a seller of the contents of orig- 
inal packages, and not the original 
packages themselves. Hopkins v. Lew- 
is, (Iowa,) 51 N. W. Rep. 255. 
45 Acts of 51st Congr., 1st Sess., c. 728, 
p. 313. 
107 § 77 
[Ch. 4 
LAW OF INTOXICATING LIQUORS. 
instead of being an exercise by congress of its power to regulate inter- 
state commerce, it was an unlawful delegation of that power to the 
several states. This contention, however, was not sustained by the 
courts. It was held that the act in question simply defines the time 
when imported liquors shall become subject to state control, and gives 
no authority to the states to legislate upon commerce. Thus it was 
said: "The act declares that intoxicating liquors shall, upon arrival 
in the state or territory, be subject to the operation of the police pow- 
ers of the state. In the exercise of the constitutional power to regu- 
late foreign and interstate commerce, congress has declared when 
such imported property shall become subject to the state laws. The 
states are not authorized to declare when such importations shall 
become subject to state control, nor can the states in any manner 
change or affect the enactment made by congress upon that subject. 
Congress can at any time change or abrogate the enactment in ques- 
tion, and it is clearly a constitutional exercise of the power conferred 
upon congress. It is apparent to every one that at some time, or 
upon the happening of some event, imported property loses that char- 
acter and becomes subject to the laws of the state, and it is for con- 
gress, which possesses the power to regulate commerce, to define the 
time or event which shall have the effect of subjecting importations 
to state control, and this is what is done by the Wilson bill in regard 
to intoxicating liquors. "46 In course of time this question came before 
the supreme court of the United States, and it was there held that 
the commercial clause in the constitution did not guaranty the abso- 
lute freedom of interstate commerce, and therefore the statute in ques- 
tion was not an unconstitutional restriction upon it. And further, 
that the effect of the act was to subject to the police power of the 
state certain subjects which theretofore were excluded from its oper- 
ation by reason of their being articles of interstate commerce, and that 
the act was not a delegation to the states of the power to regulate 
commerce, nor an adoption of state laws as such regulation.47 
46 In re Spickler, 43 Fed. Rep. 653; In 
reNwa Vliet, Id. 761; State v. Fraser, 
(N. Dak.) 48 N. W. Rep. 343. 
«In re Rahrer, 140 U. S. 545, 11 Sup. 
Ct. Rep. 865. 
108 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 78 
§ 78. Operation and Effect of Wilson Law. 
There was another question which arose in connection with the 
Wilson law, and which, for a time, threatened to cause very serious 
difficulty. This was the question whether its effect was to subject 
imported liquors immediately to the existing state laws, or whether 
additional legislation by the states was needed to effect its purpose. 
A decision was rendered by one of the federal circuit courts that the 
act was permissive only, and not mandatory upon the states; that 
the previous state laws, in their application to imported liquors, were 
absolutely void by reason of their unconstitutionality, and could not 
be brought to life by the subsequent removal of the restriction ; that 
in effect, therefore, at the time of the passage of the Wilson bill, there 
was no law in any state to prohibit the sale of imported liquors in 
the original packages; and that, unless and until such a law were 
enacted in any given state, such sales might continue with impunity.48 
This ruling, however, was not generally approved by either the fed- 
eral or state courts. On the contrary, the other decisions were all to 
the effect that, immediately upon the passage of the act of congress, the 
existing state laws took effect upon that class of articles from which 
they were before excluded, and required no re-enactment.49 Still, the 
doubt raised was sufficiently serious to cause much anxiety in several 
quarters. And it is on record that one state - Vermont-actually 
went so far as to re-adopt all her previous liquor legislation by a gen- 
eral re-enacting statute.60 But when the decision which had occasioned 
48 In re Rahrer, 43 Fed. Rep. 556, Phil- 
ips and Foster, JJ. 
49 In re Spickler, 43 Fed. 653; In re 
Van Vliet, Id. 761; Comm. v. Calhane, 
(Mass.) 27 N. E. Rep. 881; State v. Fra- 
ser, (N. Dak.) 48 N. W. Rep. 343. 
50 Acts Vt. 1890, No. 40. This act, the 
re-enacting statute, was expressed in 
the following terms: "Whereas doubts 
have been suggested as to the validity 
of the statutes of this state heretofore 
enacted relating to intoxicating liquors 
or liquids, as applied to such liquors or 
liquids when brought into the state un- 
der certain circumstances; and whereas 
it is expedient that the due administra- 
tion of justice be not hindered, de- 
layed, or thwarted by such doubts; 
therefore it is hereby enacted by the 
general assembly of the state of Ver- 
mont: Section 1. That the statutes of 
this state heretofore enacted,and which 
have not been repealed, and each and 
every part of the same, relating to the 
subject of intoxicating liquors or liq- 
uids, or offenses or proceedings having 
109 § 78 
LAW OF INTOXICATING LIQUORS. 
[Ch. 4 
the doubt came before the supreme federal tribunal, it was there 
reversed, and the question was finally put at rest. It was held that 
the decision in the "original package case" did not have the effect to 
annul the state laws, or make them absolutely void, and consequently 
their re-enactment was not necessary in order to make them imme- 
diately operative upon imported liquors after the passage of the Wil- 
son act.51 Some question was also made as to whether the act of 
congress withdrew federal obstruction to the operation of state laws 
in respect to liquors in original packages wdiich were in the state at 
the time of its passage, or only with respect to such liquors as should 
thereafter be imported. But it was held that "the terms of the enact- 
ment clearly enforce the former view, and limit the effect of the regu- 
lations of commerce between the states so as to admit of the operation 
of state regulations of the liquor traffic upon liquids and liquors in 
original packages which were in the state at the time of the passage 
of the act, as well as upon subsequent importations. The withdrawal 
relation to any such liquors or liquids, 
be, and the same are hereby, re-enacted, 
and are hereby declared to be of and to 
have full force and effect to every in- 
tent and purpose, in the same manner 
and with the same effect as if each and 
every such statute were herein repeated 
and set forth in detail. " 
61 In re Rahrer, 140 U. S. 545, 11 Sup. 
Ct. Rep. 865. In regard to the point 
mentioned, Fuller, C. J., observed: "It 
is said that by the decision in Leisy v. 
Hardin, [135 U. S. 100, 10 Sup. Ct. Rep. 
681,] similar state laws were held un- 
constitutional in so far as they prohib- 
ited the sale of liquors by the importer 
in the condition in which they had been 
imported. . . . This was far from 
holding that the statutes in question 
were absolutely void, in whole or in 
part, and as if they had never been en- 
acted. On the contrary, the decision 
did not annul the law, but limited its 
operation to property strictly within 
the jurisdiction of the state. . . . 
Congress did not use terms of permis- 
sion to the state to act, but simply re- 
moved an impediment to the enforce- 
ment of the state law in respect to im- 
ported packages in their original con- 
dition. created by the absence of a spe- 
cific utterance on its part. It imparted 
no power to the state not then possessed, 
but allowed imported property to fall 
at once upon arrival within the local 
jurisdiction. . , . This is not the 
case of a law enacted in the unauthor- 
ized exercise of a power exclusively 
confided to congress, but of a law 
which it was competent for the state to 
pass, but which could notoperate upon 
articles occupying a certain situation 
until the passage of the act of congress. 
That act in terms removed the obstacle, 
and we perceive no adequate ground 
for adjudging that a re-enactment of 
the state law was required before it 
could have the effect upon imported, 
which it had always had upon domes- 
tic, property. Jurisdiction attached, 
not in virtue of the law of congress, 
but because the effect of the latter was 
to place the property where jurisdiction 
could attach. " 
110 Ch. 4] 
LIQUOR LEGISLATION AND REGULATION OF COMMERCE. 
§ 79 
of federal regulations applies to all liquors 'transported'-not such 
only as shall be transported-'into the state, or remaining therein 
for use,' etc."62 
§79. Discrimination against Citizens and Products of 
Other States. 
We have already had occasion to examine into the validity of state 
liquor laws which made discriminations against the products or the 
citizens of other states. In an earlier section it was shown that a 
discrimination against goods coming from a sister state-as where 
the statute permits the sale of wine made from grapes grown within 
the state, but prohibits the sale of that coming from abroad-is not 
defensible as a police regulation, but is an unconstitutional restric- 
tion upon interstate commerce; and that the same objection applies, 
with equal force, to the case of a tax imposed by a state statute upon 
a business or occupation, which necessarily discriminates against the 
introduction and sale of the products of another state or against its 
citizens.63 The latest rulings of the United States supreme court are 
in affirmance of these principles.54 
62 Tinker v. State, (Ala.) 8 South. Rep. 
814. 
63 Supra, § 44, and cases cited. 
64 Lyng v. Michigan, 135 U. S. 161, 10 
Sup. Ct. Rep. 725. 
111 § 80 
LAW OF INTOXICATING LIQUOKB. 
[Ch. 5 
CHAPTER V. 
PROHIBITION. 
§ 80. Nature and Terms of Prohibitory Laws. 
81. Constitutionality of Prohibition. 
82. Abridgment of Rights of Citizenship. 
83. Taking Property without Due Process of Law. 
84. Impairing the Obligation of Contracts. 
85. Retrospective Effect of Prohibition. 
86. Regulation of Commerce. 
87. Conflict with United States Revenue Laws. 
88. Adoption of Constitutional Amendment. 
89. Property in Liquors under Prohibitory Laws. 
90. Repeal of Prior Laws by Adoption of Prohibition. 
§ 80. Nature and Terms of Prohibitory Laws. 
The system of liquor legislation known as "prohibition," now in 
force in several of the states, is the most stringent and severe of the 
various statutory plans by which it has been attempted to suppress 
the evils of intemperance. Instead of merely regulating or restrict- 
ing the sale and drinking of intoxicants, it professes to banish them 
entirely from the state, save for a few indispensable purposes. It 
makes intoxicating liquor an outlaw, and the sale or furnishing of it 
by one man to another a crime. To this end, a prohibitory law com- 
monly provides that no person within the state shall manufacture, 
keep for sale, sell, give, or furnish to another any intoxicating liquor. 
This is subject to the proviso that licensed druggists and town agents 
may sell for certain uses, generally specified as "medicinal, mechan- 
ical, scientific, and sacramental." And manufacturers' licenses are 
sometimes granted, under the condition that they may only sell, at 
wholesale, to such druggists and town agents. To secure the enforce- 
ment of these provisions, such acts as the following are made criminal: 
Sales by unlicensed persons for any purpose, and by holders of per- 
mits for any other than the excepted purposes; keeping liquor for 
illegal sale; maintaining a nuisance in the shape of a house kept for 
illegal sales of liquor; being a "common seller;" leasing a house to 
112 Ch. 5] 
PROHIBITION. 
§ 81 
be used as a liquor shop; advertising the sale of liquor as a beverage. 
Further to facilitate the enforcement of the law, there are provisions 
for warrants to search suspected places for contraband liquors and 
authorizing their seizure and confiscation; provisions for the abate- 
ment of nuisances; provisions invalidating contracts for the sale of 
liquor and authorizing the recovery of money paid under such con- 
tracts ; and provisions in regard to the evidence on prosecutions under 
the act, intended to aid in securing convictions. It will thus be seen 
that the terms of a prohibitory law are of the most drastic character. 
The system, for greater security against change, has been incorpo- 
rated into the constitutions of some of the states. In others, it is 
merely adopted by an act of the legislature. 
§ 81. Constitutionality of Prohibition. 
It may be stated, in general terms, as well settled by authority, 
that it is within the power of a state to absolutely prohibit the mam 
ufacture and sale, within its borders, of intoxicating liquors as a 
beverage, either by statute or constitutional enactment, and such pro- 
hibition is a lawful exercise of its police power and is not open to 
constitutional objection, either on considerations of natural right or 
of the specific limitations of state power? Laws of this character 
might be invalidated by peculiar and unlawful provisions. Thus, in 
Indiana, at an early day, a law was held to be unconstitutional which 
prohibited the manufacture of liquor, except for the government, to 
be sold by it as a medicine, and forbade its sale or use as a beverage 
by any private person. It was said that the government invades the 
faculties of industry possessed by individuals, when it attempts to 
'License Cases, 5 How. .504; Barte 
meyer v. Iowa, 18 Wall. 129; Beer Co. 
v. Massachusetts, 97 U. S. 25; Foster v. 
Kansas, 112 U. S. 201, 5 Sup. Ct. Rep. 
8; Mugler v. Kansas, 123 U. S. 623, 8 
Sup. Ct. Rep. 273; In re Brosnahan, 18 
Fed. Rep. 62; State v. Bradley, 26 Fed. 
Rep. 289; Metropolitan Board of Excise 
v. Barrie, 34 N. Y. 657; People v. Quant, 
2 Park. (N. Y.) 410; Perdue v. Ellis, 18 
Ga. 586; Anderson v. Comm., 13 Bush, 
485; Stickrod v. Comm., 86 Ky. 285, 5 S. 
W. Rep. 580; State v. Mugler, 29 Kan. 
252, 44 Am. Rep. 634; Jones v. People, 
14 Ill. 196; Santo v. State, 2 Iowa, 165, 
63 Am. Dec. 487; State v. Donehey, 8 
Iowa, 396; McLane v. Leicht, 69 Iowa, 
401, 29 N. W. Rep. 327; Jordan v. Dis- 
trict Court, 74 Iowa, 762, 38 N. W. Rep. 
430; Gordon v. State, 46 Ohio St. 607, 23 
N. E. Rep. 63; People v. Gallagher, 4 
Mich. 244. 
INTOX.LIQ. 8 
113 § 82 
LAW OF INTOXICATING LIQUORS. 
[Ch. 5 
appropriate to itself any particular branches of industry or any 
business which is not of a public and general character.2 This decis- 
ion may very possibly have been right on the particular facts. But, 
as above stated, the constitutionality of prohibitory laws framed on 
the lines we have already indicated, is now settled beyond all question. 
In Ohio, the constitution contains a peculiar provision that "no license 
to traffic in intoxicating liquors shall hereafter be granted in this 
state, but the general assembly may, by law, provide against the 
evils resulting therefrom." This clause, it is held, does not, by 
implication, prevent the enactment of prohibitory legislation.3 Hav- 
ing asserted the validity of such laws in general terms, we shall now 
proceed to take up the various arguments which have been urged 
against their constitutionality, and examine each in detail, in the 
light of the adjudged cases. 
§ 82. Abridgment of Rights of Citizenship. 
It has been argued that prohibitory legislation, since it denies to 
all persons, save the few excepted, the right to engage in the manu- 
facture or sale of intoxicants, is obnoxious to the provision of the 
fourteenth amendment that "no state shall make or enforce any law 
which shall abridge the privileges and immunities of citizens of 
the United States." But this contention is repudiated by the authori- 
ties. The liquor traffic is nowhere in this country recognized as a 
lawful business, except as permitted and regulated by positive law. 
It is not an avocation which every man has a natural right to pursue. 
It does not stand on the same level with such occupations as are use- 
ful to the community or beneficial to the trade and commerce of the 
country. On the contrary it is pernicious in its effects, and is prop- 
erly subject to regulation under the police power. It is in no sense, 
therefore, a privilege or immunity such as is secured by the consti- 
tution.4 As remarked by Mr. Justice Miller, "no case has held that 
2 Herman v. State, 8 Ind. 545. 
8 Gordon v. State, 46 Ohio St. 607, 23 
N. E. Rep. 63; Miller v. State, 3 Ohio 
St. 475. 
4 In re Hoover, 30 Fed. Rep. 51; Bar- 
temeyer v. Iowa, 18 Wall. 129; Barbier 
v. Connolly, 113 U. S. 27. 5 Sup. Ct. 
Rep. 357; Crowley v. Christensen, 137 
U. S. 86, 11 Sup. Ct. Rep. 13. 
114 Ch. 5] 
PROHIBITION. 
§ 83 
such a law was void as violating the privileges or immunities of citi- 
zens of a state or of the United States. If, however, such a proposi- 
tion is seriously urged, we think that the right to sell intoxicating 
liquors, so far as such a right exists, is not one of the rights growing 
out of citizenship of the United States, and in this regard the case 
falls within the principles laid down by this court in the Slaughter 
House Cases, [16 Wall. 36.]"6 
§ 83. Taking Property without Due Process of Law. 
The most serious and weighty objections to the validity of pro- 
hibitory legislation have been such as regarded its effect upon rights 
and property in existence at the time of its enactment. Such a law, 
as a rule, saves no privileges previously acquired, makes no excep- 
tion in favor of the disposition of liquor existing in the state at its 
passage, and although it practically destroys the value of such liq- 
uor, as also of breweries and distilleries then in operation, yet pro- 
vides no compensation for their owners. Yet it is settled, by the 
immense preponderance of authority, that if a state, by statute or 
constitutional provision, entirely prohibits the manufacture and sale 
of intoxicating liquors within its jurisdiction, such enactment is not 
constitutionally objectionable on the ground of its "depriving" persons 
affected of their "property without due process of law," notwith- 
standing its effect may be to destroy a business theretofore lawful, and 
seriously to impair the value of property held at the time and adapted 
to the continuance of such business, and that without compensation.6 
Though some slight doubt of the correctness of this view was 
6Bartemeyer v. Iowa, 18 Wall. 129, 
133. 
6 Mugler v. Kansas, 123 U. S. 623, 8 
Sup. Ct. Rep. 273; Kidd v. Pearson, 128 
U. S. 1, 9 Sup. Ct. Rep. 6; Tanner v. 
Alliance, 29 Fed. Rep. 196; Weil v. Cal- 
houn, 25 Fed. Rep. 865; Kessinger v. 
Hinkhouse, 27 Fed. Rep. 883; Savage 
v. Comm., 84 Va. 582, 5 S. E. Rep. 565; 
Menken v. Atlanta, 78 Ga. 668, 2 S. 
E. Rep. 559; Prohibitory Amendment 
Cases, 24 Kans. 700; Heck v. State, 44 
Ohio St. 536, 9 N. E. Rep. 305; Moore 
v. Indianapolis, 120 Ind. 483, 22 N. E. 
Rep. 424; McLane v. Leicht, 69 Iowa, 
401, 29 N. W. Rep. 327; Kaufman v. 
Dostal, 73 Iowa, 691, 36 N. W. Rep. 643; 
Drake v. Jordan, 73 Iowa, 707, 36 N. W. 
Rep. 653; Shear v. Bolinger, 74 Iowa, 
757, 37 N. W. Rep. 164; Cooley, Const. 
Lira. 584. 
115 § 83 
[Ch. 5 
LAW OF INTOXICATING LIQUORS. 
expressed in some of its earlier decisions,7 the supreme court of the 
United States has now explicitly adopted it, and the question must 
therefore be regarded as finally put at rest.8 So stands the law. 
Yet the application of this rule is sometimes productive of great hard- 
7 Bartemeyer v. Iowa, 18 Wall. 129, 
137, per Field. J. 
8Mugler v. Kansas, 123 U. 8. 623, 8 
Sup. Ct. Rep. 273. In this case the gen- 
eral question presented was, whether 
the prohibition statutes of Kansas of 
1881 and 188 < were in conflict with that 
clause of the fourteenth amendment 
which provides that "no state shall 
make or enforce any law which shall 
abridge the privileges or immunities of 
citizens of the United States; nor shall 
any state deprive any person of life, 
liberty, or property without due process 
of law." Mr. Justice Harlan, who de- 
livered the opinion of the court, after 
thus stating the question to be deter- 
mined, observed: "That legislation by 
a state prohibiting the manufacture 
within her limits of intoxicating liq- 
uors, to be there sold or bartered for 
general use as a beverage, does not 
necessarily infringe any right, privi- 
lege, or immunity secured by the con- 
stitution of the United States, is made 
clear by the decisions of this court, ren- 
dered before and since the adoption of 
the fourteenth amendment, to some of 
which, in view of the questions to be 
presently considered, it will be well to 
refer." The learned judge then pro- 
ceeded to review the License Cases, 5 
How. 504; Bartemeyer v. Iowa, 18 Wall. 
129; Beer Co. v. Massachusetts, 97 U. 
S. 25; and Foster v. Kansas, 112 U. 8. 
201, 5 Sup. Ct. Rep. 8, and continued: 
"It is, however, contended that al- 
though the state may prohibit the manu- 
facture of intoxicating liquors for sale 
or barter within her limits, for general 
use as a beverage, ' no convention or 
legislature has the right, under our form 
of government, to prohibit any citizen 
from manufacturing for his own use, 
or for export or storage, any article of 
food or drink not endangering or af- 
fecting the rights of others.' The argu- 
ment made in support of the first branch 
of this proposition, briefly stated, is, 
that in the implied compact between 
the state and the citizen, certain rights 
are reserved by the latter which are 
guarantied by the constitutional pro- 
vision protecting persons against being 
deprived of life, liberty, or property 
without due process of law, and with 
which the state cannot interfere; that 
among those rights is that of manu- 
facturing for one's use either food or 
drink; and that while, according to the 
doctrines of the commune, the state 
may control the tastes, habits, dress, 
food, and drink of the people, our sys- 
tem of government, based upon the in- 
dividuality and intelligence of the citi- 
zen, does not claim to control him, ex- 
cept as to his conduct to others, leaving 
him the sole judge as to all that only 
affects himself. 
"It will be observed that the proposi- 
tion, and the argument made in support 
of it. equally concede that the right to 
manufacture drink for one's personal 
use is subject to the condition that such 
manufacture does not endanger or af- 
fect the rights of others. If such man- 
ufacture does prejudicially affect the 
rights and interests of the community, 
it follows, from the very premises 
stated, that society has the power to 
protect itself, by legislation, against the 
injurious consequences of thatbusiness. 
As was said in Munn v. Illinois, 94 U. 8. 
113, 124, while power does not exist 
in the whole people to control rights 
that are purely and exclusively private, 
government may require ' each citizen 
to so conduct himself, and so use his 
116 Ch. 5] 
PROHIBITION. 
§ 83 
ship. For example, in a case in the federal circuit court for the dis- 
trict of Kansas, ?• appeared that the defendants had erected a brew- 
ery in that state, which, with its machinery and fixtures, was designed 
and adapted for the making of beer, and for nothing else. For such 
own property, as not unnecessarily to 
injure another. ' 
"But by whom, or by what authority, 
is it to be determined whether the man- 
ufacture of particular articles of drink, 
either for general use or for the per- 
sonal use of the maker, will injuriously 
affect the public? Power to determine 
such questions, so as to bind all, must 
exist somewhere; else society will be at 
the mercy of the few, who, regarding 
only their own appetites or passions, 
may be willing to imperil the peace and 
security of the many, provided only 
they are permitted to do as they please. 
Under our system, that power is lodged 
with the legislative branch of the gov- 
ernment. It belongs to that depart- 
ment to exert what are known as the 
police powers of the state, and to deter- 
mine, primarily, what measures are ap- 
propriate or needful for the protection 
of the public morals, the public health, 
or the public safety. 
"It does not at all follow that every 
statute enacted ostensibly for the pro- 
motion of these ends is to be accepted 
as a legitimate exertion of the police 
powers of the state. There are. of ne- 
cessity, limits beyond which legislation 
cannot rightfully go. While every pos- 
sible presumption is to be indulged in 
favor of the validity of a statute, (Sink- 
ing Fund Cases, 99 U. S. 700, 718,) the 
courts must obey the constitution, 
rather than the law-making department 
of government, and must, upon their 
own responsibility, determine whether, 
in any particular case, these limits have 
been passed. ' To what purpose,' it was 
said in Marbury v. Madison, 1 Cranch, 
137, 176, 'are powers limited, and to 
what purpose is that limitation commit- 
ted to writing, if these limits may at any 
time be passed by those intended to be 
restrained? The distinction between 
a government with limited and unlim- 
ited powers is abolished, if those limits 
do not confine the persons on whom 
they are imposed, and if acts prohibited 
and acts allowed are of equal obliga- 
tion.' The courts are not bound by 
mere forms, nor are they to be misled 
by mere pretenses. They are at liberty 
-indeed they are under a solemn duty 
-to look at the substance of things, 
whenever they enter upon the inquiry 
whether the legislature has transcended 
the limits of its authority. If, there- 
fore, a statute purporting to have been 
enacted to protect the public health, the 
public morals, or the public safety, has 
no real or substantial relation to those 
objects, or is a palpable invasion of 
rights, secured by the fundamental law, 
it is the duty of the courts to so ad- 
judge, and thereby give effect to the 
constitution. 
"Keeping in view these principles, as 
governing the relations of the judicial 
and legislative departments of govern- 
ment with each other, it is difficult to. 
perceive any ground for the judiciary 
to declare that the prohibition byKansaa 
of the manufacture or sale, within her 
limits, of intoxicating liquors for gen- 
eral use there as a beverage, is not fairly- 
adapted to the end of protecting th& 
community against the evils which con- 
fessedly result from the excessive use 
of ardent spirits. There is no justifica- 
tion for holdiug that the state, under 
the guise merely of police regulations, 
is here aiming to deprive the citizen of 
his constitutional rights: for we can- 
not shut out of view the fact, within the 
knowledge of all, that the public health, 
the public morals, and the public safety 
117 § 83 
[Ch. 5 
LAW OF INTOXICATING LIQUORS. 
purpose it was worth $50,000; for any other purpose, not more than 
$5,000. At the time the building was erected, the making of beer 
was lawful. But afterwards, a constitutional amendment was 
adopted prohibiting its manufacture except for medical and mechan- 
citizenship. Nor can it be said that 
government interferes with or impairs 
any one's constitutional rights of lib- 
erty or of property, when it deter- 
mines that the manufacture and sale of 
intoxicating drinks, for general or indi- 
vidual use as a beverage, are, or may 
become, hurtful to society, and consti 
tute therefore a business in which no 
one may lawfully engage. Those rights 
are best secured, in our government, 
by the observance, upon the part of all, 
of such regulations as are established 
by competent authority to promote the 
common good. No one may rightfully 
do that which the law-making power, 
upon reasonable grounds, declares to 
be prejudicial to the general welfare. 
"This conclusion is unavoidable, un- 
less the fourteenth amendment of the 
constitution takes away from the states 
of the Union those powers of police 
that were reserved at the time the orig- 
inal constitution was adopted. But 
this court has declared, upon full con- 
sideration, in Barbier v. Connolly, 113 
U. 8. 27. 31, 5 Sup. Ct. Rep. 357, that 
the fourteenth amendment had no such 
effect. After observing, among other 
things, that that amendment forbade the 
arbitrary deprivation of life or liberty, 
and the arbitrary spoliation of property, 
and secured equal protection to all un- 
der like circumstances, in respect as 
well to their personal and civil rights 
as to their acquisition and enjoyment of 
property, the court said: * But neither 
the amendment-broad and compre- 
hensive as it is-nor any other amend- 
ment, was designed to interfere with 
the power of the state, sometimes 
termed its police power, to prescribe 
regulations to promote the health, 
peace, morals, education, and good or- 
may be endangered by the use of in- 
toxicating drinks; nor the fact, estab- 
lished by statistics accessible to every 
one, that the idleness, disorder, pau- 
perism, and crime existing in the coun- 
try are, in some degree at least, tracea- 
ble to this evil. If, therefore, a state 
deems the absolute prohibition of the 
manufacture and sale, within her limits, 
of intoxicating liquors for other than 
medical, scientific, and manufacturing 
purposes, to be necessary to the peace 
and security of society, the courts can- 
not, without usurping legislative func- 
tions, override the will of the people as 
thus expressed by their chosen repre- 
sentatives. They have nothing to do 
with the mere policy of legislation. 
Indeed, it is a fundamental principle in 
our institutions, indispensable to the 
preservation of public liberty, that one 
of the separate departments of govern- 
ment shall not usurp powers committed 
by the constitution to another depart- 
ment. And so, if, in the judgment of 
the legislature, the manufacture of in- 
toxicating liquors for the maker's own 
use, as a beverage, would tend to crip- 
ple, if it did not defeat, the effort to 
guard the community against the evils 
attending the excessive use of such 
liquors, it is not for the courts, upon 
their views as to what is best and safest 
for the community, to disregard the 
legislative determination of that ques- 
tion. So far from such a regulation 
having no relation to the general end 
sought to be accomplished, the entire 
scheme of prohibition as embodied in 
the constitution and laws of Kansas 
might fail, if the right of each citizen 
to manufacture intoxicating liquors for 
his own use as a beverage were recog- 
nized. Such a right does not inhere in 
118 Ch. 5] 
PROHIBITION. 
§ 83 
ical purposes. Even for these purposes a permit was required, which 
the defendants were unable to obtain. And they were thereupon 
absolutely enjoined, by the state court, from the manufacture of beer. 
On this state of facts, Judge Brewer, delivering a very able and 
der of the people, and to legislate so as 
to increase the industries of the state, 
develop its resources, and add to its 
wealth and prosperity.' 
" Undoubtedly the state, when provid- 
ing by legislation for the protection of 
the public health, the public morals, or 
the public safety, is subject to the par- 
amount authority of the constitution of 
the United States, and may not violate 
rights secured or guarantied by that in- 
strument, or interfere with the execu- 
tion of the powers confided to the gen- 
eral government. Henderson v. Mayor 
of New York, 92 U. S. 259; Railroad Co. 
v. Husen, 95 U. S. 465; New Orleans 
Gas Co. v. Louisiana Light, etc., Co., 
115 U. S. 650, 6 Sup. Ct. Rep. 252; Wall- 
ing v. Michigan, 116 U. S. 446, 6 Sup. 
Ct. Rep. 454; Yick Wo v. Hopkins, 118 
U. S. 356, 6 Sup. Ct. Rep. 1064; Mor- 
gan'sSteam-Ship Co. v. Louisiana Board 
of Health, 118 U. S. 455, 6 Sup. Ct. Rep. 
1114. 
"Upon this grcund-if we do not mis- 
apprehend the position of defendants- 
it is contended that, as the primary and 
principal use of beer is as a beverage; 
as their respective breweries were erect- 
ed when it was lawful to engage in the 
manufacture of beer for every purpose; 
as such establishments will become of 
no value as property, or at least will be 
materially diminished in value, if not 
employed in the manufacture of beer, 
for every purpose; the prohibition up- 
on their being so employed is, in effect, 
a taking of property for public use 
without compensation, and depriving 
the citizen of his property without due 
process of law. In other words, al- 
though the state, in the exercise of her 
police powers, may lawfully prohibit 
the manufacture and sale, within her 
limits, of intoxicating liquors to be used 
as a beverage, legislation having that 
object in view cannot be enforced 
against those who at the time happen 
to own property the chief value of 
which consists in its fitness for such 
manufacturing purposes, unless com- 
pensation is first made for the diminu- 
tion in the value of their property re- 
sulting from such prohibitory enact- 
ments. 
"This interpretation of the four- 
teenth amendment is inadmissible. It 
cannot be supposed that the states in- 
tended, by adopting that amendment, 
to impose restraints upon the exercise 
of their powers for the protection of 
the safety, health, or morals of the 
community. . . . The principle that no 
person shall be deprived of life, liberty, 
or property without due process of law 
was embodied, in substance, in the con- 
stitutions of nearly all. if not all, of the 
states at the time of the adoption of 
the fourteenth amendment, and it has 
never been regarded as incompatible 
with the principle, equally vital, be- 
cause essential to the peace and safety 
of society, that all property in this 
country is held under the implied obli- 
gation that the owner's use of it shall 
not be injurious to the community." 
In illustration of this principle, the 
court then proceeded to examine the 
cases of Patterson v. Kentucky, 97 U. 
S. 501; Fertilizing Co. v. Hyde Park, 97 
U. S. 659; Pumpelly v. Green Bay Co., 
13 Wall. 166. Resuming the argument, 
the learned judge observed: "A pro- 
hibition simply upon the use of prop- 
erty for purposes that are declared, by 
valid legislation, to be injurious to the 
health, morals, or safety of the commu- 
nity, cannot in any just sense be deemed 
119 § 83 
LAW OF INTOXICATING LIQUORS. 
[Ch. 5 
strongly reasoned opinion, held that the law in question, in its dete- 
riorating effect upon the value of the defendants' property, was 
unconstitutional and void.9 But this decision, in the light of the 
adjudications already cited, was wrong. And indeed the courts 
generally agree that "there is a broad distinction between the taking 
of property under the power of eminent domain for a public use, and 
the incidental injury or inconvenience which results to property or 
business on account of the exertion of the police power of the state, 
when its purpose is the promotion of the public welfare. In the 
former case, compensation must be made; in the latter, no such 
a taking or an appropriation of prop- 
erty for the public benefit. Such legis- 
lation does not disturb the owner in 
the control or use of his property for 
lawful purposes, nor restrict his right 
to dispose of it, but is only a declara- 
tion by the state that its use by any 
one, for certain forbidden purposes, is 
prejudicial to the public interests. Nor 
can legislation of that character come 
within the fourteenth amendment in 
any case, unless it is apparent that its 
real object is not to protect the com- 
munity or to promote the general well 
being, but, under the guise of police 
regulation, to deprive the owner of his 
liberty or property without due process 
of law. The power which the states 
have of prohibiting such use by indi- 
viduals of their property as will be prej- 
udicial to the health, the morals, or 
the safety of the public is not-and 
consistently with the existence and 
safety of organized society cannot be- 
burdened with the condition that the 
state must compensate such individual 
owners for pecuniary losses they may 
sustain, by reason of their not being 
permitted, by a noxious use of their 
property, to inflict injury upon the 
community. The exercise of the police 
power by the destruction of property 
which is itself a public nuisance, or the 
prohibition of its use in a particular 
way, whereby its value becomes depre- 
ciated, is very different from taking 
property for public use, or from de- 
priving a person of his property with- 
out due process of law. In the one 
case, a nuisance only is abated; in the 
other, unoffending property is taken 
away from an innocent owner. 
"Itis true that when the defendants 
in these cases purchased or erected 
their breweries, the laws of the state 
did not forbid the manufacture of in- 
toxicating liquors. But the state did 
not thereby give any assurance, or 
come under an obligation, that its legis- 
lation on that subject would remain un- 
changed. Indeed, as was said in Stone 
v. Mississippi, [101 U. S 814,] the super- 
vision of the public health and the pub- 
lic morals is a governmental power, 
continuing in its nature, and * to be 
dealt with as the special exigencies of 
the moment may require,' and that * for 
this purpose, the largest legislative dis- 
cretion is allowed, and the discretion 
cannot be parted with any more than 
the power itself.' So in Beer Co. v. 
Massachusetts, 97 U. S. 32: ' If the pub- 
lic safety or the public morals require 
the discontinuance of any manufacture 
or traffic, the hand of the legislature 
cannot be stayed from providing for 
its discontinuance by any incidental 
inconvenience which individuals or 
corporations may suffer.'" 
9 State v. Walruff, 26 Fed. Rep. 178. 
And see Wynehamer v. People, 13 N. 
Y. 378. 
120 Ch. 5] 
PROHIBITION. 
§ 84 
obligation arises."10 But yet, in view of the serious losses which 
individuals may suffer from the application of such laws, it may be 
worthy of the consideration of legislatures and states, when minded 
to adopt prohibition, whether absolute right and justice do not 
require them to provide compensation for such persons. There are 
moral obligations, other than those which strict law enforces. And 
any reformation, however righteous its aim, is ill inaugurated which 
begins with spoliation and injustice. 
§ 84. Impairing the Obligation of Contracts. 
It is settled that prohibitory liquor laws, in their effect upon exist- 
ing obligations, rights, or franchises, are not within the constitu- 
tional provision against laws impairing the obligation of contracts. 
For all rights and all property are held subject to the exertion by 
the state of its police power for the promotion of the general wel- 
fare. For instance, the charter of a private corporation is a con- 
tract to which the state is a party. But no legislature can surrender 
or bargain away the police power; all franchises are subject to its 
exercise. Hence, although prohibition may injuriously affect a 
corporation previously chartered, as by rendering unlawful the very 
business which its charter authorized it to engage in, it is not, in 
such application, unconstitutional.11 Again, the effect of the adop- 
tion of prohibition may be to revoke and annul licenses to sell liquor, 
granted under previous laws, and still unexpired. But, as we shall 
see more fully hereafter,12 such licenses are not contracts, but mere 
temporary permits to do what otherwise would be unlawful, and 
hence their cancellation, by the operation of a later law, is no 
invasion of any constitutional rights of the holders. It is the same 
in regard to the contracts of individuals. If the laws in question 
operate to prevent the performance of contracts previously made, 
10 Moore v. Indianapolis, 120 Ind. 483, 
22 N. E. Rep. 424. And see Comm. v. 
Alger, 7 Cush. 53; Bancroft v. Cam- 
bridge, 122 Mass. 438; Philadelphia v. 
Scott, 81 Pa. St. 80; Lewis, Em. Dora. 
§ 6; supra, § 32. 
11 Beer Co. v. Massachusetts, 97 U. S. 
25; State v. Paul, 5 R. L 185. 
™ Infra, § 127. 
121 § 86 
[Ch. 5 
LAW OF INTOXICATING LIQUORS. 
still this exercise of the police power is not obnoxious to the pro- 
hibition contained in the federal constitution.18 
§ 85. Retrospective Effect of Prohibition. 
Prohibitory laws, in their retrospective operation, are not invalid, 
if they do not punish acts as crimes which were not such at the 
time of their commission, or violate any other positive constitutional 
inhibition.14 Such a statute, for example, although it prohibits 
manufacturers and others from selling, or keeping for sale within 
the state, intoxicating liquors which may have been manufactured or 
bought by them previous to its passage, is not, for that reason, an 
ex post facto law; since, so far as it punishes such selling and keep- 
ing, it is prospective; and if it lessens the value of liquors owned in 
the state previous to its passage, and held at that time, such civil 
consequence does not make it retroact criminally, in such sense as 
to bring it within the definition of an ex post facto law.15 
§ 86. Regulation of Commerce. 
We have already seen that state prohibitory laws, prior to the 
enactment of the act of congress commonly called the "Wilson law," 
in so far as they prohibited the introduction of liquors from another 
state or country, or their sale by the importer in the original pack- 
ages of importation, were adjudged unconstitutional and void.16 But 
a law of this character is not invalid, as encroaching on the power of 
congress to regulate commerce, merely because its prohibitory terms 
make no distinction between manufacture for consumption within the 
state and manufacture for export, or between a sale within the state 
and a sale without the state, or between the keeping of liquors in the 
state for sale there and the keeping of liquors for sale and shipment 
into other states.17 "If the law be obeyed," says the court in Iowa, 
18 People v. Hawley, 3 Mich. 330. 
14 McLane v. Bonn, 70 Iowa, 752, 30 N. 
W. Rep. 478; Peischv. Linder, 73 Iowa, 
766, 33 N. W. Rep. 133; Craig v. Flo- 
range, 71 Iowa, 761, 32 N. W. Rep. 356. 
16 State v. Paul, 5 R. I. 185; State v. 
Keerah, Id. 497. 
16 Supra, §§ 71-76. 
17 Kidd v. Pearson, 128 U. S. 1, 9 Sup. 
Ct. Rep. 6; Pearson v. International 
122 Ch. 5] 
PROHIBITION. 
§ 88 
" no liquor will be manufactured for transportation. Its operation is 
to prevent the production of an article which might be lawfully trans- 
ported out of the state. Now commerce consists in the interchange 
of commodities or property which is the subject of trade. It does 
not consist of the impossible interchange of things not in existence. 
There must be articles of trade before commerce can exist. How, 
then, can it be said that the statute, by prohibiting the manufacture 
of an article of trade, regulates commerce ? But if this view be not 
correct, and the authority to regulate commerce extends to the regu- 
lation of the production of articles of commerce, then the state is 
deprived of all authority to tax, license, prohibit, or otherwise regu- 
late the manufacture and the manufacturers of all articles which are 
intended, when produced, to be the subject of interstate commerce."18 
§ 87. Conflict with. United States Revenue Laws. 
The United States internal revenue laws are enacted for purposes 
of revenue merely, and not with any view to regulating or legalizing 
the liquor traffic. And a liquor license granted under those laws is, 
in effect, only a receipt for taxes, implying nothing more than that 
the licensee, having paid such taxes, shall be subject to no penal- 
ties under federal law. It follows that when any state or territory 
adopts prohibitory legislation, it is not rendered invalid by the fact 
that its effect upon persons holding government licenses is to pre- 
vent them from continuing the business for which they were 
licensed.19 
§ 88. Adoption of Constitutional Amendment. 
In Rhode Island, where the question of prohibition was referred 
to the voters of the state in the form of an amendment to the con- 
stitution, the supreme court held that it had no jurisdiction in equity 
Distillery, 72 Iowa, 348, 34 N. W. Rep. 
1; State v. Fitzpatrick, 16 R. I. 54, 11 
Atl. Rep. 767. 
18 Pearson v. International Distillery, 
72 Iowa, 348, 34 N. W. Rep. 1. 
19Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746; State v. Carney, 20 
Iowa, 82; State v. Baughman, Id. 497. 
123 § 90 
LAW OF INTOXICATING LIQUORS. 
[Ch. 5 
to entertain a suit against the governor, the secretary of state, and 
the attorney general, who, by the act under which the amendment 
was submitted to the electors, were appointed a commission to count 
the votes and proclaim the result, merely because they had made a 
nugatory count of votes, or had issued an ineffectual proclamation; 
nor would it interfere with their possible judicial discretion in exam- 
ining into the legality of the votes cast and rejecting such as were 
found to be illegal.20 
§ 89. Property in Liquors under Prohibitory Laws. 
It is possible to own and possess intoxicating liquors lawfully, not- 
withstanding the existence of a general prohibitory liquor law in the 
state. For the owner may have caused it to be brought from with- 
out the state, intending it for his own cellar, or may have bought it 
from authorized agents within the state for medicinal or mechanical 
purposes. Hence the owner of liquor, which he has purchased in 
another state, may maintain an action against a common carrier, 
who was bringing it to him, and by whose fault it was lost or 
destroyed. And if the carrier would defend himself on the ground 
that the liquor was held for an unlawful purpose, the burden is on 
him to show that the ownership existed under such circumstances 
as to constitute the liquor a nuisance.21 
§ 90. Repeal of Prior Laws by Adoption of Prohibition. 
It is generally held that the enactment of a statute or constitu- 
tional amendment prohibiting the manufacture and sale of intoxicat- 
ing liquors as a beverage, operates to repeal and annul all previously 
existing laws which permitted such manufacture or sale under regu- 
lations or restrictions.22 And all sales of such liquors made there- 
after, for other than the excepted purposes, are unlawful, though 
made under licenses issued prior to its adoption.23 But such an 
20 Hanley v. Wetmore, 15 R. I. 386, 6 
Atl. Rep. 777. 
21 Bowen v. Hale, 4 Iowa, 430. 
22State v. Tonks, 15 R. I. 385, 5 Atl. 
Rep. 636. Compare State v. Dorr, 82 
Me. 212, 19 Atl. Rep. 171; State v. Swan, 
(N. Dak.) 44 N. W. Rep. 492. 
23 Prohibitory Amendment Cases, 24 
Kans. 700. 
124 Ch. 5] 
PROHIBITION. 
§ 90 
enactment does not take away the right to recover for the breach of 
the condition of a bond given pursuant to the requirements of a 
license law in force before and upon the adoption of prohibition.24 
And although a city ordinance prohibiting the sale of liquor without 
a license is abrogated, so far as regards the granting of licenses, by 
the adoption of a general prohibitory law, yet this, it is said, does 
not repeal that part of the ordinance punishing illegal selling.25 And 
a law prohibiting the sale of intoxicating liquors on Sunday, except 
by druggists upon prescription, although part of a chapter enacting 
a license system, is not void, under a prohibitory constitutional 
amendment; for although the rest of the chapter may be unconsti- 
tutional, yet the particular provision is not so interwoven with it that 
it may not stand.26 Finally, where the amendment prohibits the 
manufacture and sale of intoxicating liquors "to be used as a bever- 
age," this does not impliedly license such manufacture and sale for 
other purposes than as a beverage, and consequently the legislature 
has power to go beyond the terms of the amendment, and prohibit 
such manufacture and sale for such other purposes.27 
-4Coggeshall v. Groves, 16 R. I. 18, 11 
Atl. Rep. 296. 
26 Franklin v. Westfall, 27 Kans. 614. 
26 State v. Clark, 15 R. I. 383, 5 Atl. 
Rep. 635. 
27 State v. Kane, 15 R. L 395, 6 Atl. 
Rep. 783. 
125 § 91 
LAW OF INTOXICATING LIQUORS. 
[Ch. 6 
CHAPTER VI. 
LOCAL OPTION. 
§ 91. Nature and Terms of Local Option Laws. 
92. Constitutionality of Local Option Laws. 
93. Petition for Election. 
94. Notice of Election. 
95. Order for Election. 
96. Time of Holding Election. 
97. Conduct of Election. 
98. Publication of Result. 
99. Time of Taking Effect. 
100. Operation and Effect of Law. 
101. Effect on Prior Rights and Privileges. 
102. Proof of Adoption of Local Option. 
103. Contesting Validity of Election. 
104. Effect of Local Option on Prior Liquor Laws. 
105. Effect of Changing Boundary of District. 
106. Repeal of Local Option. 
§ 91. Nature and Terms of Local Option Laws. 
A "local option" law is one which, contemplating a diversity of 
opinion in different parts of the state as to the desirability of licens- 
ing the sale of liquor, gives to the people of the various localities a 
privilege of determining whether licenses shall be granted among 
them or whether prohibition shall be the rule. It is usually framed 
as a law for the prohibition or severe restriction of the sale of intox- 
icants, under penalties, containing a provision that the various coun- 
ties, townships, or other divisions of the state, may hold elections to 
determine by popular vote whether they desire the law to be in force 
in their limits, and with a further' provision that in each case where 
such election results in favor of the adoption of the law it shall take 
effect in the district so voting, but that each district rejecting it shall 
continue to be governed, in this respect, by the existing laws. As 
the result of these elections is seldom the same throughout the state, 
it follows that, in the states where this system has been tried, differ- 
ent localities are subject to different regulations, according to the vary- 
126 Ch. 6] 
LOCAL OPTION. 
§ 93 
ing sentiments and circumstances of the people. Where the option is 
exercised against the issuing of licenses, the terms of the law are ordi- 
narily much the same as those of the prohibitory laws discussed in 
the preceding chapter. Permits may be granted to druggists to sell 
for medical and mechanical purposes; search and seizure provisions 
are enacted; and the illegal keeping of liquor for sale is declared a 
nuisance. The provisions for submitting the question to the people 
have varied somewhat in different states. But the general plan 
requires the filing of a petition, signed by a certain number or propor- 
tion of the citizens of the district; due publication or notice of the 
same; an order for an election by a designated court or officer; an 
election held at a designated time and in a prescribed manner; and 
an official proclamation of the result. In some states, the question 
of license is to be voted on at stated intervals, as every year or every 
two years; in others, it is not to be submitted within two, three, or 
four years of a previous local option election. 
§92. Constitutionality of Local Option Laws. 
The constitutional validity of local option laws was examined in 
detail in a previous section. And it was there shown that, notwith- 
standing some difference of opinion, the great preponderance of 
authority is to the effect that such a statute, if it is a complete enact- 
ment in itself, as it leaves the hands of the legislature, requiring 
nothing further to give it validity, and depending upon the popular 
vote for nothing but a determination of the territorial limits of its 
operation, is a valid and constitutional exertion of the legislative 
power.1 As there stated, there is no force in the contention that a 
local option law delegates legislative power to the people; or that it 
is local or special, or not uniform, in its nature; or that it impairs 
contracts or vested rights. 
§ 93. Petition for Election. 
The petition for an election, required by the local option law, is 
a jurisdictional prerequisite. Without such a petition, sufficient in 
1 Supra, § 45, and cases cited. 
127 § 93 
LAW OF INTOXICATING LIQUORS. 
[Ch. 6 
form and signatures, the authorities have no power to order an elec- 
tion, and no valid election can be held.2 In regard to the persons 
who may legally sign it, there is considerable variety in the statu- 
tory provisions. But if the law requires the petition to be signed by 
a majority of the "adult residents" of the county, it is held that this 
includes women as well as men, and adult females may sign it, 
though they are not electors.8 Members of the board of supervis- 
ors of the county, though they are the persons whose duty it is to 
order the election upon a proper petition being presented, may 
themselves sign the petition, and canvass for other signers, and are 
not thereby disqualified from acting on it.4 A person who signed 
the petition cannot withdraw from it after it has been acted upon 
by the county court and while an appeal is pending in a superior 
court, although, in the latter court, the issues are tried anew.6 A 
law which provides that a petition for election shall be presented, 
signed by one-tenth of the qualified voters of the district, is suffi- 
ciently complied with where two petitions for that purpose are pre- 
sented, which together are signed by one-tenth of the voters, though 
neither one alone has the requisite number.6 But of course this 
rule could be applied only in case the two petitions were identical 
in terms. Any substantial variance would prevent their being con- 
sidered one document. In regard to the form and contents of the 
petition, while it is required to conform to all the peremptory pro- 
visions of the law, a certain measure of indulgence is shown in mat- 
ters not of the essence. For instance, if the law requires the peti- 
tion to contain a statement that "in the opinion of the petitioner, 
the public good will be promoted by a prohibition of the sale or giv- 
ing away of vinous or spirituous liquors within such limits," a peti- 
tion without this allegation is fatally defective, and will confer no 
jurisdiction to order an election.7 But on the other hand, the fact 
that the petition erroneously refers to the statute is immaterial.8 
2 Akin v. State, 14 Tex. App. 142. 
8 Blackwell v. State, 36 Ark. 178. 
4 Lemon v. Peyton, 64 Miss. 161, 8 
South. Rep. 235. 
6 In re McCullough, 51 Ark. 159,10 S. 
W. Rep. 259. 
6 State v. Weeks, 38 Mo. App. 566; 
State v. Smith, Id. 618. 
7 Tally v. Grider, 66 Ala. 119. 
8 Steele v. State, 19 Tex. App. 425. 
128 Ch. 6] 
LOCAL OPTION. 
§ 94 
And in a case where the petition prayed for an election "to determine 
whether or not spirituous and intoxicating liquors, including wine 
and beer, should be sold" within the district, although the section 
of the statute authorizing the election made no mention of wine or 
beer, but it appeared from a comparison with other provisions of the 
law that the words "intoxicating liquors" were used therein as 
including these articles, it was held that the superfluous words in 
the petition might be treated as surplusage, and did not affect its 
validity.9 Under an act providing that liquor-selling may be pro- 
hibited on the petition of persons residing within three miles of any 
school-house or church, it is held that two points as centres can- 
not be designated in the same petition, and signers secured from 
within three miles of either.10 
§ 94. Notice of Election. 
The local option laws commonly provide that notices of an election 
to be held shall be posted by the sheriff, or other officer, at certain 
places throughout the district, (or published in certain newspapers,) 
within a prescribed period preceding the election. If this requisite 
is not complied with, no valid election can be held.11 But the mere 
fact that two of the five notices posted in the county were posted in 
a single precinct, would not of itself invalidate the election.12 Yet 
if a less number of notices are posted than the law expressly requires, 
it is a fatal defect.13 Where the statutory provision is that "the clerk 
shall post, or cause to be posted, at least five copies" of the notice 
at different public places, and it appears that the clerk did not post 
the notices, but issued them, and placed them in the hands of "good 
men" to be posted, there is no sufficient compliance with the law 
shown, because it will not be presumed that such men posted the 
notices.14 Where the provision is that the notice shall be given by 
publication in a newspaper, and such notice shall be published for 
9 State v. Schmitz, 36 Mo. App. 550. 
10 Williams v. Citizens, 40 Ark. 290. 
11 Haddox v. Clarke Co., 79 Va. 677; 
Ex parte Kennedy, 23 Tex. App. 77, 3 
S. W. Rep. 114. 
12 Ex parte Kennedy, 23 Tex. App. 77, 
3 S. W. Rep. 114. 
13 Smith v. State, 19 Tex. App. 444. 
14 James v. State, 21 Tex. App. 189,17 
S. W. Rep. 422. 
INTOX.LIQ. 9 
129 § 95 
LAW OF INTOXICATING LIQUORS. 
[Ch. 6 
four consecutive weeks, and the last insertion shall be within ten days 
next before the election, it is held that there must be twenty-eight 
days' notice of the election, exclusive of the first day of the notice, 
and inclusive of the day of the election.15 If the notice is published 
in all the newspapers among which the governor and comptroller 
must make their selection of those entitled to publish the laws, it 
will be a sufficient publication, although those officers have not as 
yet made any selection.16 It is not necessary for the notice to state 
that the petition was signed by the requisite number of voters, when 
the authorities appointed to consider the matter have reported that 
it was so signed.17 
§ 95. Order for Election. 
The statutes provide that upon the presentation of a sufficient peti- 
tion, an order for an election shall be made by the designated authority 
-usually a local court, but, in some states, the county commissioners 
or board of supervisors. As a rule, this authority has no discretion 
in the matter, beyond a determination of the legal sufficiency of the 
petition. But if it is made the duty of the judge to decide whether 
the circumstances have arisen which require an election, this is not 
violative of the constitutional principle that the functions of the three 
departments of government must be kept separate.18 The power to 
make such order must be exercised by the person to whom it is con- 
fided, and cannot be delegated. But the mere fact that the order 
recites that it was made by the court, while the statute in terms con- 
fers the authority on the judge, is not enough to avoid the election, 
where the order is signed by the judge.19 If the statute requires the 
order for election to be issued at the term of court next succeeding 
the filing of the petition, this is imperative, and an election held under 
an order issued at any other term of the court is absolutely void.20 
16 State v. Tucker, 32 Mo. App. 620; 
Leonard v. Saline County Court, Id. 
633. 
16 State v. Circuit Court, 50 N. J. Law, 
585, 15 Atl. Rep. 272. 
17 State v. Weeks, 38 Mo. App. 566; 
State v. Smith, Id. 618. 
18 State v. Circuit Court, 50 N. J. Law, 
585, 15 Atl. Rep. 272. 
19 Olmstead v. Crook, 89 Ala. 228, 7 
South Rep. 776. 
20 Ex parte Sublett, 23 Tex. App. 309, 
4S. W. Rep. 894. But it may be ordered 
at a special session of the court if that 
130 Ch. 6] 
LOCAL OPTION. 
§ 97 
When the statute authorizes an election to determine whether or not 
the "sale" of intoxicating liquors shall be prohibited in the county, 
the court has no authority to order an election to determine whether 
or not the "sale or exchange or barter" of such liquors shall be pro- 
hibited in the county.21 
§ 96. Time of Holding Election. 
The time when the local option election shall be held is usually 
specified in the statute. If the law requires such election to take 
place within a designated number of days after the reception of the 
petition, or after the date of the order, this provision is imperative, 
and an election held after the prescribed time has expired, though 
regular in all other respects, is entirely invalid.22 Where it is pro- 
vided that such election shall not be held "within" sixty days of any 
municipal or state election in the same city, an election held within 
sixty days either before or after a municipal election in the same city 
will be entirely void and will not have the effect of enacting prohibi- 
tion in that locality.23 However, it is held that the election is not 
vitiated by the fact that it was held within sixty days previous to a 
special municipal election which could not have been anticipated 
until after the date of the local option election.24 It is also held that 
a provision of the general election law of the state, requiring special 
elections to be held on Tuesday, does not apply to an election under 
the local option law.25 
§ 97. Conduct of Election. 
The election under a local option law, and the supervision thereof 
by the designated authorities, being the exercise of political and police 
powers incident to legislative and executive government, and not at 
all judicial, the courts have no jurisdiction to interfere except such as 
is the first session after the filing of the 
petition. Id. 
21 Ex parte Beaty, 21 Tex. App. 426,1 
S. W. Rep. 451. 
22 State v. Ruark, 34 Mo. App. 325; 
Curry v. State, 28 Tex, App. 475, 13 S. 
W. Rep. 752. 
23 In re Wooldridge, 30 Mo. App. 612. 
24 State v. Ruark, 34 Mo. App. 325. 
28 State v. Circuit Court, 50 N. J. Law, 
585, 15 Atl. Rep. 272. 
131 § 97 
[Ch. 6 
LAW OF INTOXICATING LIQUORS. 
may be conferred by the act itself.26 The formality and regularity 
of such election are to be tested by the terns of the statute under 
which it is held, and by the general principles of the law relating to 
elections, where applicable. For instance, it is not rendered void by 
the fact that a separate ballot-box was not provided for the votes cast 
on the question of local option, where the only statutory requirement 
is that the voting shall be by ballot.27 Nor is the election invalidated 
by the fact that the voters were not asked the precise question set out 
in the statute ;28 although, where the election should be held to decide 
concerning the sale of liquor, an election cannot be held to determine 
whether its gift or exchange shall be prohibited.29 If the statute 
requires a majority vote either to accept or reject the provisions of the 
local option law, a tie-vote is not enough to change the policy of the 
district; it would leave the matter as it stood before the election.30 
In a case in Alabama, where the statute provided that licenses should 
not be issued unless a majority of the qualified voters should express 
a desire therefor, it was held that, although a majority of the votes 
were not cast "against license," yet licenses could not be issued unless 
a majority of the votes were cast "for license," and a showing that, 
out of 252 votes cast, 121 were "for license," 1 for "no license," and 
130 so informal that they could not be counted, did not warrant the 
issuing of licenses.81 Whether the majority required is a majority 
of the registered voters of the county or township, or a majority of 
those actually voting at the election, will depend upon the language 
of the statute.32 The form of the ballots, if set out in the statute, 
must be exactly as there described, or at least in close conformity 
therewith. Thus, if the act provides for the casting of ballots "for 
license" and "against license," a ballot marked "no whisky" is insuf- 
ficient and cannot be counted.83 
56 Scoville v. Calhoun, 76 Ga. 263. 
27 Donovan v. Comm'rs of Fairfield 
Co., GO Conn. 339, 22 Atl. Rep. 847. 
28 Gayle v. Owen County Court, 83 
Ky. 61. 
29 Steele v. State, 19 Tex. App. 425. 
30 Temmick v. Owings, 70 Md. 246, 16 
Atl. Rep. 719. 
81 Prestwood v. Borland, (Ala.) 9 
South. Rep. 223. And see Siloam Springs 
v. Thompson, 41 Ark. 456. 
82 Chalmers v. Funk. 76 Va. 717. 
83 Prestwood v. Borland, (Ala.) 9 
South. Rep. 223. 
132 Ch. 6] 
LOCAL OPTION. 
§ 98 
§98. Publication of Result. 
If the local option law does not make any provision as to how the 
result of the election shall be proclaimed, a verbal proclamation by 
the clerk at the court-house door, "that the local option law had car- 
ried, and that a majority of the votes were against the sale of intox- 
icating liquors," will be sufficient.34 As a rule, however, it is required 
that the result be published in all the newspapers in the district, or 
in certain designated papers. And such publication is a condition 
precedent to the taking effect of the law.35. And where it is provided 
that such publication shall be had for four successive weeks, the law 
contemplates that the notice shall be published for four full consecu- 
tive weeks, or twenty-eight days, from the day of its first publication.88 
Publication in all the newspapers of the county being a condition pre- 
cedent to the taking effect of the prohibition of the act, a notice which 
is not published in all of them is ineffectual. But where the proper 
notice is published as soon as the invalidity of the former has been 
determined, the prohibition will take effect thereafter as provided by 
the terms of the act.37 Where the statute does not prescribe the man- 
ner in which the fact of publication shall be proved, it is considered 
that the oral testimony of the publisher is competent.38 The order 
of court declaring the result of the election, and prohibiting the sale of 
liquor, need not be in the precise words and form required by the 
statute, but is sufficient if it substantially complies therewith.39 And 
where such an order, through manifest inadvertence or a clerical error,, 
shows that less than a majority of the votes cast were for prohibition,, 
when as a matter of fact it is apparent from other parts of the same 
order that there was a majority for prohibition, it is not thereby inval- 
idated.40 It is held that a certification of the returns of a local option 
34 Mackin v. State, 62 Md. 244. 
36 Toole v. State, 88 Ala. 158, 7 South. 
Rep. 52; Phillips v. State, 23 Tex. App. 
304, 4 S. W. Rep. 893. 
36 Phillips v. State, 23 Tex. App. 304, 
4 S. W. Rep. 893. 
87 Olmstead v. Crook, 89 Ala. 228, 7 
South. Rep. 776. 
33 State v. Baker, 36 Mo. App. 58. 
39 James v. State, 21 Tex. App. 189, 17 
S. W. Rep. 422. 
40 Ex par'e Burrage, 26 Tex. App. 35, 
9 S. W. Rep. 72. 
133 § 100 
LAW OF INTOXICATING LIQUORS. 
[Ch. 6 
election is sufficient if made by a majority of the commissioners.41 
And in Kentucky, it is held that when a vote under the local option 
law results in favor of licensing the sale of liquors, the board to com- 
pare the polls need not certify the fact to the county court; although, 
in the other event, it is clearly necessary, as, in that case, a law with 
highly penal provisions will go into effect.42 
§ 99. Time of Taking Effect. 
The time when a local option law shall go into effect, in a district 
voting in favor of its adoption, must be determined by the language 
employed in the particular statute. In some cases the law is so 
worded that the prohibition upon the sale of liquor will go into oper- 
ation immediately upon an election being held and resulting in a 
majority vote against such sale.43 But more usually it is provided 
that the law shall not take effect until after notice of the result of the 
election has been published, during a designated period, in a certain 
prescribed manner. In that event, due publication, for the full period 
of time contemplated by the statute, is a condition precedent to the 
going into operation of the prohibitory law.44 Where, as in Alabama, 
it is provided that no penal act shall go into effect until thirty days 
after the adjournment of the legislature, this limitation must be 
taken into account in enacting a local option law, with reference to 
the time of its taking effect.46 
§ 100. Operation and Effect of Law. 
Where a statute provides for prohibition upon the sale of liquor 
at retail, first, in any city, town, or village within the county by pop- 
ular vote of such city, town, or village; second, in the county by pop- 
ular vote of the whole county; and third, in any militia district of 
the county by popular vote of the district; it is held that the restric- 
41 Fullwood v. State, 67 Miss. 554, 7 
South. Rep. 432. 
42 Comm. v. Hoke, 14 Bush, 668. 
43 Comm. v. Lillard, (Ky.) 9 S. W. Rep. 
710. 
44 Phillips v. State. 23 Tex. App. 304, 
4 S. W. Rep. 893. 
45 Olmstead v. Crook, 89 Ala. 228, 7 
South. Rep. 776. 
134 Ch. 6] 
LOCAL OPTION. 
§ 101 
tion, when adopted by the county as a whole, operates throughout 
its entire territory, including all the cities, towns, and villages, as well 
as all the militia districts, within its limits.48 The effect of the adop- 
tion of a local option law is to make any sale of liquor within the 
district, save in accordance with the exceptions set forth in the act, 
an indictable offense.47 
§ 101. Effect on Prior Rights and Privileges. 
It is generally held that whenever prohibition is declared, in 
accordance with the local option law, in any given locality, it has the 
effect to revoke and render null all existing and unexpired liquor 
licenses in that locality; and any person who sells liquor within the 
district, thereafter, violates the law, notwithstanding he sells under 
a license granted before the adoption of prohibition.48 There is a 
contrary ruling in Kentucky.49 But it is not supported by the decis- 
ions elsewhere, nor by the general principles applicable to the ques- 
tion. For a license to sell liquor, it is agreed, is not a contract, nor 
a property right, nor a vested interest of any sort; it is merely a 
temporary permission to engage in a business which the law regards 
with no favor; and it may be revoked, or cancelled by a change in 
the system of liquor legislation, without an unlawful invasion of any 
rights of the holder.60 Hence it would appear that the adoption of 
a law which is expressly directed against the licensed selling of liquor 
must necessarily have the effect of annulling outstanding licenses. 
And it is held that the fact that one who keeps liquor, to be sold 
illegally, obtained it previous to the going into effect of the local 
option law, does not affect his legal liability for the violation of an 
ordinance, subsequently passed, prohibiting such sale.61 Sometimes, 
however, a local option law contains an express saving of vested 
46 Tatum v. State, 79 Ga. 176, 3 S. E. 
Rep. 907. See Ex parte Cox, 28 Tex. 
App. 537, 13 S. W. Rep. 862. 
« State v. Emery, 98 N. Car. 768, 3 S. 
E. Rep. 810; Garner v. State, 8 Blackf. 
568. 
48 Robertson v. State, 12 Tex. App. 
541; Ex parte Lynn, 19 Tex. App. 293; 
State v. Cooke, 24 Minn. 247, 31 Am. 
Rep. 344. 
49 Watts v. Comm., 78 Ky. 329. 
so See infra, §§ 127, 128. 
61 Menken v. Atlanta, (Ga.) 3 S. E. 
Rep. 414. 
135 § 102 
LAW OF INTOXICATING LIQUORS. 
[Ch. 6 
rights. And this, it is held, embraces previously acquired rights to 
sell by virtue of licenses already taken out and paid for, but compre- 
hends no right either to obtain a new license, or to sell without 
license, whether on the part of natural persons or of corporations.62 
§ 102. Proof of Adoption of Local Option. 
In the state of Texas, where the local option law requires a proper 
petition, signed by the requisite number of qualified voters, to be 
filed with the commissioners' court before an election can be ordered, 
and also that the result of the election shall be published and pro- 
mulgated, it is held that a person cannot be convicted of violating the 
law, unless the state proves that the required petition was filed and 
that the result of the election was duly promulgated, and the order 
of court for holding the election and the order announcing the result 
are not sufficient to show the adoption of local option.63 But else- 
where,-under the rule that a court will take judicial notice of 
things which are public in their effects and relations and ought to be 
known within its jurisdiction,-it is not considered necessary for the 
state to allege or prove that local option had gone into effect in the 
particular county or district.64 The defendant may indeed show that 
the petition was insufficient, that the notice of election was not duly 
published, that there was not a majority vote against license, etc., 
but the burden of proving such allegations is upon him.68 In Ken- 
tucky, the law makes the entry of the certificate of the election, 
attested by the clerk of the county court, prima jacie evidence of the 
vote upon the adoption of the law; and it is not necessary for the 
prosecution to prove that a majority of the qualified voters of the 
county had voted in favor of adopting the law, though such is the 
allegation of the indictment.66 Where the law provides that the result 
of the election shall be placed on the minutes of the superior court, 
62 Menken v. Atlanta, 78 Ga. 668, 2 S. 
E. Rep. 559. 
63 Henry v. State, (Tex. App.) 16 S. W. 
Rep. 342; Carnes v. State, 23 Tex. App. 
449, 5 S. W. Rep. 133. 
64 Rauch v. Comm., 78 Pa. St. 490; 
Combs v. State, 81 Ga. 780, 8 S. E. Rep. 
318. 
66 Young v. Comm., 14 Bush, 161. 
66 Neighbors v. Comm., (Ky.) 9 S. W. 
Rep. 718. 
136 Ch. 6] 
LOCAL OPTION. 
§ 103 
and that the entry shall be competent to show when the act went 
into effect, it is not error for the court to read from the minutes, and 
instruct the jury as to when the act went into effect in the county 
wherein the offense is alleged to have been committed.67 
§ 103. Contesting Validity of Election. 
In some of the states, and perhaps in most, the rule is that a 
defendant, in a prosecution for selling intoxicating liquor contrary to 
a local option law, cannot attack the validity of the election adopt- 
ing the law. On this point the supreme court of North Carolina 
very sensibly observes that "the ascertainment and declaration of 
the result of the election was prima facie correct, and it was con- 
clusive until, in a proper action brought for the purpose, the true 
result otherwise should be ascertained and declared by a judicial 
determination. The law contemplates and intends, generally, that 
the result of an election, as determined by the proper election offi- 
cers, shall stand and be effective until it shall be regularly contested 
and reversed or adjudged to be void by a tribunal having jurisdic- 
tion for that purpose. It would lead to confusion and ridiculous 
absurdity to allow the validity and result of an election to be con- 
tested every time the result of it, as determined by the election offi- 
cers, became material collaterally in a litigation. In the present 
case, the defendant might be able to prove facts showing that the 
election mentioned was void for one cause or another. Another 
defendant, charged with a like offense, might be less fortunate, and 
the state might show that it was regular and valid; and so on 
indefinitely. The law does not provide for such continual and 
repeated contests in every case that may arise. It intends that one 
contest, properly instituted for the purpose, shall establish the 
validity or invalidity of the election questioned. If the present 
defendant or others were dissatisfied with the conduct of the elec- 
tion, or the result of it as declared, they should have promptly brought 
their action, as they might have done, to contest its validity and the 
correctness of the ascertained result. They had the right to do so, 
67 Combs v. State, 81 Ga. 780, 8 S. E. Rep. 318. 
137 § 104 
LAW7 OF INTOXICATING LIQUORS. 
[Ch. 6 
and, as they did not, it cannot be attacked in a collateral action. 
This is well settled."68 But in some of the states,-as, in Texas,- 
the law gives to any voter of the local option district the right to 
contest the validity of such election within a certain number of days; 
and this, it is held, does not prevent one accused of violating the 
order of prohibition from showing at a later time that it was void.59 
§ 104. Effect of Local Option on Prior Liquor Laws. 
It is a general rule that when the provisions of a local option law 
have been duly adopted and put in force in any given district, it then 
constitutes the exclusive system for the regulation of liquor-selling in 
that locality, and has the effect to abrogate, during its continuance, 
all laws and provisions of laws which are inconsistent with its terms, 
as well those prescribing penalties for given acts as those regarding 
the granting of licenses or otherwise legalizing the sale.60 Perhaps 
it is more correct to say that such prior laws are suspended by the 
local option law than that they are repealed by it. "We do not 
think," says the court in Florida, "that it amounts to a repeal of the 
general revenue statute, but only to a suspension of its operation, in 
so far as it regulates the sale of intoxicating liquors, wine, or beer, 
as long as the local option article is in force in the county or any 
particular election district. Upon the local option article ceasing to 
be operative, these provisions of the revenue act, which had been 
suspended by the enforcement of the article, will resume their sway 
in the county or precinct."61 And it also appears that, unless other- 
68 State v. Cooper, 101 N. Car. 684, 8 
S. E. Rep. 134. See, also. State v. 
Emery, 98 N. Car. 768, 3 S. E. Rep. 810; 
Comm. v. Lillard, (Ky.) 9 S. W. Rep. 
710. 
69 Curry v. State, 28 Tex. App. 475,13 
S. W. Rep. 752. See, also, Young v. 
Comm., 14 Bush, 161. 
60Rauch v. Comm., 78 Pa. St. 490; 
Comm. v. Mueller, *81 Pa. St. 127; 
State v. Yewell, 63 Md. 120; Wheeler v. 
State, 64 Miss. 462, 1 South. Rep. 632; 
Young v. Comm., 14 Bush, 161; Comm, 
v. Jarrell, (Ky.) 5 S. W. Rep. 763; Rob- 
ertson v. State, 5 Tex. App. 155; State 
v. Weeks, 38 Mo. App. 566; Minnehaha 
Co. v. Champion, 5 Dak. 433, 41 N. W. 
Rep. 754. Compare Vallance v. King, 
3 Barb. 548; State v. Smiley, 101 N. Car. 
709, 7 S. E. Rep. 904; State v. Carter, 28 
S. Car. 1, 4 S. E. Rep. 790; State v. 
Smith, (Fla.) 7 South. Rep. 848; Terri- 
tory v. Pratt, (Dak.) 43 N. W. Rep. 711; 
Winterton v. State, 65 Miss. 238, 3 
South. Rep. 735. 
61 Butler v. State, 25 Fla. 347, 6 South. 
Rep. 67. 
138 Ch. 6] 
LOCAL OPTION. 
§ 104 
wise provided, the adoption of local option will exempt from punish- 
ment those persons who had become liable thereto by the violation 
of the prior laws thus abrogated.62 A local option statute, having a 
general repealing clause, will abrogate, so far as the two statutes are 
inconsistent, a prior act empowering the corporate authorities of a 
particular town to grant licenses to retail liquors within the corporate 
limits of the town.63 But of course if the election results in favor of 
licensing, it has no effect on any prior law; the general liquor law 
of the state is not abrogated by the mere holding of a local option 
election.64 And if the local option law does not prescribe any penal- 
ties for illegal acts, such acts are punishable under the provisions of 
the former statutes.65 So where the local option law provides that, 
"in addition to the penalties now prescribed by law,'? unlawful sales 
may be enjoined, this has the effect, by implication, to continue in force 
and incorporate the penalties referred to.66 When such law provides 
that an election resulting in favor of license shall not affect localities 
in which the sale of liquors is already prohibited by law, a town can- 
not, by voting for license, legalize sales within its limits, when it is 
within two miles of a certain church, a locality within which the sale 
of liquor is already prohibited.67 When the local option law contains 
a provision that it shall not interfere with the manufacture or sale 
of domestic wines or cider, it is held that the act does not take from 
the local authorities the power, under the general law, to issue a 
license to retail domestic wines in quantities less than a quart.68 In 
Missouri, it is held that the adoption by a city of the local option 
law does not affect the right of a druggist therein to sell liquor on 
the prescription of a registered and practising physician, as authorized 
by a prior law.69 In Texas, where the local option law provides that 
62 Boone v. State, 12 Tex. App. 184. 
63 Tatum v. State, 79 Ga. 176, 3 S. E. 
Rep. 907. 
64 Hearn v. Brogan, 64 Miss. 334, 1 
South Rep. 246. And see Zarresseller 
v. People, 17 Ill. 101. 
65 Winterton v. State, 65 Miss. 238, 3 
South Rep. 735. 
66Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746. 
67 State v. Hollingsworth, 100 N. Car. 
535, 6 S. E. Rep. 417. And see McGru- 
der v. State, 83 Ga. 616, 10 S. E. Rep. 
281. 
e8 Brown v. State, 79 Ga. 473, 4 S. E 
Rep. 256. 
69 Ex parte Swann, 96 Mo. 44, 9 S. W. 
Rep. 10; State v. Williams, 38 Mo. App. 
37. 
139 § 106 
[Ch. 6 
LAW7 OF INTOXICATING LIQUORS. 
no election shall be held within the same prescribed limits in less 
than two years after a previous election, but at the expiration of that 
time the commissioners' court, whenever they deem it expedient, may 
order another election, it is ruled that where prohibition has been 
adopted in a precinct, its subsequent adoption in the same precinct, 
at an election held more than two years thereafter, but under an 
order made by the court within the two years, will leave prohibition 
in force, even if the second election is void.70 
§ 105. Effect of Changing Boundary of District. 
Where a local option law governs an entire district, and a portion 
of the district is cut off and joined to other territory under a new 
name, the local option law still remains operative through the part 
not thus severed.71 And also, where a new election district is carved 
out of one where prohibition is in force, the same law will continue 
in force in the new district.72 Merely changing the name of a town- 
ship will not have the effect of reversing its previous decision under 
the local option law.73 And where a district embracing a city, and 
including many voters outside the city boundary, had voted in favor 
of local prohibition, and afterwards the city, without legislative 
authority, again voted on the question, and a majority of the votes 
were against prohibition, and licenses were granted, it was held that 
the district could not thus be severed, except at the will of the legis- 
lature, and the vote in part of the district on the question did not 
protect the licensees.74 
§ 106. Repeal of Local Option. 
In Texas, it is within the power of the qualified voters of a justice's 
precinct, town, or city to repeal the local option law within the limits 
70 Ex parte Cox, 28 Tex. App. 537, 13 
S. W. Rep. 862. 
71 Jones v. State, 67 Md. 256, 10 Atl. 
Rep. 216. 
72Higgins v. State, 64 Md. 419, 1 Atl. 
Rep. 876; Prestwood v. State, 88 Ala. 
235, 7 South Rep. 259. 
73 State v. Cooper, 101 N. Car 684, 8 S. 
E. Rep. 134. 
74 Comm. v. King, 86 Ky. 436, 6 S. W. 
Rep. 124. 
140 Ch. 6] 
LOCAL OPTION. 
§ 106 
of such precinct, town, or city, in the manner provided by law, not- 
withstanding such law has been adopted and is in force throughout 
the entire county.76 But in the other states, it is believed, no such 
severance of the district would be legal. The election to repeal the 
law cannot be called for a territory forming a part only of that for 
which the first election was held.76 It is a rule that the repeal of a 
penal law, when the repealing statute substitutes no other penalty, 
exempts from punishment all persons who have offended against the 
provisions of the repealed law, unless it be declared otherwise in the 
repealing act. For this reason, if a county adopts, and afterwards 
rescinds, the local option law, the abrogation of its provisions in this 
manner being equivalent to a legislative repeal, it will exempt offenders 
from punishment whether their cases were pending in courts of orig- 
inal jurisdiction or in appellate courts, at the time of the rescission 
of the law.77 
75 Whisenhunt v. State, 18 Tex. App. 
491; Woodlief v. State, 21 Tex. App. 
412, 2 S. W. Rep. 812. 
76 Caldwell v. Grider, 88 Ala. 421, 7 
South. Rep. 203; Comm. v. King, 86 Ky. 
436, 6 S. W. Rep. 124. 
77 Freese v. State, 14 Tex. App. 31; 
Prather v. State, Id. 453; Wells v. State, 
24 Tex. App. 230, 5 S. W. Rep. 830; Daw- 
son v. State, 25 Tex. App. 670, 8 S. W. 
Rep. 820; Halfin v. State, 5 Tex. App. 
212; Monroe v. State, 8 Tex. App. 343. 
141 § 107 
LAW OF INTOXICATING LIQUORS. 
[Ch. 7 
CHAPTER VII. 
TAXATION OF THE LIQUOR TRAFFIC. 
§ 107. Constitutionality. 
108. Taxation and License Distinguished. 
109. Uniformity in Taxation. 
110. Conflict with Other Liquor Laws. 
111. Lien of Tax on Real Property. 
112. Levy and Collection of Tax. 
113. United States Internal Revenue Tax. 
§ 107. Constitutionality. 
If the legislature of a state, in the exercise of its discretion as to 
the measures best adapted to lessen the evils of intemperance, sees 
fit to impose a tax upon the manufacture of intoxicating liquors and 
upon the traffic in them, instead of adopting one of the other more 
directly repressive systems, there can be no doubt of its constitu- 
tional power so to do.1 It is entirely customary, under our systems, 
to impose exceptional taxation upon certain pursuits and callings, 
upon the theory that, from their relation to the public interests, or 
by reason of the necessity of limiting the number of persons who may 
engage in them, they should be classed as special privileges or fran- 
chises. And although such an occupation tax may be additional to 
a tax upon the person's stock in trade, as property, there is no valid 
objection to selecting him for the bearing of an exceptional burden. 
It is true that the primary object of taxation is to raise revenue, 
while the regulation of a dangerous or pernicious business is referable 
to the police power. But it does not follow that the legislature, in 
providing for revenue, are to be entirely excluded from other considera- 
tions. "The right of any sovereignty," says Judge Cooley, "to look 
beyond the immediate purpose to the general effect, neither is nor 
can be disputed. The government has general authority to raise a 
1 Napier v. Hodges. 31 Tex. 287; State v. Volkman, 20 La. Ann. 585; Cooley, 
Taxation, 580; supra, § 55, 
142 Ch. 7] 
TAXATION OF LIQUOR TRAFFIC. 
§ 108 
revenue and to choose the methods of doing so; it has also general 
authority over the regulation of relative rights, privileges, and duties, 
and there is no rule of reason or policy in government which can re- 
quire the legislature, when making laws with the one object in view, 
to exclude carefully from its attention the other. Nevertheless, cases 
of this nature are to be regarded as cases of taxation. Revenue is 
the primary purpose, and the regulation results from the methods of 
apportionment that are resorted to in obtaining the revenue. Only 
those cases where regulation is the primary purpose can be specially 
referred to the police power."2 And where the legislature has power 
to tax an occupation, it has the further power to make it a penal 
offense for any person to engage in that occupation without first pay- 
ing the tax imposed.3 A statute taxing the business of liquor-selling 
may provide for the collection of the tax by the county treasurer, as 
other taxes are collected, and may impose penalties for its non-pay- 
ment, and for the refusal of a person engaged in the business, on 
demand of the assessor, to sign and verify the statement of certain 
returns required by the act. Such provisions cannot be said to de- 
prive the citizen of his rights or property without due process of 
law.4 Regard must be had, however, in the imposition of such taxes, 
as in all other acts of state legislation, to the provisions of the fed- 
eral constitution. A tax upon liquors, or upon the traffic in them, 
must make no discrimination against the citizens or the products of 
other states. If it does, it will be unconstitutional, either as an 
abridgment of the rights of citizenship secured by the supreme law, 
or as an interference with commerce between the several states.6 
§ 108. Taxation and. License Distinguished. 
The necessity of drawing an accurate distinction between taxation 
and the licensing of a business arises in those states where, as in 
2 Cooley, Taxation, 587. 
8Tonella v. State, 4 Tex. App. 325; 
Languille v. State, Id. 312. 
4 Adler v. Whitbeck, 44 Ohio St. 539, 
9 N. E. Rep. 672. 
6 Tiernan v. Rinker, 102 U. S. 123; 
Welton v. Missouri, 91 U. S. 275; Wal- 
ling v. Michigan, 116 U. S. 446, 6 Sup. 
Ct. Rep. 454; Lyng v. Michigan, 135 U. 
S. 161, 10 Sup. Ct. Rep. 725; supra, §§ 
44, 79. 
143 144 
LAW OF INTOXICATING LIQUORS. 
[Ch. 7 
Ohio, the constitution forbids the grant of "licenses" to traffic in 
intoxicating liquors. Now it is well settled that although the legis- 
lature is thus prohibited from licensing the sale of liquor, this does 
not prevent it from laying a tax on that business, with the primary 
object of raising revenue, and also as a means of discouraging it, or 
of providing against the evils which it entails. Neither the tax so 
imposed, nor a provision that the same shall attach as a lien on the 
property in which the business is conducted, constitutes a license. 
Nor does the tax necessarily imply either protection to the business 
by the state or consent to its being carried on.6 But this principle 
applies only in cases where the business of manufacturing or selling 
intoxicating liquors is not made unlawful by the constitution or any 
law of the state. If that business is under no legal condemnation, 
but is open to all persons to engage in, then the imposition of a tax 
upon it cannot be regarded as a license, because, by universal con- 
sent, a license is defined as a permission to do some act or engage 
in some occupation which, without such permission, would be unlaw- 
ful. A license law, therefore, assumes the illegality of the business, 
and denounces penalties upon those who pursue it without previously 
protecting themselves by procuring a license. Also it restricts the 
right to obtain a license to certain classes of persons, and considers 
their moral qualifications in making the selection. Taxation, on the 
other hand, assumes the legality of the business for any who may 
choose to pursue it, but imposes a burden, for the public benefit, 
upon those engaging in it. The case is not altered by the fact that 
payment of the tax is made a condition precedent to the right to 
engage in the business. Hence it follows that any law which requires 
certain acts, other than the mere payment of the tax, to be done by 
the party as a prerequisite to his right to enter upon the pursuit of 
the trade in question, and makes it a penal offense to engage in the 
business without such formalities, is in reality a license law, no mat- 
ter whether it be called a tax or by any other name. This was the 
case with a law formerly enacted in Ohio, which required every per- 
6 State v. Frame, 89 Ohio St. 399; Adler Ohio St. 576, 9 N. E. Rep. 683; Young- 
v. Whitbeck, 44 Ohio St. 539, 9 N. E. blood v. Sexton, 32 Mich. 406, 20 Am. 
Rep. 672; Anderson v. Brewster, 44 Rep. 654; Cooley, Taxation, 594. 
144 Ch. 7] 
TAXATION OF LIQUOR TRAFFIC. 
§ 108 
son engaging in the traffic in intoxicating liquors to pay a specified 
sum of money, annually, and to execute a bond, with the further 
provision that any person who should engage in such traffic without 
having executed the bond, or after his bond was adjudged forfeited, 
should be deemed guilty of a misdemeanor. It was held unconstitu- 
tional, as being in effect a license, and not a tax.7 In the case cited, 
Okey, C. J., said: "One who carries on the traffic under this statute, 
without complying with its provisions, commits a criminal offense, 
while a dealer who complies with it obtains privileges denied to 
others." And again: "In substance, it is, as to all dealers who fail 
to comply with its provisions, a stringent prohibitory liquor law, and 
as to all dealers who do so comply, it grants the privilege in the 
future to deal in such liquors, to the extent not prohibited by pre- 
viously existing laws. In legal effect it is an act granting to those 
who comply with its provisions licenses to traffic in intoxicating liq- 
uors, to the exclusion of all other dealers, and hence it is in conflict 
with the constitutional provision under consideration. Though not 
called a license law, it authorizes the granting of that which in effect 
is as clearly a license as the privilege granted under the act of 1831. 
The quality of a thing is not altered by changing its name; and the 
special privilege to traffic in liquors which is conferred under this 
act is as plainly a license as if it had been in terms so called." And 
the same thing was held to be true of another act in that state, 
which provided that whoever should engage or continue in such traffic 
upon land or premises not owned by him, without the written con- 
sent of the owner thereof, should be held guilty of a misdemeanor.8 
And the converse of our main proposition above is equally true in law. 
That is, the exaction of license fees, for the sale of liquor, is not taxa- 
tion, in either the ordinary or the constitutional signification of that 
term.9 
7 State v. Hipp, 38 Ohio St. 199. 
8Butzman v. Whitbeck, 42 Ohio St. 
223. And see, further, King v. Cappel- 
lar, Id. 218; State v. Sinks, Id. 345. 
9PleuIer v. State, 11 Nebr. 547, 10 N. 
W. Rep. 481. 
INTOX.LIQ. 10 
145 § 109 
LAW OF INTOXICATING LIQUORS. 
[Ch. 7 
§ 109. Uniformity in Taxation. 
It is a general principle of constitutional law that taxes shall be 
equal and uniform in their operation. This, however, does not pre- 
vent the classification of occupations and their unequal taxation, if the 
differential process does not discriminate between persons properly 
belonging to the same class. For instance, where the legislature is 
empowered to tax occupations, with a proviso that such taxes shall 
be "equal and uniform upon the same class of subjects," this does not 
necessitate equality and uniformity as between different classes of 
occupations, nor the imposition of the same conditions upon every 
class. And hence a law is not unconstitutional because, as a condi- 
tion precedent to engaging in the business of a retail liquor-dealer, 
it requires the tax to be paid for a year in advance, but permits the 
tax on other occupations to be paid quarterly, and requires a license 
to pursue such occupation, but permits others to be pursued without 
a license.10 Neither is this constitutional principle violated by a law 
which creates a lien upon realty upon which a saloon is established, 
for the amount of the license imposed.11 And while it is requisite 
that all persons pursuing the same occupation in the same way should 
be taxed alike, there is no objection to making a distinction between 
different branches or different forms of the same business, according 
to the degree of public importance attaching to their due regulation, 
or to other inherent distinguishing circumstances. Thus, the legis- 
lature may lawfully discriminate, for purposes of taxation, between 
distilleries and breweries on the one hand, and saloons on the other 
hand.12 And one sum may be charged for a license to sell liquors 
generally, and a less sum for a license to sell malt liquors only.13 
So a statute imposing a smaller license tax on proprietors of bars or 
drinking saloons kept on steamboats owned and registered in the state 
than on owners of bars kept on land, does not violate the constitutional 
provision under consideration.14 And a law taxing all of a class alike, 
10 Fahey v. State, 27 Tex. App. 146, 11 
S. W. Rep. 108. 
11 Anderson v. Brewster, 44 Ohio St. 
576, 9 N. E. Rep. 683. 
12 Adler v. Whitbeck, 44 Ohio St. 539, 
9 N. E. Rep. 672. 
13 Timm v. Harrison, 109 Ill. 513. 
14 State v. Rolle, 30 La. Ann. 991, 31 
146 Ch. 7] 
§ 111 
TAXATION OF LIQUOR TRAFFIC. 
as liquor dealers within five miles of a town, at one price, and liquor 
dealers at wayside inns at a less price, is not invalid for lack of uni- 
formity.15 
§ 110. Conflict with. Other Liquor Laws. 
The enactment of a statute taxing the liquor traffic does not pre- 
vent the state, in the exercise of its sovereign powers of taxation and 
police, from passing further laws affecting the business. The fact 
that a saloon-keeper has complied with all the provisions of a tax 
law, before an amendment to it became operative, does not give him 
a vested right to sell under the conditions of the former law.18 A 
law requiring persons engaged in the sale of spirituous liquors to pay 
a tax and take out a license, and authorizing the sheriff to enforce 
payment, does not conflict with a statute declaring it an offense to 
retail liquor without a license.17 
§ 111. Lien of Tax on Real Property. 
In some of the states, the tax assessed upon a liquor dealer is made 
a lien upon real property occupied by him as a lessee. In regard to 
such a law, it is said: "If the real property on or in which the busi- 
ness is conducted is held by the tenant under a lease for a term made 
prior to the passage of the statute, the provisions for a lien in the 
second section would not operate. It might well be considered an 
unauthorized interference with private property, and contrary to the 
legislative intent, to subject the freehold of a lessor for assessments 
against the business of a lessee, over which the lessor could exercise 
no control during the term granted under a pre-existing lease." But 
the law will create a valid lien upon the property when the land is 
leased after the passage of the law, or if it is held by a tenancy at 
will from month to month. "If a tenant engages in a business 
which, by causing intemperance, pauperism, and crime, becomes a 
Am. Rep. 234; Kaliski v. Grady, 25 La. 
Ann. 576. 
16 Territory v. Connell, (Ariz.) 16 Pac. 
Rep. 209. 
16 Reithmiller v. People, 44 Mich. 280, 
6 N. W. Rep. 667. 
17 New v. State, 34 Tex. 100. 
147 § 112 
LAW OF INTOXICATING LIQUORS. 
[Ch. 7 
proper subject for the exertion of the police power of the state, the 
legislature may with propriety include the premises of the lessor, 
which sustain and derive profit and advantage from the subject-mat- 
ter upon which such power is exerted." 18 In Michigan, it is held 
that the act of 1875, postponing all liens, mortgages, conveyances, 
and incumbrances to the lien of the liquor tax, does not apply to liens 
or conveyances attaching before the passage of the act.19 
§ 112. Levy and Collection of Tax. 
An order of the proper officers, that there shall be levied on all oc- 
cupations in the county, not specially provided for by the laws of the 
state, "a tax of one-half of the state occupation tax, as levied by the 
laws of the state," is a sufficient levy of a tax upon the occupation 
of liquor dealers, a state statute taxing such occupation at a speci- 
fied sum.20 Under the United States internal revenue laws, two liq- 
uor assessments, covering partially the same period, will be presumed 
to be for different liquors.21 In Ohio, under the "Dow law," where 
the assessment year begins on the fourth Monday of May, it is held 
that one beginning business on the first day of May is required to pay 
an amount proportioned to the remainder of the assessment year, 
but not less than a certain minimum sum.22 Under the general rule 
that all taxes, unless otherwise specified, are payable in money only, 
it is held that the note of a liquor dealer, payable on time, cannot be 
received in satisfaction of the tax imposed upon him, and, if taken in 
payment thereof, is void as in violation of public policy.23 Where the 
law under which a liquor tax was levied was unconstitutional and 
void, a person who, under protest, has made the payment required 
by the act, may recover back the sum so paid.24 
18 Anderson v. Brewster, 44 Ohio St. 
576, 9 N. E. Rep. 683. 
19 Finn v. Haynes, 37 Mich. 63. 
20 Wade v. State, 22 Tex. App. 629, 3 
:S. W. Rep. 786. 
21 United States v. O'Neill, 19 Fed. 
Bep. 567. 
22Kusta v. Kimberly, 23 Wkly. Law 
Bui. 379. 
23 Doran v. Phillips, 47 Mich. 228, 10 
N. W. Rep. 350. See Cooley. Taxation, 
452, 710; Black, Tax-Titles. § 50. 
^Catoir v. Watterson, 38 Ohio St. 
319. 
148 Ch. 7] 
§ 113 
TAXATION OF LIQUOR TRAFFIC. 
§ 113. United States Internal Revenue Tax. 
A license from the United States, under the internal revenue laws, 
conveys to the licensee no authority to carry on the licensed business 
within a state. The requirement of payment for such licenses is 
only a mode of imposing taxes on the licensed business, and the pro- 
hibition, under penalties, against carrying on the business without 
a license is only a mode of enforcing the payment of such taxes.26 A 
government license, therefore, cannot be used as a shield against the 
enforcement of state laws. It is purely and simply a form of taxa- 
tion. For the internal revenue laws are enacted solely as a means 
of raising revenue. They have no effect upon the internal police of 
the states, with which congress has nothing to do, and cannot be con- 
strued as evincing an intention to either legalize or regulate the traffic 
in intoxicating liquors. That a dealer has already paid a tax to the 
United States gives him no claim to immunity from state or municipal 
taxation. And if his business is put under the ban of state law, his 
government license is no justification for his continuing it.26 All per- 
sons or corporations engaging in the traffic are subject to pay the 
United States tax. For example, a city, if it distills and sells spirits, 
whether authorized by its charter or not, must pay the tax.27 And 
the stockholders of a corporation engaged in operating a distillery 
are "persons interested in the use of the distillery," within the mean- 
ing of the statute which declares that all such persons shall be jointly 
and severally liable for the taxes imposed by law on the distilled spir- 
its produced therein.28 
25 License Tax Cases, 5 Wall, 462. 
26 Supra, § 87; infra, § 125. 
27 Salt Lake City v. Hollister, 3 Utah, 
200, 2 Pac. Rep. 200. 
28 United States v. Wolters, 46 Fed. 
Rep. 509. 
149 § 114 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
CHAPTER VIH. 
THE LICENSING SYSTEM. 
Part I. Constitutionality of License Laws. 
§ 114. The Licensing System. 
115. License Laws Constitutional 
116. Repeal of Prior Laws by Enactment of License Law. 
Part II. Nature and Effect of Licenses. 
117. Definition of License. 
118. No License Created by Parol or Implication. 
119. Wrongful Refusal or Neglect to Grant License. 
120. Impossibility of Obtaining License. 
121. Performance of Conditions not Equivalent to Obtaining 
License. 
122. Retroactive Effect of License. 
123. Number of Licenses required. 
124. Separate Licenses Required from Different Jurisdictions. 
125. U. S. License no Protection against State Laws. 
126. Effect of Government License. 
127. Licenses are not Contracts. 
128. License Gives no Vested Rights. 
129. Effect of Repeal of Law on Unexpired License. 
130. License is not Assignable. 
131. License does not Pass to Administrator. 
132. License Protects Servant or Agent. 
133. Removal of Principal from State. 
134. Rights of Partners under License. 
135. Statutory Authority for Transfer of License. 
136. Sales under Expired License. 
137. Invalid License no Protection. 
Part III. What Persons are Required to be Licensed. 
138. Persons Eligible to be Licensed. 
139. What Persons must Take out License. 
140. Wholesalers. 
141. Manufacturers. 
142. Social Clubs. 
143. License to Joint Parties. 
Part IV. Form and Conditions of License. 
144. Form of License. 
145. Designation of Place of Sale. 
146. Conditions in License. 
147. Duration of License. 
150 Ch. 8] 
THE LICENSING SYSTEM. 
§ 114 
Part V. Limitation of Rights Secured by License. 
§ 148. License Subject to Existing Laws. 
149. Effect of Laws Subsequently Enacted. 
150. Restriction as to Place of Sale. 
151. Laws Prohibiting Sales to Particular Classes of Persons. 
152. Requirement that License be Displayed. 
153. Screen Law. 
Part VI. Proceedings to Obtain License. 
154. Power to Grant Licenses. 
155. Power cannot be Delegated. 
156. Application for License. 
157. Affidavit of Applicant. 
158. Notice of Application. 
159. Recommendation of Application. 
160. Who may Sign Recommendation. 
161. Number of Persons Recommending. 
162. Moral Qualifications of Applicant. 
163. Requirement as to Residence. 
164. Remonstrances. 
165. Right to Contest Application. 
166. Appointing Day for Hearing. 
167. Procedure on Hearing Application. 
168. Evidence on Application. 
169. Disqualification of Judges. 
170. Discretion in Granting or Refusing License. 
171. Nature of this Discretion. 
172. Mandamus to Compel Issuing of License. 
173. Appeal from Order of Licensing Authority. 
174. Certiorari to Review Proceedings. 
175. Restraining Grant of License. 
176. Criminal Responsibility of Licensing Board. 
177. Action for Refusal to Issue License. 
178. License not Collaterally Impeachable. 
Part VIL License Fees. 
179. License Fees not Taxation. 
180. Fixing Amount of Fees. 
181. Reasonableness of Amount. 
182. Ordinances Increasing Amount of Fee. 
183. Payment in Advance Required. 
184. License Fee Payable in Money. 
185. Collection of License Fees. 
186. Disposition of License Moneys 
187. Recovery of Excessive or Illegal Fee Paid. 
188. Refunding Money on Refusal or Cancellation of License. 
151 § 114 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
Part VIII. Revocation of Licenses. 
§ 189. Power to Revoke Licenses. 
190. Revocation by Repeal of Law. 
191. Jurisdiction for Revocation. 
192. Causes for Revocation of License. 
193. Notice to Licensee. 
194. Proceedings and Evidence. 
195. Appeal and Review. 
196. Effect of Revocation. 
Part IX. Bonds of Licensees. 
197. Bond as Condition Precedent to Validity of License. 
198. Form and Contents of Bond. 
199. Approval of Bond. 
200. Breach of Condition of Bond. 
201. Actions on Bonds. 
202. Damages Recoverable in Suit on Bond. 
203. Liability of Sureties. 
Part X. Town Agents. 
204. Appointment and Character of Town Agents. 
205. Powers and Duties of Town Agents. 
Part I. Constitutionality of License Laws. 
§ 114. The Licensing System. 
Of the various systems of legislation for the suppression of the 
evils of intemperance or of regulating the traffic in alcoholic bever- 
ages, that which is based upon the granting of licenses to sell intoxi- 
cants is the one prevailing in the greatest number of states. The 
provisions of the various statutes differ widely in points of detail. 
But the fundamental idea of all is the restriction of the right to sell 
liquor to a limited number of responsible and trustworthy persons, 
with such conditions as to the conduct of their business, and the 
classes of persons to whom they may sell, as will tend to reduce the 
inevitable evils of the traffic to a minimum. Laws of this character 
usually specify the personal qualifications of those to whom the 
privilege may be accorded. They are required, for example, to be 
temperate and of good moral character, adults, citizens, and residents 
of the state or district. The method of applying for and obtaining 
licenses is also prescribed in detail, provision being commonly made 
152 Ch. 8] 
THE LICENSING SYSTEM. 
§ 115 
for a written petition, endorsed by a certain number of persons, 
which is referred to a court or board, empowered to hear counter- 
petitions or remonstrances, and invested with a sound discretion as 
to granting or refusing the application. The exaction of a fee from 
the persons licensed is also a part of this system. But in some of 
the states it is hardly greater in amount than is necessary to cover 
the expenses of hearing the application and granting the license; 
while in others it is set at a high figure, partly for the purpose of 
lessening the number of saloons, and partly with a view to making 
the dealers bear an extra portion of the expense entailed upon the 
public by the pauperism and crime which the trade engenders. As 
a rule, also, the licensee is required to furnish a bond, with sureties, 
conditioned for his due observance of the law. And he is further 
made subject to regulations as to the place and conduct of his 
business, as to the hours and days when he may not ply his trade, 
and as to the persons to whom he may not sell, and to other restric- 
tions too numerous and diverse to be mentioned in this brief sum- 
mary. The effect of this system is to make the traffic in intoxicating 
liquors, save by those who have been duly licensed, an unlawful 
avocation, and, usually, a penal offense. In other words, the right 
to sell liquor, which, in the absence of any statutory provision, 
might have been exercised by any one, is by the statute converted 
into a franchise, and can be exercised only by those who have actually 
obtained a license.1 And we usually find, in the statutes, careful 
provision made for the penal consequence which shall follow the 
infraction of any prohibition of the law, either by those who engage 
in the business without license, or by licensed dealers who disregard 
the restrictions imposed upon the exercise of their privilege. 
§ 115. License Laws Constitutional. 
In a former chapter we had occasion to examine in detail the 
validity of laws enacted as a part of the licensing system. And 
it was there seen that statutes of this character, with provisions such 
as those outlined above, are almost universally held to be free from 
1 Mayor of New York v. Mason, 4 E. D. Smith, 142. 
153 § 116 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
constitutional objection. In particular, it appeared that, although 
the law may require the applicant to procure the assent or recom- 
mendation of a certain number or proportion of the residents of his 
district, it cannot therefore be said unlawfully to subject him to the 
will of his neighbors, or to abridge his rights as a citizen; that the 
privilege might be restricted to citizens or residents of the state, with- 
out any violation of the provisions of the federal constitution; that 
it was competent to confine the granting of licenses to certain classes 
of citizens, or to require certain proper qualifications, discriminating 
against the vicious or disreputable; that laws regulating the conduct 
of the licensee's business, calculated to guard against the abuse of 
the privilege or the grosser evils attending its exercise, were not 
impeachable on constitutional grounds; and that the revocation of 
a license, either for violations of the law under which it was held, or 
upon a change of legislative policy, infringed no constitutional rights 
of the holder.2 In respect to most of these questions, the validity of 
such laws has ceased practically to be contested. As concerns others, 
any doubt that may arise will admit of easy solution in accordance 
with well settled general principles. 
§ 116. Repeal of Prior Laws by Enactment of License 
Law. 
Any radical change of state policy, in the system of liquor legis- 
lation, will usually be attended by an entire repeal of the laws on 
that subject previously in force. Thus, when a state adopts total 
prohibition as its rule, the license laws, with all their subsidiary and 
related enactments, are thereby abrogated. And conversely, when 
a statute which provides for licensing the sale of liquors, and pro- 
hibits the sale except under license, is intended to be exhaustive of 
the subject of liquor-selling, it will, by necessary intendment, repeal 
a previously existing law which prohibited such sale absolutely.8 But 
whether the penalties denounced by the former law will be abrogated 
or not, will depend upon whether they are consistent with those pre- 
2 Supra, 46-51. And see State v. 
Gray, (Conn.) 22 Atl. Rep. 675. 
8 Cullen v. State, 42 Conn. 55. And 
see State v. City of Spokane Falls, 
(Wash.) 25 Pac. Rep. 903. 
154 Ch. 8] 
THE LICENSING SYSTEM. 
§ 117 
scribed by the new act, or are duplicated therein, or may be regarded 
as cumulative.4 And what effect the later statute will have upon 
penalties incurred, or prosecutions begun, under the former law, will 
depend upon the terms of the new act. As a general rme, the repeal 
of a penal law, when the repealing statute substitutes no other pen- 
alty, exempts from punishment all persons who have offended against 
the provisions of the repealed law, unless it be declared otherwise in 
the repealing act.6 
Part II. Nature and Effect of Licenses. 
§ 117. Definition of License. 
"A license is essentially the granting of a special privilege to one 
or more persons, not enjoyed by citizens generally, or at least, not 
enjoyed by a class of citizens to which the licensee belongs. A 
common right is not the creature of a license law." 6 "In a general 
sense, a license is permission granted by some competent authority 
to do an act which, without such permission, would be illegal." 7 
"The popular understanding of the word 'license' is undoubtedly a 
permission to do something which, without the license, would not be 
allowable. This is also the legal meaning. The object of a license 
is to confer a right which does not exist without a license."8 "A 
license is a privilege granted by the state, usually on payment of a 
valuable consideration, though this is not essential. To constitute a 
privilege, the grant must confer authority to do something which, 
without the grant, would be illegal; for if what is to be done under 
the license is open to every one without it, the grant would be merely 
idle and nugatory, conferring no privilege whatever. But the thing 
to be done may be something lawful in itself, and only prohibited for 
the purposes of the license; that is to say, prohibited in order to 
compel the taking out of a license." 9 From these definitions, which 
« State v. Sutton, 100 N. Car. 474, 6 S. 
E. Rep. 687. 
5 Supra, § 106. 
6 State v. Frame, 39 Ohio St. 399, 413. 
7 State v. Hipp, 38 Ohio St. 199, 226. 
8 Youngblood v. Sexton, 32 Mich. 406, 
20 Am. Rep. 654. 
9 Cooley, Taxation, 596. 
155 § ns 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
are among the best to be found in the books, it will be apparent that 
three leading ideas are involved in the definition of a license under 
the liquor laws. First, it confers a special privilege or franchise, 
upon selected persons, to pursue a calling not open to all. Second, 
it legalizes acts which, if done without its protection, would be offenses 
against the statute. Third, it is a privilege granted as part of a 
system of police regulation, and herein is distinguishable from taxa- 
tion. A tax upon a business is imposed primarily as a means of 
raising revenue, and does not lose its character because, as a second- 
ary object, it contemplates the regulation of the business. A license- 
fee is exacted primarily as a means of restricting or regulating a 
trade, and it continues to be such although, incidentally, it may pro- 
duce an addition to the public revenue.10 
§ 118. No License Created by Parol or Implication. 
Licenses to sell liquor are required to be in writing and in a cer- 
tain form, and verbal permission, even from the officer authorized to 
issue licenses, and upon performance of the prerequisite conditions, 
is not equivalent to a formal license.11 Nor will any license pass, or 
the necessity of obtaining it be dispensed with, by mere implication 
from the statute. For example, where a law declares that no license 
shall be granted outside of cities and towns, and that it shall be 
unlawful to sell without license, this does not imply that liquors may 
be sold in cities and towns without a license.12 So a statutory pro- 
vision that "any person who, after the 15th day of January in any 
year, engages in or carries on any business for which a license is 
required," shall be fined, does not authorize one to engage in such 
business prior to January 15th without a license.13 So again, a con- 
viction and fine for retailing liquor without a license, does not oper- 
ate as a license to sell for a year.14 And an order of the selectmen 
of a town to an officer, directing him to cause all saloons to be closed 
at a certain hour, an.d containing an intimation of an intent to prose- 
10 See, supra, § 108. 
11 State v. Moore, 14 N. H. 451; Law- 
rence v. Gracy, 11 Johns. 179. 
12 State v. Cofield, 22 S. Car. 301. 
18 Moog v. Espalla, (Ala.) 9 South. 
Rep. 596. 
14 State v. McBride, 4 McCord, 332. 
156 Ch. 8] 
THE LICENSING SYSTEM. 
§ 119 
cute offenders against the law in certain contingencies, is not a license 
to sell intoxicating liquors at times and under circumstances not men- 
tioned.16 
' § 119. Wrongful Refusal or Neglect to Grant License. 
The fact that the authorities charged with the duty of issuing liq- 
uor licenses wrongfully or arbitrarily refused to grant a license to the 
applicant, is not equivalent to a proper license, and affords him no 
justification or defense for engaging in the traffic without a license; 
he has his remedy by mandamus, and this remedy he must success- 
fully pursue before he can legally begin selling.16 And the refusal 
of the licensing authorities to grant any licenses whatever for the 
sale of liquor, within the territory of their jurisdiction, does not oper- 
ate as a general license to all persons residing in the district to pur- 
sue the traffic.17 Hence, in a criminal prosecution for selling without 
license, evidence going to show that the defendant presented a proper 
petition for a license, that he tendered the required bond and pos- 
sessed all the qualifications of a dram-shop keeper, but that the 
authorities failed to grant him a license, is not admissible.18 So, in 
a district where local option has been declared, but is void for a defect 
in the proceedings, one who tendered the amount of the tax due for 
selling liquors and demanded a license, which was refused, is pun- 
ishable for selling without a license.19 And that the district has 
voted in favor of license, upon an election under the local option law, 
is not enough to protect the seller; he must have actually obtained 
a license.20 One who sells after the expiration of his license cannot 
defend on the ground that he was induced by town officers to believe 
that his license would be renewed, and that it was customary to date 
licenses back.21 There is one decision, however, in the state of Illi- 
nois, which appears inconsistent with the general current of the 
16 Comm. v. Matthews. 129 Mass. 485. 
16 Brock v. State, 65 Ga. 437; Kad- 
gihn v. Bloomington, 58 Ill. 229; Kan- 
sas City v. Flanders, 71 Mo. 281; State 
v. Jamison, 23 Mo. 330. 
17 Mayor of New York v. Mason, 4 E. 
D. Smith, 142; Comm. v. Blackington, 
24 Pick. 352; State v. Downer, 21 Wis. 
274. 
18 State v. Huntley, 29 Mo. App. 278. 
19 Curry v. State, 28 Tex. App. 477, 13 
S. W. Rep. 773. 
20 State v. Cron, 23 Minn. 140. 
21 State v. Brady, 14 R. I. 508. 
157 § 120 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
authorities. It was there held that a person who strictly complies 
with the ordinances of a village having power to regulate arid license 
the sale of liquor, by paying the fee required for the privilege, and 
giving a bond which is accepted, will be protected in selling, although 
the clerk may have neglected to give him a license; the ordinance, in 
such cases, is the authority to sell, and the license is only evidence 
of it; no formal license is necessary.22 
§ 120. Impossibility of Obtaining License. 
It is no defense to an indictment for selling liquor without a license 
that the sale was made where licenses are not granted under any cir- 
cumstances.23 So the fact that, in a given city, there is no person 
or court empowered to grant licenses, as contemplated by law, is no 
justification to one who engages in the liquor traffic without a license, 
in violation of the statutes.24 And a plea that the municipality can- 
not take money for a license to sell in that part of the town where 
the sale in question was made, is not good.26 And the fact that no 
provision is made by the law of a state for granting licenses for the 
sale of liquor in boats upon a river which forms one of its bound- 
aries, does not give the right to sell in such boats without a license.28 
In a prosecution for violating a city ordinance by retailing liquor 
without a license, it is no defense that the license could not be 
renewed for a month after its expiration, because of the illness of 
the city clerk, and that a license was subsequently taken out, cover- 
ing the time during which the defendant had no license, and money 
paid therefor into the city treasury.27 But in a case where a new 
license law took effect in April, but the system of licenses therein 
provided did not take effect until July, it was held that pne whose 
former license expired after the former date and before the latter, 
was not liable to any penalty for selling without a license until the 
22 Prather v. People, 85 Ill. 36. 
23 State v. Tucker, 45 Ark. 55; State 
v. Brown, 41 La. Ann. 771, 6 South. Rep. 
638. 
24 State v. McNeary, 88 Mo. 143. 
26 Indianapolis v. Fairchild, 1 Ind. 122. 
26 Welsh v. State, 126 Ind. 71, 25 N. 
E. Rep. 883. 
27 Reese v. Atlanta, 63 Ga. 344. 
158 Ch. 8] 
THE LICENSING SYSTEM. 
§ 121 
latter date.28 And a similar ruling was made in the case of a dealer, 
who, having had a legal and competent license, continued to make 
sales after such license expired, but before the time of the next meet- 
ing of the commissioners of excise for the purpose of granting 
licenses.29 But where it appears, by the appropriate record, that the 
town authorities have licensed the highest number of persons which 
the law permits, and the record does not show that any additional 
number have been licensed, it is not competent for a defendant, in a 
prosecution for illegal selling, to show, by an unrecorded license, 
that he had authority to make the sales charged against him as 
offenses.30 
§ 121. Performance of Conditions not Equivalent to 
Obtaining License. 
It is generally held that the performance, by an applicant for a 
license, of the conditions which the statute imposes as prerequisite to 
the grant of the privilege, is not equivalent to an actual issuing of a 
license to him. His right is not complete until the license itself is 
in his hands. Before that, he is not justified in beginning to make 
sales. Thus, although he executed the bond, and tendered the fee, 
required for a license, this does not give him a right to sell unless 
and until he obtains a license.31 In Indiana it is held that where an 
order for the issuing of a license has been made, a failure of the 
applicant to procure such license, or of the officer to issue it, would 
28 Village of Rome v. Knox, 14 How. 
Pr. 268. 
29 Palmer v. Doney, 2 Johns. Cas. 346. 
30 State v. Shaw, 32 Me. 570. 
3i State v. Bach, 36 Minn. 234, 30 N. 
W. Rep. 764; State v. White, 23 Ark. 
275; Roberts v. State, (Fla.) 7 South. 
Rep. 861. In the case last cited it was 
said: "It is argued that the defendant 
tendered the money and demanded a 
permit to sell liquors, etc., and that the 
officer whose duty it was to grant the 
permit refused to grant it, and for this 
reason the defendant, in selling without 
a license, was not legally liable for such 
selling. But this is not correct, because 
it makes no difference whether the de- 
fendant offered to pay the money or 
not, as his authority for selling could 
only be shown by the proper license. 
If the defendant was entitled to the per- 
mit and license, he could have com- 
pelled the proper officer to grant them. 
This he did not do, but proceeded to 
sell without authority, and hence laid 
himself liable to the penalties of the 
law." And see Comm. v. Welch, 144 
Mass. 356, 11 N. E. Rep. 423; Vannoy v. 
State, 64 Ind. 447. 
159 § 122 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
not subject the party to prosecution for subsequent sales; but if he 
has not paid his money into the treasury, nor filed the required bond, 
he is liable to prosecution.32 And it appears that the order for a 
license and the execution of the bond are not enough to protect him, 
if the fee has not been paid.33 But pending an appeal from the order 
of court granting a license, the applicant may sell, if he tenders a 
proper bond and the license fee, although the county auditor unlaw- 
fully refuses to issue the license.34 
§ 122. Retroactive Effect of License. 
It is well settled, upon the authorities, that a license to sell liq- 
uor has no relation back to the date of the order of court granting 
permission to obtain it, or to the date when the statutory conditions 
were complied with; it cannot act retrospectively, so as to condone 
offenses against the statute prior to its issue; it will only protect the 
licensee in respect to sales made after it was actually issued to him.35 
And this rule has been applied in a case where the sale was made 
after a petition for license had been filed, but the license could not 
be obtained until afterwards, because the licensing commissioners had 
not been appointed.36 The principle is the same under the United 
States internal revenue laws. A receipt for a license tax is not retro- 
active, and cannot be admitted in evidence on a charge for retailing 
liquor during a period of time prior to its date.87 Nor can a license 
be antedated, so as to cover offenses already committed.88 And if a 
person charged with an offense under the statute relies upon a license 
dated before the day of the alleged offense, the prosecution may show 
that the bond required was not filed, the license fee not paid, and the 
license not issued, until after that day, and this being proved, the 
82 Houser v. State, 18 Ind. 106. 
33 Dudley v. State, 91 Ind. 312. 
34 Padgett v. State, 93 Ind. 396. 
35 State v. Hughes, 24 Mo. 147; Ed- 
wards v. State, 22 Ark. 253; Kingston v. 
Osterhoudt, 23 Hun, 66; Comm. v. 
Welch, 144 Mass. 356, 11 N. E. Rep. 423; 
Bolduc v. Randall, 107 Mass. 121; Keiser 
v. State, 78 Ind. 460. This last case 
overrules Vannoy v. State. 64 Ind. 447, 
and State v. Wilcox, 66 Ind. 557. 
36 Bolduc v. Randall, 107 Mass. 121. 
87 United States v. Angell, 11 Fed. 
Rep. 34. 
88 Wiles v. State, 33 Ind. 206. 
160 Ch. 8] 
THE LICENSING SYSTEM. 
§ 123 
license affords no justification.89 It has been remarked by Dr. Bishop 
that "where the licensing body is the representative of a municipal 
corporation, to which is to be paid the penalty for illegal selling,- 
as, where it is the city council, and the penalty consists of money pay- 
able to the city,-an antedated license is deemed to be a release also 
of penalties already incurred."40 And this statement is supported 
by authority,41 as well as by a reasonable view of the principles appli- 
cable to the case. But it appears that if a suit has already been 
commenced for the penalty, a subsequently issued license will not 
operate as a release of the penalty, although it takes effect from a 
prior day and covers the offense.42 
§ 123. Number of Licenses Required. 
Inasmuch as state laws and municipal ordinances frequently pro- 
vide for the classification of various occupations, for purposes of license 
or taxation, and require different kinds of licenses for the various 
branches of the liquor traffic, it is easily seen that a person may need 
a number of licenses to protect all the sales he may make. Thus, if 
distinct licenses are provided for manufacturers, for wholesalers, and 
for retailers, a person holding one kind only cannot lawfully engage 
in branches of the business which his license does not contemplate.43 
And so, if one pursues a business which is required by law to be 
licensed, but which is not mainly concerned with the selling of liquor, 
or to which the sale of liquor is merely incidental, his license to 
pursue the business in question will not authorize him to retail intox- 
icants, if such retailing, by itself, is made a subject for a separate 
license. For example, in Louisiana, liquor cannot be sold under a 
confectioner's license, notwithstanding it is locally the custom for 
confectioners to make such sales in their business.44 Nor, in the 
same state, can a licensed retail grocer, unless he also holds a coffee- 
39 Comm. v. Welch, 144 Mass. 356, 11 
N. E. Rep. 423. 
40 Bishop, Stat. Crimes, § 1001. 
41 Charleston v. Corleis, 2 Bail. (S. 
Car.) 186. 
42 Charleston v. Schmidt, 11 Rich. 343. 
43 See State v. Newcomb, 107 N. C. 
900, 12 S. E. Rep. 53; Schumm v. 
Gardener, 25 Ill. App. 633; State v. 
Cahen, 35 Md. 236. 
44 New Orleans v. Jane, 34 La. Ann. 
667. 
INTOX.LIQ. 11 
161 § 124 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
house license, sell intoxicating liquor by the glass, although he may 
sell it in quantities less than a gallon, but not to be consumed on the 
premises.45 
§ 124. Separate Licenses Required from Different Juris- 
dictions. 
The fact that a dealer in intoxicating liquors holds a license from 
one jurisdiction, such as the state or the county, does not exempt 
him from the duty of taking out the license required by another juris- 
diction in the same territory, such as a city or incorporated town; 
for the requirement of a license, being in the nature of a restraint 
upon the traffic, is equally (and concurrently) within the power of 
the two jurisdictions.46 And an act giving to municipal corporations 
the right to license the sale of liquor, is not unconstitutional as vio- 
lating the rights of sellers already licensed by the county officers, 
because a liquor license is at all times subject to control by the legis- 
lature.47 So also, a municipal ordinance requiring those who apply 
for a town license to first obtain a license from the county commis- 
sioners, as provided by law, is a reasonable regulation.48 And the 
fact that a city has, by a charter or statute, exclusive power to license 
liquor dealers in its limits, raises no implication, in favor of such 
dealers, of exemption from a general law of the state taxing the 
traffic.49 
Although the great mass of authority supports the rule above 
stated, and that in the most plain and emphatic terms, yet, in some 
quarters, the courts appear to entertain a more or less definite notion 
45 State v. Sies. 30 La. Ann. 918. 
46Furman v. Knapp, 19 Johns. 248; 
Comm. v. Sweitzer, 129 Pa. St. 644. 18 
Atl. Rep. 569; Parsley v. Hutchins, 2 
Jones, (N. Car.) 159; State v. Propst. 87 
N. Car. 560; State v. Mancke, 18 S. Car. 
81; Cuthbert v. Conly, 32 Ga. 211; State 
v. Estabrook. 6 Ala. 653; Lutz v. Craw- 
fordsville, 109 Ind. 466, 10 N. E. Rep. 
411; Hedderich v. State, 101 Ind. 564, 
1 N. E. Rep. 47, 51 Am. Rep. 768; Mc- 
Kinney v. Salem, 77 Ind. 213; Inde- 
pendence v. Noland, 21 Mo. 894; State 
v. Sherman, 50 Mo. 265; State v. 
Harper, 58 Mo. 530; State v. Clarke, 54 
Mo. 17, 14 Am. Rep. 471; Ex parte 
Lawrence, 69 Cal. 608, 11 Pac. Rep. 217; 
Elk Point v. Vaughn. 1 Dak. 113, 46 N. 
W. Rep. 577. 
47 McKinney v. Salem, 77 Ind. 213. 
48 Wagner v. Garrett, 118 Ind. 114, 20 
N. E. Rep. 706. 
49 Decker v. McGowan, 59 Ga. 805. 
162 Ch. 8] 
THE LICENSING SYSTEM. 
§ 125 
that a person who has paid for and taken out a state or county license 
cannot properly be made subject to an ordinance, requiring an addi- 
tional license, passed after the date of the license he holds, or passed 
in pursuance of authority thereafter conferred.60 But a just con- 
ception of the nature of the privilege granted by a license, and of the 
character and scope of the police power, will plainly disclose the fal- 
lacy of this view. It might be right in principle if a license were a 
contract; but a license is not a contract. It might be sustainable 
if a license conferred a vested right to continue the trade without fur- 
ther hindrance or imposition; but such is not the case. On the con- 
trary, a license is a mere temporary permit to do what otherwise 
would be unlawful. It is revocable at the will of the power which 
granted it. It is taken subject to the contingency that it may be 
modified, restricted, or annulled, by subsequent legislative action. 
And if the holder of it is subjected to further taxation or regulation, 
by a power having concurrent jurisdiction over the subject-matter, he 
cannot complain of an injury to any rights secured to him by the law 
or the constitution.61 
§ 125. United States License no Protection against State 
Laws. 
A license granted by the United States, under the internal revenue 
laws, to carry on the business of a liquor dealer in a particular state 
named, although it has been granted in consideration of a fee paid, 
does not give the licensee power to carry on the business in violation 
of the state laws forbidding such business to be conducted within its 
limits; nor does it relieve the holder from the necessity of taking out 
any license or licenses required by the laws of the state, if that is the 
system therein prevailing.62 Thus, the holder of a government 
50 See Chastain v. Calhoun, 29 Ga. 333; 
Mayor of Rome v. Lumpkin, 5 Ga. 447; 
Ex parte Schmitker, 6 Nebr. 108. 
61 Elk Point v. Vaughn, 1 Dak. 113, 
46 N. W. Rep. 577; McKinney v. Salem, 
77 Ind. 213. And see infra, §§ 127,128, 
189. 
62McGuire v. Comm., 3 Wall. 387; 
Pervear v. Comm., 5 Wall. 475; License 
Tax Cases, 5 Wall. 462; State v. Delano, 
54 Me. 501; Comm. v. Thorniley, 6 
Allen, 445; Comm. v. O'Donnell, 8 
Allen, 548; Comm. v. Holbrook, 10 
Allen, 200; Comm. v. Keenan, 11 Allen, 
262; Comm. v. McNamee, 113 Mass. 12; 
Comm. v. Sanborn, 116 Mass. 61; Comm. 
163 § 125 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
license, whose traffic is conducted on board a steamer plying within 
the limits of a state, is subject to the state license law.63 Any pos- 
sible uncertainty in this regard will be avoided by considering the 
real nature of the federal licenses. The requirement of a fee is only 
a mode of imposing a tax on the business, and the prohibition, 
under penalties, against carrying on the business without a license 
is only a mode of enforcing the payment of such tax.54 Hence, as we 
have already pointed out, a government license is purely and simply 
a form of taxation. The laws under which it is granted are enacted 
solely as a means of raising revenue. They have no effect upon the 
internal police of the states, with which congress has no power to 
interfere, and they cannot be understood as either legalizing or regu- 
lating the traffic in intoxicating liquors. In view of the repeated and 
uniform rulings to this effect, one cannot but be surprised by the per- 
sistence and the confidence with which government licenses are thrust 
forward in defense to prosecutions for violating the liquor laws of a 
state. But if the volume of adjudged cases were not sufficient to 
settle the question, it should be regarded as determined beyond all 
peradventure by the act of congress on the subject. It is therein 
provided that "the payment of any tax imposed by the internal rev- 
enue laws for carrying on any trade or business shall not be held to 
exempt any person from any penalty or punishment provided by the 
laws of any state for carrying on the same w'ithin such state, or in 
any manner to authorize the commencement or continuance of such 
trade or business contrary to the laws of such state or in places pro- 
hibited by municipal law; nor shall the payment of any such tax be 
held to prohibit any state from placing a duty or tax on the same 
trade or business, for state or other purposes." 55 It has been pointed 
out that this section, standing in the Revised Statutes as just quoted, 
omits the words "or territory," after the word "state," which were 
found in the original act. But another section in the same chapter 
v. Sheckles, 78 Va. 36; State v. Joyner, 
81 N Car. 534; State v. Hazell, 100 N. 
Car. 471, 6 S. E. Rep. 404; Pierson v. 
State, 39 Ark. 219; Boyd v. State, 12 
Lea, 687; Block v. Jacksonville, 36 Ill. 
301; State v. McCleary, 17 Iowa, 44; 
State v. Baughman, 20 Iowa, 497; State 
v. Funk, 27 Minn. 318, 7 N. W. Rep. 
359. 
68 Comm. v. Sheckles, 78 Va. 36. 
64 License Tax Cases, 5 Wall. 462. 
» Rev. St. U. S. § 3243. 
164 Ch. 8] 
THE LICENSING SYSTEM. 
§ 127 
expressly provides that the word "state" shall be understood as includ- 
ing the territories. Hence, it is ruled, it does not appear that con- 
gress intended, by omitting to mention the territories, to protect liq- 
uor licensees in those districts.66 
§ 126. Effect of Government License. 
In addition to the rulings that a government license is no protec- 
tion against the state laws, cited in the last section, there are cer- 
tain other decisions, which must be here noticed, upon the nature 
and effect of such licenses. Thus, it is held that a person indicted, 
under a law of the state, for illegally keeping or selling intoxicat- 
ing liquors, is not entitled to remove the cause for trial into the cir- 
cuit court of the United States, under the act of congress of 1833,67 
although he holds a license from the federal government to sell 
liquor, and has paid revenue taxes thereon; because such a case is 
not, in the language of the act, "a suit or prosecution against any 
officer of the United States or other person, for or on account of any 
act done under the revenue laws of the United States, or under color 
thereof, or for or on account of any right, authority, or title set up 
or claimed by such officer or other person under any such law of 
the United States."68 Furthermore, the payment of the special 
internal revenue tax for selling liquors in a collection district does 
not authorize the licensee to introduce liquors into the Indian coun- 
try, in violation of federal law, although such Indian country ia 
within the collection district.69 
§ 127. Licenses are not Contracts. 
The grant of a license to sell intoxicating liquors, made by a state 
or municipal corporation under the terms of a law or ordinance, is 
no more than a permit to the licensee to engage in such traffic and 
6C Territory v. O'Connor, 5 Dak. 397, 
41 N. W. Rep. 746. 
67 Rev. St. U. S. § 643. 
68 Comm. v. Casey, 12 Allen, 214; 
State v. Elder, 54 Me. 381,. 
59 United States v. Forty-Three Gal- 
lons of Whisky, 108 U. S. 491, 2 Sup. CL 
Rep. 906. 
165 § 127 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
continue in the same so long as it is not forbidden by the authori- 
ties. Neither the state nor any of its agencies can surrender, or 
ever does surrender, the power to regulate and control the traffic 
in liquors, because that is a branch of its police power and is inalien- 
able. Hence it follows that such a license cannot be considered 
a contract between the state or municipality and the individual. 
And any laws enacted by lawful authority, modifying its terms, 
imposing additional burdens or restrictions upon the holder, or even 
revoking the privilege, are not open to the constitutional objection 
of impairing the obligation of a contract. These principles are fully 
settled upon the authorities.60 In the leading case upon the subject 
it is said: "These licenses to sell liquor are not contracts between 
the state and the persons licensed, giving the latter vested rights 
protected on general principles and by the United States constitu- 
tion against subsequent legislation, nor are they property in any 
legal or constitutional sense. They have neither the qualities of a 
contract or of property, but are merely temporary permits to do 
what otherwise would be an offense against a general law. They 
form a portion of the internal police system of the state, are issued 
in the exercise of its police powers, and are subject to the direction 
of the state government, which may modify, revoke, or continue 
them, as it may deem fit. If the act of 1857 had declared that 
licenses under it should be irrevocable, (which it did not, but by its 
very terms they are revocable,) the legislature of subsequent years 
would not have been bound by the declaration. The necessary 
powers of the legislature over all subjects of internal police, being a 
part of the general grant of legislative power given by the con- 
60 Beer Co. v. Massachusetts, 97 U. S. 
25; La Croix v. Fairfield Co., 49 Conn. 
591; Comm. v. Brennan, 103 Mass. 70; 
Calder v. Kurby, 5 Gray, 597; Metro- 
politan Board of Excise v. Barrie, 34 N. 
Y. 659; Brown v. State, 82 Ga. 224, 7 S. 
E. Rep. 915; Powell v. State, 69 Ala. 10; 
Fell v. State, 42 Md. 71, 20 Am. Rep. 83; 
Wheeler v. State, 64 Miss. 462, 1 South. 
Rep. 632; Hearn v. Brogan, 64 Miss. 
834, 1 South. Rep. 246; Rowland v. 
State, 12 Tex. App. 418; Prohibitory 
Amendment Cases, 24 Kans. 700, 724; 
McKinney v. Salem, 77 Ind. 213; Moore 
v. Indianapolis, 120 Ind. 483, 22 N. E. 
Rep. 424; Columbus City v. Cutcomp, 
61 Iowa, 672,17 N. W. Rep. 47; State v. 
Clarke, 54 Mo. 17, 14 Am. Rep. 471; 
Huffsmith v. People, 8 Colo. 175, 6 Pac. 
Rep. 157, 54 Am. Rep. 550; State v. 
Horton, (Oreg.) 27 Pac. Rep. 165; Elk 
Point v. Vaughn, 1 Dak. 113, 46 N. W. 
Rep. 577; Cooley, Const. Lim. 343, 474; 
Black, Const. Prohib. § 65. 
166 Ch. 8] 
THE LICENSING SYSTEM. 
§ 127 
stitution, cannot be sold, given away, or relinquished."61 This prin- 
ciple is productive of important consequences in the frequent changes 
of state policy with respect to liquor legislation. But it has always 
been applied by the courts without hesitation, whatever might be the 
apparent hardship of its operation. Thus, if a state adopts the sys- 
tem of total prohibition, either by constitutional amendment or by 
act of the legislature, it is without doubt a legitimate exertion of its 
police power; and although the law, by its terms, takes effect upon 
persons holding unexpired licenses at the time of its passage, and 
thus deprives them of a privilege previously granted upon consider- 
ation paid, it is not, in such application, invalid. It operates as a 
revocation of such licenses. But as a license is neither a contract 
nor property, the holders cannot complain that the obligation of con- 
tracts is impaired or that they are unduly deprived of their prop- 
erty.62 The same rule applies upon the adoption of a local option 
law. It has the effect to revoke and annul all existing and unex- 
pired liquor licenses in the localities where it takes effect. And it is 
not unconstitutional in its effect upon such permits.63 Furthermore, 
it follows from this conception of a license that it does not imply any 
exemption from the addition of new or more stringent regulations to 
those already incumbent upon the licensee. If the authorities see fit 
to burden the traffic with greater duties or responsibilities, they are 
not obliged to make an exception in favor of the holders of existing 
licenses. For such privileges remain at all times subject to public 
control, as the exigencies or the interests of the community may 
require. If one holds a liquor license from the state or county, that 
does not prevent a municipal corporation, within whose limits his 
business is conducted, from requiring him to pay a fee and take out 
a license from its own authorities.64 And it has been held that where 
one had procured a license to sell liquors in a city for a year, on pay- 
ment of the designated sum, the city, before the end of the year, 
61 Metropolitan Board of Excise v. 
Barrie, 34 N. Y. 659. 
«2 Fell v. State, 42 Md. 71, 20 Am. 
Rep. 83; Brown v. State, 82 Ga. 224, 7 
S. E. Rep. 915; Prohibitory Amend- 
ment Cases, 24 Kans. 700,724; Calder v. 
Kurby? 5 Gray, 597. And see, supra, §§ 
84, 90. 
63 Supra, § 101. 
64 Elk Point v. Vaughn, 1 Dak. 113, 
46 N. W. Rep. 577; supra, § 124. 
167 § 128 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
might by ordinance raise the fee for the unexpired term.88 This was 
surely a strong case. And yet we cannot doubt the correctness of 
the decision. Finally, if the propositions already advanced are 
accepted as correct, it must necessarily follow that the authorities 
which granted a license have the power to revoke or cancel it, at any 
time when, in their judgment, the public good requires such action. 
That the authorities so hold will more fully appear in a later sec- 
tion.68 
§ 128. License Gives no Vested Rights. 
The fact that a person has been licensed to sell intoxicating liq- 
uors does not give him a vested right in the continuance of his traf- 
fic in such liquors, in any such sense that it cannot lawfully be 
abridged or abrogated by subsequent legislation enacted in the exer- 
cise of the police power, and for the benefit of the interests of soci- 
ety.67 "The license being a mere privilege to carry on a business 
subject to the will of the grantor, it is not property, in the sense 
which protects it under the constitution. The revocation of the license 
does not deprive the citizen of his liberty or his property without due 
process of law."68 So it is held that payment of a liquor tax for 
the coming year does not exempt the dealer from the operation of a 
subsequent law, passed during the year, forbidding the sale of liquor 
on specified days.69 There are, however, a few decisions which 
appear to favor the view that a liquor license is a right of property, 
at least in so far as that the privilege which it confers cannot be 
abrogated at any time without sufficient cause,70 and that it cannot 
be cancelled by the mere adoption of a local option law within the 
district.71 But this is not in accordance with the weight of authority. 
66Moore v. Indianapolis, 120 Ind. 483, 
22 N. E. Rep. 424. 
66 Infra, § 189. 
67 Schwuchow v. Chicago, 68 Ill. 444; 
Trost v. State, 64 Miss. 188, 1 South. 
Rep. 49; Fell v. State, 42 Md. 71, 20 Am. 
Rep. 83; Metropolitan Board of Excise 
v. Barrie, 34 N. Y. 659. 
68 Sprayberry v. Atlanta, (Ga.) 13 S. E. 
Rep. 197. 
69 Reithmiller v. People, 44 Mich. 280, 
6 N. W. Rep. 667. 
70 State v. Baker, 32 Mo. App. 98. 
71 Watts v. Comm., 78 Ky. 329. 
168 Ch. 8] 
THE LICENSING SYSTEM. 
§ 130 
§ 129. Effect of Repeal of Law on Unexpired License. 
From the foregoing sections it will have become apparent that, 
according to the generally accepted doctrine, the repeal of a law which 
authorized the granting of licenses (as by the adoption of prohibi- 
tion or local option) will have the effect of revoking all existing and 
unexpired licenses.72 The few cases which refuse to accede to this 
view have not been generally approved, nor much considered in the 
determination of the same question elsewhere. In New Hampshire, 
it was at one time held that where one lawfully procures a license to 
sell liquor for a year, and before the expiration of the year the 
licensing law is repealed, the license will still remain good for the 
period for which it was granted, and sales made under it to the end 
of that period will be legal.73 But this ruling is inconsistent with 
the later decisions of the same court.74 In Missouri, it is thought 
that the repeal of a licensing law does not affect the validity of an 
unexpired term of a license granted under it, but takes away the 
power to punish the licensee, selling in virtue of it, for a violation of 
the repealed law.75 In Georgia, the local option act contained an 
express saving of vested rights. And it was held that this embraced 
previously acquired rights to sell by virtue of a license already taken 
out and paid for, but comprehended no right either to obtain a new 
license, or to sell without a license, whether on the part of natural 
persons or corporations.76 
§ 130. License is not Assignable. 
A license to sell liquor, although it confers a privilege, also imposes 
a species of public trust. It is of the very essence of all license laws 
that a principle of selection be applied to the persons who petition 
for the privilege, and that it be accorded only to those who possess 
the moral and other qualifications which tend to secure the public 
72 See Pleuler v. State, 11 Nebr. 547, 10 
N. W. Rep. 481. 
73 Adams v. Hackett, 27 N. H. 289, 59 
Am. Dec. 376. 
74 State v. Holmes, 38 N. H. 225. 
76 State v. Andrews, 28 Mo. 14. 
76 Menken v. Atlanta, 78 Ga. 668, 3 S. 
E. Rep. 414; Griffin v. Atlanta, 78 Ga. 
679, 4 S. E. Rep. 154. 
169 § 130 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
against abuses of the right granted. These qualifications are condi- 
tions upon the issuing of licenses. It is important to the public not 
only that the number of liquor dealers be limited, but that the per- 
mission to sell be restricted to reputable and presumably trustworthy 
persons. Hence, both because public policy forbids it, and because 
a license is not in the nature of property, it follows that a license 
cannot lawfully be assigned or transferred.77 Any attempted assign- 
ment of it would convey no rights whatever to the assignee, nor would 
it afford him the least protection against a prosecution for illegal 
selling. For example, a contract by which a licensed vendor leases 
to another person his tavern or his bar, and sells to the latter the 
privilege of retailing liquor under his license, is entirely without legal 
efficacy.78 The strictness with which this rule is applied is illustrated 
by a case in Nebraska, where it appeared that one who held a liquor 
license, issued under the authority of the mayor and council of a 
town, sold out his saloon and assigned his license to defendant, who 
then petitioned the mayor and council to transfer the same to him. 
The council thereupon ordered the license to be transferred, and the 
town clerk issued a license, original in form, to defendant, who pro- 
ceeded to retail liquor under it, and was indicted therefor. On this 
state of facts, it was held that the transfer was no defense to the indict- 
ment.79 On the same principle, a promissory note, a part of the con- 
sideration for which is the transfer of a liquor license, is to that extent 
without valid consideration.80 And because a retailer's license is per- 
sonal to the holder, it follows that it cannot be committed to the care 
of a receiver appointed by the court; the attempt to place a liquor- 
dealer's business in the hands of a receiver would result, for this 
reason, in its entire destruction.81 
77 In re Blumenthal, 125 Pa. St. 412,18 
Atl. Rep. 395; State v. County Comm'rs, 
22 Fla. 1; Heath v. State, 105 Ind. 342, 
4 N. E. Rep. 901; Godfrey v. State, 5 
Blackf. 151; Lewis v. United States, 1 
Morris, 199; Alger v. Weston, 14 Johns. 
231; Semple v. Flynn, (N. J. Ch.) 10 Atl. 
Rep. 177; State v. McNeeley, 1 Winst. 
Eq. 234; Comm. v. Bryan, 9 Dana, 310; 
State v. Lydick, 11 Nebr. 366, 9 N. W. 
Rep. 560; In re Templeton, 4 Lancast. 
Law Rev. 242. 
78 Comm. v. Bryan, 9 Dana, 310; San- 
derson v. Goodrich, 46 Barb. 616. 
79 State v. Lydick, 11 Nebr. 366, 9 N. 
W. Rep. 560. 
80Strahn v. Hamilton, 38 Ind. 57. 
81 Semple v. Flynn, (N. J. Ch.) lOAtl. 
Rep. 177. 
170 Ch. 8] 
THE LICENSING SYSTEM. 
§ 132 
§ 131. License does not Pass to Administrator. 
The authorities hold that a license to sell intoxicating liquors, being 
personal to the holder and not in the nature of property, does not 
pass to his personal representatives at his death, nor authorize them 
to make sales.82 And since the license was not such a right as the 
decedent himself could have transferred to any person, and as the 
executor or administrator is not the person who was selected by 
the licensing authorities as a suitable person to receive the grant of the 
privilege, these decisions are clearly right. But we understand the 
rule to mean no more than that the representative is not authorized, 
by his decedent's license, to continue the business, buying and sell- 
ing, for the benefit of the estate, nor even to dispose by retail of the 
stock remaining on hand. But if he undertakes to transfer the whole 
stock in bulk, or in large quantities, to one or more purchasers, that 
is not the kind of sale contemplated by the license laws, and in that 
case, it would appear, he should not be required to take out a license 
in his own name.83 
§ 132. License Protects Servant or Agent. 
While it is the rule, as already stated, that a license to sell intoxi- 
cating liquors is not transferable, yet there is nothing to prevent the 
licensee from employing others to conduct his business, so long as it 
remains under his own supervision and control. A licensed vendor 
may carry on the business, at the place designated, by a servant or 
agent, and the latter will be fully protected by his master's license.84 
A license having been granted to one man to keep a tavern in a par- 
ticular house, and he having removed from it, another man, being 
indicted for retailing liquor in the same house, may prove in defense 
that he did it as the agent or partner of the licensee and under the 
latter's license.86 In Kansas, it is held that a liquor-dealer, having 
82United States v. Overton, 2 Cranch, 
C. C. 42; In re Blumenthal, 125 Pa. St. 
412, 18 Atl. Rep. 395. 
83 See Williams v. Troop, 17 Wis. 463. 
84 Runyon v. State, 52 Ind. 320; Peo- 
pie v. Buffum, 27 Hun, 216; Duncan v 
Comm., 2 B. Mon. 281, 38 Am. Dec. 
152. 
^Barnes v. Comm., 2 Dana, 388. 
171 § 133 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
a license from the city or county in which his store is kept, may send 
out agents and take orders in any part of the state for goods to be 
selected and forwarded from the stock kept in such store, and that 
he is not required to obtain a license from the authorities of each city 
or county in which contracts are made therefor by such agents.80 
But in Michigan, where the law forbids the licensee to carry on the 
business in any other place than that specified in the bond, it is held 
that one who, without paying the tax, carries on the business in one 
place, as the agent of a person who has paid for and is carrying it 
on in another, is properly convicted of a violation of the law.87 And 
indeed the license laws, as a rule, do not authorize the maintenance 
of more than one establishment, in the same locality or elsewhere, 
under cover of the same license. Furthermore, where it is apparent 
that a pretended appointment of a person as a liquor-seller's agent 
was in reality intended as a sale or transfer of the privilege granted 
by the license, it will be ineffectual, and the license will afford the 
pretended agent no protection against the criminal law.88 Thus, 
where A. obtained a license to keep a tavern, and B. agreed to pay 
for the license, and sold liquors in an adjoining room, which he 
rented from a third person, not being at all under the control of A., 
it was held that B. was not protected by A.'s license, but was liable 
for keeping a tippling-house.89 
§ 133. Removal of Principal from State. 
It is held that the removal of a licensed retailer of liquors to another 
county does not abrogate his license, nor expose his clerk or agent to 
an indictment for continuing his business, after such removal, on the 
same premises.90 But it appears that a licensee who voluntarily 
removes from the state, thereby abandons and forfeits his rights 
under the license, and cannot thereafter continue the business by 
means of an agent. The permit is forfeited by the holder because 
he has ceased to possess the required qualification of residence. And 
86Haug v. Gillett, 14 Kans. 140. 
87 People v. Lester, 80 Mich. 643, 45 
N. W. Rep. 492. 
88 Heath v. State, 105 Ind. 842, 4 N. E. 
Rep. 901. Compare Keiser v. State, 58 
Ind. 379. 
89Comm. v. Branamon, 8 B. Mon. 374. 
"Thompson v. State, 37 Ala. 151. 
172 Ch. 8] 
THE LICENSING SYSTEM. 
§ 134 
having been abandoned and forfeited by the principal, to whom it 
was granted, it is no protection to one who claims to act as his agent 
in selling liquor.91 There are, however, certain cases in which it has 
been held that the absence of the principal from the state, in the 
military service of the country, though for an indefinite time, did 
not work such a forfeiture of his rights under his license that he 
could not lawfully appoint an agent to carry on his business during 
his absence; and that, in such circumstances, it would not be neces- 
sary for the agent to take out a license in his own name.92 
§ 134. Rights of Partners under License. 
Although it is in general permissible to grant a license to two 
persons jointly, yet a license granted to one person, who forms a 
partnership with an unlicensed person, does not authorize the latter 
to make sales.93 And where the firm already exists, a license to one 
partner individually will confer no authority on his copartner or the 
firm. "A license to retail affords protection only for those acts which, 
in law, are merely the acts of the person to whom it was granted. If 
it is granted to an individual, it affords protection only for those acts 
which, in law, are merely his acts as an individual. If it is granted 
to a partnership, it affords protection only for those acts which, in 
law, are the acts of the firm. A license to an individual cannot be a 
license to a partnership."94 And on the same principle, a license 
issued to a firm, of which a given person is a member, confers no 
authority to sell on another firm of which also the same person is a 
member.95 But where a license is issued to a firm, and before its 
expiration, one partner acquires the interests of the other partners in 
the firm's business and property, he may continue to sell under the 
firm's license.96 And so also, a license granted to two persons as part- 
91Krant v. State, 47 Ind. 519. 
92 Pickens v. State, 20 Ind. 116; State 
v. McNeeley, 1 Winst. Eq. 234. 
93Shaw v. State, 56 Ind. 188; Comm, 
v. Hall, 8 Gratt. 588. But in an action 
brought to recover back the price paid 
for liquor sold in violation of law, it 
will be presumed that the sale was made 
by the partner who had a right to sell; 
if the fact was otherwise, it must be 
proved. Webber v. Williams, 36 Me. 
512. 
84 Long v. State, 27 Ala. 32. 
95 Wharton v. King, 69 Ala. 365. 
96 United States v. Davis, 37 Fed. Rep. 
173 § 136 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
ners will justify one of them in making sales, although the other has 
retired from the firm. Upon this point the court in North Carolina 
very justly remarks that the continuance of the business by the 
remaining partner "will not authorize an improper person to retail, 
because the moral qualifications of the retailer have already been 
examined into and passed upon by the county court. In this respect 
it differs essentially from the case of an assignee, or of the personal 
representative of a licensed person, claiming the right to sell under 
the license. Such claim would be rejected, for the obvious reason 
that the claimant would not have the sanction of the county court. 
But that reason would not apply to the case of a surviving partner, 
and does not apply to the case of the present defendant, who is a 
remaining partner."97 
§135. Statutory Authority for Transfer of License. 
In some of the states, it is provided by statute that if one licensed 
to sell liquor shall cease selling, his license may be transferred to 
another person by the authority granting the same. In such case, 
and where it is further provided that the court charged with the duty 
of issuing licenses shall have a discretionary power as to their grant 
or refusal, it is held that an application for such a transfer is 
addressed to the court's discretion, and that one who has had a hear- 
ing in such court is not entitled to mandamus to compel the granting 
of the transfer.98 It is also held that any person who may feel that 
he would be aggrieved by the granting of such application is entitled 
to have himself made a party and to contest the same.99 
§ 136. Sales under Expired License. 
If a person holding a license to retail liquors sells or offers to sell 
after his license expires, and without procuring its renewal, it is a 
violation of law for which he is liable. And it is no defense to say 
468; United States v. Glab, 1 McCrary, 
166. 
97 State v. Gerhardt, 3 Jones, (N. Car.) 
178. 
ssInre Blumenthal, 125 Pa. St. 412, 
18 Atl. Rep. 395. 
"Lester v. Price, 83 Va. 648, 3 S. E. 
Rep. 529. 
174 Ch. 8] 
THE LICENSING SYSTEM. 
§ 138 
that he sold only such liquor as remained in stock at the time and 
added nothing to his store. When the period stated in a license 
issued to exercise a business for a specific time expires, the license 
expires, no matter what stock he may still have on hand, and all 
further sales are unlawful.100 
§ 137. Invalid License no Protection. 
If a liquor license was improvidently or unlawfully issued,-as, 
where it was granted without the written recommendation which the 
statute makes a jurisdictional requisite,-the person obtaining such 
license is not thereby protected from indictment.101 But it is ruled 
that a license which appears on its face to have been regularly and 
duly issued cannot be impeached collaterally, as having been improp- 
erly granted. So long as it remains unreversed, and not appealed 
from, it must be regarded as a valid license.102 According to the 
practice in Illinois, an information in the nature of a quo warranto 
lies to determine the right of a person to keep a dram-shop under a 
license alleged to be invalid.103 
Part III. What Persons are Required to be Licensed. 
§ 138. Persons Eligible to be Licensed. 
It may be stated as a general rule that all persons who possess 
the statutory qualifications, and who bring themselves within the 
terms of the law, are entitled to obtain liquor licenses. In some of 
the states, it has been thought proper to restrict this privilege to 
citizens, or to persons who have resided within the state for a cer- 
tain number of years. Such discrimination against non-residents 
is a justifiable and proper measure of self-protection, under the 
police power of the state, and cannot be characterized as an uncon- 
stitutional abridgment of the rights of citizens of the United States.104 
100 United States v. Angell, 11 Fed. 
Rep. 34. 
101 State v. Moore, 1 Jones, (N. Car.) 
276. 
102 Comm. v. Graves, 18 B. Mon. 33. 
103 Handy v. People, 29 Ill. App. 99. 
104 Supra, § 48. 
175 § 139 
[Ch. 8 
LAWr OF INTOXICATING LIQUORS. 
As to residence in the district where the business is to be carried on, 
the laws of the various states are not uniform. Each case must be 
governed by the particular statute applicable. For the most part, 
the laws do not favor the granting of licenses to persons not resi- 
dent in the county, or town, or ward, where the dram-shop is to be 
kept. But where, as in Indiana, it is provided that "any male inhab- 
itant," having certain other qualifications, may obtain a license, it 
is held that any male inhabitant of the state is intended, without 
regard to his residence in the county or town in which he may 
desire to obtain a license.106 In some states, licenses may be granted 
only to persons who are keepers of hotels or inns, provided with 
a certain number of rooms for the accommodation of travelers. But 
in New Jersey, it is said that the applicant for a license is not 
required to be an inhabitant of the house in which be contemplates 
keeping an inn.106 In New York, there is a statute making it unlaw- 
ful for "police officials" to be interested in the manufacture and sale 
of spirituous liquors. But it is held that the mayor of a city, though 
ex officio head of its police, does not come within that designation ;107 
nor does an aiderman, although, as a member of the common coun- 
cil, he shares in the power of that body to appoint and remove 
policemen.108 
§ 139. What Persons must Take out License. 
The rule is, that all persons who engage in the business of selling 
intoxicating liquors, or who make such selling a part of their busi- 
ness, or who follow a business which customarily includes such sell- 
ing, must procure a license from the proper authorities. Thus, a 
druggist, if he sells liquor, must procure a license, unless his avoca- 
tion is specially excepted by the statute.109 So a grocer who sells 
liquor is subject to the license law as well as a saloon-keeper.110 
105 Ex parte Laboyteaux, 65 Ind. 545. 
State v. Hill, 52 N. J. Law, 326, 19 
Atl. Rep. 789. 
107 People v. Gregg, (Sup.) 13 N. Y. 
Supp. 114, 35 N. Y. St. Rep. 757. 
108People v. Hannon, (Sup.) 13 N. Y. 
Supp. 117, 35 N. Y. St. Rep. 117. 
109 Brown v. State. 9 Nebr. 189, 2 N. 
W. Rep. 214. 
110 State v. Brackett. 41 Minn. 33, 42 
N. W. Rep. 548. But in Kentucky, one 
176 Ch. 8] 
§ 139 
THE LICENSING SYSTEM. 
And so is a confectioner.111 Again, the conductor of a Pullman rail- 
road car who, without a license, sells drinks to passengers at a 
bar in the car, is liable to indictment. In making this ruling, the 
court in Texas remarked: "Whenever one of these palace cars crosses 
the line into this state, it is within the jurisdiction of the laws of the 
state, and all persons who are transported by it are subject to those 
laws, and as much bound to obey them as any citizen of the state."112 
Yet, as the object of the license laws is to suppress intemperance as 
far as possible, and diminish the evils of tippling, there are obviously 
cases, where liquor is sold, which do not come within the spirit or 
the letter of the statute, and where other considerations of public 
interest forbid the application of such statute. For example, if an 
officer levies upon a quantity of liquor and sells it under an attach- 
ment or execution, he is not required to take out a license for such 
sale.113 So it is held that, by an assignment in insolvency, the 
debtor's liquor passes like other property not exempt from attach- 
ment, and the assignee can lawfully sell the same and maintain an 
action to recover the price.114 A license, as we have previously stated, 
is not assignable and does not pass to the personal representatives 
of the holder at his death. For this reason, an administrator would 
not be authorized to carry on the business of his decedent under the 
latter's license. The administrator is not the person who was selected 
as suitable to be intrusted with the privilege; his qualifications have 
never been judicially ascertained. And even if he merely disposed 
of the stock of liquors remaining in hand, if he did so at retail and 
in the way of carrying on the business, the same reasoning and prin- 
ciples would apply. But if the administrator, in the process of reduc- 
ing the assets to cash, sold the stock of liquor at public sale, or sold 
it privately to one or more purchasers, in large quantities, either for 
money or in composition of debts of the estate, then the sale would 
not a merchant may, without a license, 
sell whisky in small quantities not to 
be drunk on the premises. Comm. v. 
Wheeler, 79 Ky. 284. 
111 New Orleans v. Jane, 34 La. Ann. 
667. 
112 La Norris v. State. 13 Tex. App. 33, 
44 Am. Rep. 699. 
113 Wildermuth v. Cole, 77 Mich. 483, 
43 N. W. Rep. 889; State v. Johnson, 33 
N. H. 441. But compare Nichols v. 
Valentine, 36 Me. 322. 
114 Gignoux v. Bilbruck, 63 N. H. 22. 
INTOX.LIQ.-12 
177 § 140 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
not be such as is contemplated by the license law, and we see no rea- 
son why such law should apply.116 It is the traffic in liquor which 
requires a license, not merely the transfer of property in it. Thus 
the case supposed would be analogous to the cases of sales by sheriffs 
and by assignees in insolvency, above cited, and should be governed 
by the same principles. 
§ 140. Wholesalers. 
The statutes generally make a distinction between licenses to sell at 
wholesale and licenses to sell at retail, in respect to the qualifications 
of the applicant, the amount of the fee required, and other particu- 
lars. But if the law is so framed as to prohibit the sale of liquor in 
any quantity without a license, wholesale dealers are subject to it 
equally with retailers, and no one can excuse himself for the want of 
a license merely by showing that he sold only in large quantities.116 
In Minnesota, it has been held that the laws regulating the sale of 
intoxicating liquors do not apply to exclusively wholesale dealers, 
who sell to other dealers, so as to oblige them to take out licenses.117 
But later rulings in the same state are to the effect that the necessity 
of obtaining a license depends solely upon whether the sale is of a 
quantity less than five gallons, and not at all on the character of the 
seller's business.118 In Michigan, where payment of the manufact- 
urer's tax exempts the person from paying the wholesale tax, and 
where the amount of tax for "selling at wholesale," "selling at 
retail," or "selling at wholesale and retail" is the same, it is held 
that one who has paid the manufacturer's tax, but no retail tax, is 
not authorized to sell at retail the liquor which he himself manu- 
factures.119 
116 See Williams v. Troop, 17 Wis. 
463. And see supra, § 131. 
116 State v. Turner, 18 S. Car. 103; 
State v. Cummings, 17 Nebr. 311, 22 N. 
W. Rep. 545. See, also, State v. Benz, 
41 Minn. 30, 42 N. W. Rep. 547; State v. 
Brackett, 41 Minn. 33, 42 N. W. Rep. 
548; Hunter v. State, 79 Ga. 365, 5 S. E. 
Rep. 134. 
117 State v. Orth, 38 Minn. 150, 36 N. 
W. Rep. 103. 
118 State v. Schroeder, 43 Minn. 231, 
45 N. W. Rep. 149; s. c. 45 Minn. 44, 47 
N. W. Rep. 308. 
119People v. Greiser, 67 Mich. 490, 35 
N. W. Rep. 87. 
178 Ch. 8] 
THE LICENSING SYSTEM. 
§ 142 
§ 141. Manufacturers. 
As a general rule, under the laws obtaining in most of the states, 
a manufacturer of intoxicating liquors cannot engage in the retail 
trade, even though he sells only the products of his own still or brew- 
ery, without taking out a license as a retailer.120 And a brewer who 
establishes an agency for the sale of beer of his own manufacture in a 
town some miles from his duly licensed place of business, and there 
sells to such persons as may desire to purchase, without obtaining a 
license for carrying on the business from the authorities of such 
town, is guilty of an offense.121 But a brewer of beer is not one 
"engaged in distilling and rectifying alcoholic or malt liquors," within 
the meaning of a statute imposing on such persons a special tax.122 
But, under the laws of Tennessee, it is held that one who sells wine 
made from grapes raised on his own farm, in quantities less than a 
quart, is a retail dealer.123 And a similar ruling has been made in 
Virginia;124 although a contrary rule obtains in some other states.126 
§ 142. Social Clubs. 
Whether or not a social club, such as are now very common in all 
the larger cities, may lawfully furnish liquor to its members, as a 
part of the entertainment which it provides for them, without pro- 
curing a license or paying a tax as a retailer, is a question which has 
provoked great discussion of late years, and upon which the authori- 
ties are by no means harmonious. The matter is of sufficient inter- 
est and importance to require a detailed examination of the adjudged 
cases, and a full consideration of the principles of law which are 
applicable to it. One of the leading decisions on this topic was made 
in the English case of Graff n. Evans.128 It there appeared that the 
i20 Keller v. State, 11 Md. 525, 69 Am. 
Dec. 226; State v. Schroeder, 43 Minn. 
231, 45 N. W. Rep. 149. See State v. 
Stiefel, (Md.) 22 Atl. Rep. 1. 
121Pietz v. State, 68 Wis. 538, 32 N. 
W. Rep. 763. 
122 State v. Weckerling, 38 La. Ann. 36. 
123 Kurth v. State, 87 Tenn. 134, 5 S. 
W. Rep. 593. 
124 Clemmens v. Comm., 6 Rand. 681 
125 State v. Jaeger, 63 Mo. 403. 
126 L. R. 8 Q. B. Div. 373. 
179 § 142 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
appellant was the manager of an institution carried on in good faith 
as a club, under rules by which members paid an entrance fee and 
subscriptions; trustees were appointed in whom all the club property 
was vested, and there was a committee of management, for whom 
the appellant acted, to conduct the general business. The club was 
not licensed for the sale of intoxicating liquors, but these were sup- 
plied to members at fixed prices, including a certain advance upon 
the cost, the money produced thereby going to the general funds of 
the club. The appellant, in the course of his employment as man- 
ager, supplied intoxicating liquors to a member, (who paid forthem,) 
and was indicted therefor. It was held that he did not "sell liquor 
by retail," within the meaning of the licensing act, and was not liable 
to conviction. And the same rule is held, on substantially similar 
facts, in the state of Massachusetts.127 
In Maryland, we find the well considered case of Seim v. State,129 
in which it was held that the officers of a social club, whose steward 
furnishes the members with food, and with beer by the glass, at a 
fixed price, to be consumed at the club, the money so received being 
used for the expenses of the club, are not guilty of "selling" beer on 
Sunday, within the meaning of the law. From the opinion in this 
case, by Bartol, C. J., we quote as follows: "The society is not an 
ordinary corporation, but a voluntary association or club united for 
social purposes; each member must be elected, and each is joint 
owner of the property and assets, and entitled to the privileges of the 
society so long as he remains a member. Among these privileges is 
that of partaking of the provisions and refreshments provided for the 
use of the members. These are not sold to him by the corporation, 
but furnished to him by the steward, upon his paying into the 
common fund what is equivalent to the cost of the article furnished, 
and what is so paid is expended in keeping up the supply for the use 
of the members. Such a transaction is not a barter or sale in the 
way of trade, and therefore not within the meaning or purview of the 
act." 
127 Comm. v. Pomphret, 137 Mass. 564, 
50 Am. Rep. 340; Comm. v. Ewig, 145 
Mass. 119. 13 N. E. Rep. 365; Comm. v. 
Gear}', 146 Mass. 139, 15 N. E. Rep. 363. 
128 55 Md. 566, 39 Am. Rep. 419. 
180 Ch. 8] 
THE LICENSING SYSTEM. 
§ 142 
In Tennessee also, a club similarly organized and maintained is 
held not subject to taxation as a retail liquor dealer. In the lan- 
guage of the court, "It cannot be controverted that the complainant 
would have a right to purchase and keep liquor at its club-rooms for 
the use of its members, and to distribute it among them in any 
method it might deem proper, and to raise funds for the purpose of 
replenishing by assessments upon the members; and the mode 
adopted, of the form of a sale to its members alone of such a quantity 
for so much money, can be nothing more than a mode adopted of assess- 
ing each member in proportion to the amount he consumes, and cannot 
be distinguished in principle from that adopted in one of the cases 
referred to, of issuing checks to each member, which entitle him to 
so much liquor each, according to the amount of money he contrib- 
utes."129 
In another case, it has been justly observed that "the property of 
the club becomes the joint property of its members, and the furnish- 
ing of liquors or wines to the members by the steward is not a viola- 
tion of the statute; and we do not understand that the entertaining 
of a guest or friend by a member, with wines or liquors, at the club- 
house, would be any more a violation of the statute than it would if 
such entertainment was given at his private residence."130 
And the same doctrine has been adopted by the courts in some of 
the other states.131 
129 Tennessee Club v. Dwyer, 11 Lea, 
453, 47 Am. Rep. 298. 
130 People v. Andrews, 50 Hun, 591, 3 
N. Y. Supp. 508. This decision was 
overruled in 115 N. Y. 427, 22 N. E. 
Rep. 358, but the reasoning above 
quoted is, to the mind of the present 
writer, more satisfactory than that of 
the appellate court. 
131 Piedmont Club v. Comm., (Va.) 12 
S. E. Rep. 963. In this case it was said: 
"The question to be determined is 
whether, upon the facts above stated, 
the defendant club was guilty of selling 
liquor, within the meaning of the stat- 
ute. The question is of first impression 
in this state, but we entertain no doubt 
that the case is with the defendant; 
that is to say, that there has been no 
sale, within the meaning of the statute. 
Every statute is to be construed, if pos- 
sible, according to the intention of the 
legislature, and criminal statutes are to 
be construed strictly. Harris' Case, 81 
Va. 240. In the present case it is con- 
ceded that the defendant club is a bona 
fide club, organized for the purposes 
mentioned in its charter, and not as a 
mere device resorted to as a means of 
evading the law. None but members 
or invited guests are entitled to the 
privileges of the club, and no person 
not a member of the club is permitted 
to pay for either food or drink or other 
181 § 142 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
On the other side of the question there is arrayed a very respect- 
able body of authorities, although, as we shall seek to show, several 
of the decisions which are usually cited as sustaining the rule that 
all clubs dispensing liquors must be licensed, are not applicable to 
societies organized in good faith and without intent to evade the law. 
In North Carolina, a decision has been reached which is squarely 
opposed to the authorities above cited. In a case where it appeared 
that a number of persons had organized a club for social and literary 
purposes, and that incidentally the members, but no other persons, 
were permitted to purchase from the defendant (its steward) meals, 
cigars, and liquors, which were furnished by the club at a price fixed 
by its officers, sufficient to cover the cost, but not for the purpose of 
profit, it was held that the furnishing of liquors to members of the 
club, under these circumstances, was a sale, in violation of the local 
option law.182 And similar rulings have been made in New York, 
New Jersey, Alabama, and Michigan.133 
refreshments dispensed by the club. 
The moneys received for all liquors so 
dispensed go into the general fund, 
which are again used for replenishing 
the stock. No profit is made on the 
liquor. In fact, the receipts from that 
source are not sufficient to reimburse 
the club for the cost of the liquors and 
of serving them. The liquors so pur- 
chased, as already stated, are for the 
exclusive use of the members of the 
club and their invited guests, and what 
is complained of as an unlawful selling 
in the present case is, we think, noth- 
ing more than an equitable mode by 
which the cost of the liquor used by 
members of the club is divided among 
them in proportion to the quantity 
which each member uses. This was 
the view taken by the supreme court of 
Tennessee in a case the facts of which 
were very similar to those of the case 
at bar. . . . Tennessee Club v. Dwyer, 
11 Lea, 452. To the same effect is Seim 
v. State, 55 Md. 566. See, also, Graff v. 
Evans, 8 Q. B. Div. 373; Com. v. Pom- 
phret, 137 Mass. 564; 11 Amer. & Eng. 
Enc. Law, p. 727. Besides these, a 
number of cases were cited at the bar, 
but we deem it unnecessary to com- 
ment upon them. The case depends 
upon the true construction of our own 
statute, and we are clearly of opinion 
that if, in the present case, there can 
be said to have been, in the strictest or 
most technical sense, a sale at all, it 
was not such a sale as is contemplated 
by that statute. The defendant club, 
in dispensing liquors to or at the ex- 
pense of its own members, was not en- 
gaged in carrying on the business of 
selling liquor, and the liquor license is 
required of those persons only who sell 
or offer to sell liquor as a business." 
And see, also, Barden v. Montana Club. 
(Mont.) 25 Pac. Rep. 1042; State v. Mc- 
Master, (S. Car.) 14 S. E. Rep. 290. 
182 State v. Lockyear, 95 N. Car. 633; 
State v. Neis, 108 N. Car. 787, 13 8. E. 
Rep. 225. 
133 People v. Andrews, 115 N. Y. 427, 
22 N. E. Rep. 358; People v. Sinell, 
(Sup.) 12 N. Y. Supp. 40: People v. Brad- 
ley, (Sup.) UN. Y. Supp. 594; State v. 
182 Ch. 8] 
THE LICENSING SYSTEM. 
§ 142 
One of the decisions of the supreme court of Indiana is much relied 
on as an authority in line with those just cited. But it appeared 
that the society there in question met every Sunday, for the purpose 
of consuming a keg of beer which had been bought by the treasurer 
the day before, with funds raised partly by monthly assessments on 
the members and partly by the sales of beer, at a fixed price, at the 
weekly assemblies. It will thus be seen that the sale and consump- 
tion of liquor was the very purpose for which the club was organized, 
and therein the case is to be distinguished from those already exam- 
ined. The court held-and very properly-that the treasurer was 
indictable for selling beer on Sunday. But the ground of the decis- 
ion appears in the following sentences from the opinion: "If the 
transaction set out in the agreed statement of facts be not an evasion 
and violation of the law, then a number of persons may do that law- 
fully which, if done by one person, would be unlawful. It would be 
a reproach of the law and its administration if a combination of per- 
sons could, by such an arrangement, evade the law and thwart the 
legis ative will."134 
There is also a case in the Kansas reports, which will be found, on 
examination, to belong in the same category as the foregoing. It 
was the case of an association which purchased beer outside the state 
and brought it into the state, and then sold chips to its members, 
each chip representing a drink of beer, and then furnished a drink 
of beer for each chip returned by a member. This, in a prohibition 
state, was so plainly a mere device to evade the law that the court 
could not have refused to rule that the persons concerned in it were 
liable to punishment.135 
The decisions in Iowa, while apparently against the right of a club 
Essex Club, (N. J. Sup.)20 Atl. Rep. 769; 
Martin v. State, 59 Ala. 34; People v. 
Soule. 74 Micb. 250, 41 N. W. Rep. 908. 
See, also, Kentucky Club v. Louisville, 
(Ky.) 17 S. W. Rep. 743. These cases 
all proceed on the theory that such a 
transaction is strictly and technically 
a sale. In view of the authorities cited 
above, this is very doubtful. But even 
conceding it to be so, it is clearly not 
the species of sale contemplated by the 
license laws. Those statutes are intend- 
ed for the restriction and regulation of 
grog-shops, and, properly considered, 
have no application to the management 
of clubs organized by gentlemen for 
social or other purposes. 
134 Marmont v. State, 48 Ind. 21. 
135 State v. Horacek, 41 Kans. 87, 21 
Pac. Rep. 204. 
183 § 142 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
to furnish liquor to its members, will be found, on closer scrutiny, to 
have been made in cases where it was necessary to frustrate an 
attempt to evade the law. Thus, in one of these cases, it was shown 
that the object of the club "was to supply its members with intoxi- 
cating liquors to be used as a beverage," and that "defendant had 
possession of the liquors used, and sold tickets to members of the 
club, which were exchanged for or given in payment of intoxicating 
liquors drank in defendant's house by the members of the club pre- 
senting the tickets." And the court characterized the scheme of 
organization as "a rather clumsy device by which the defendant and 
the members of the ' social club ' hoped to defeat the law and estab- 
lish a place of resort where they could be supplied with intoxicating 
liquors for unlawful use."136 
In the case of Rickart v. People™ it appeared that an associa- 
tion, formed for the avowed purpose of promoting temperance and 
friendship, claimed to have bought a certain dram-shop, belonging 
to a person who became a member and treasurer of the society. 
This person continued in possession of the dram-shop, having no 
license to sell liquor. Each member was required to pay one dollar, 
for which he received a ticket, with the numbers from one to twenty 
inclusive upon it, and upon presenting this ticket at the bar, the 
member received liquors or cigars, as he wished, and paid for the 
same by having numbers punched out of his ticket, each number 
representing five cents. Any person could become a member by pay- 
ing one dollar. The treasurer received all the money, rendering no 
account to the other members, and bought all liquors and cigars. 
It was held that the jury were warranted in finding that this was but 
a device to evade the law, and that the treasurer was guilty of unlaw- 
fully selling liquor. The words italicized above will show why this 
ruling was right, and how it is to be distinguished from the case of 
a bona fide social club. 
186 State v. Mercer, 32 Iowa, 405. The 
subsequent case of Stewart v. Waterloo 
Turn Verein, 71 Iowa, 226, 32 JN. W. 
Rep. 275, did not involve the question 
of the necessity of a club having a li- 
cense to sell liquor, but turned on the 
liability of a corporation to prosecution 
in a quasi-criminal action. 
137 79 Ill. 85. 
184 Ch. 8] 
THE LICENSING SYSTEM. 
§ 142 
In Maryland, the later decisions might appear to be antagonistic 
to the rule in Seim v. State, above cited. For they hold that an 
incorporated club is liable for providing liquors, and keeping them 
in its possession at its rooms, for the purpose of supplying them to 
its members as they may be called for.138 But it is to be noted that 
these cases were adjudged under a later statute, much more compre- 
hensive and stringent in its terms, and which, as has been suggested, 
was probably intended to meet the case of just such associations as 
that which was in question in Seim v. State. The statute referred 
to provides that "no person or persons, company, corporation, or 
association, shall deposit, or have in his, her, their, or its possession 
any spirituous or fermented liquors or alcoholic bitters or intoxicat- 
ing liquors, with intent to sell or give away the same."139 In addi- 
tion to the authorities already adduced, several other cases may be 
cited in support of the rule that the question to be considered is, 
whether the facts in evidence amount to an evasion of the law, or a 
device or attempt at such evasion, and that this is a question of fact 
for the jury.140 
Upon the whole, therefore, notwithstanding some conflicting rul- 
ings, the rational conclusion is that the intent must govern. On 
the one hand, if the object of the organization is merely to provide 
the members with a convenient method of obtaining a drink when- 
ever they desire it, or if the form of membership is no more than a 
pretense, so that any person, without discrimination, can procure 
liquor by signing his name in a book or buying a ticket or a chip, 
thus enabling the proprietor to conduct an illicit traffic, then it falls 
within the terms of the law. But on the other hand, if the club is 
organized and conducted in good faith, with a limited and selected 
membership, really owning its property in common, and formed for 
social, literary, artistic, or other purposes, to which the furnishing of 
liquor to its members would be merely incidental, in the same way 
and to the same extent that the supplying of dinners or daily papers 
138 Chesapeake Club v. State, 63 Md. 
446; State v. Easton Social Club, (Md.) 
20 Atl. Rep. 783. 
139 Acts Md. 1882, c. 112. 
140 Comm. v. Smith, 102 Mass. 144; 
People v. Andrews, 50 Hun, 591, 3 N. 
Y. Supp. 508; United States v. Wittig, 2 
Low. 466. 
185 § 142 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
might be, then it cannot be considered as within either the purpose 
or letter of the law. This rule is developed, with much clearness 
and force, in an opinion of the supreme judicial court of Massa- 
chusetts, as follows: "It is well known that clubs exist which limit 
the number of the members and select them with great care, which 
own considerable property in common, and in which the furnishing 
of food and drink to the members for money is but one of many con- 
veniences which the members enjoy. If a club were really formed 
solely or mainly for the purpose of furnishing intoxicating liquors to 
its members, and any person could become a member by purchas- 
ing tickets, which would entitle the holder to receive such intoxicat- 
ing liquors as he called for, upon a valuation determined by the 
club, the organization itself might show that it was the intention to 
sell intoxicating liquors to any person who offered to buy, and the sale 
of what might be called a temporary membership in the club, with a 
sale of the liquors, would not substantially change the character of 
the transaction. One inquiry always is, whether the organization is 
bona fide a club with limited membership, into which admission can- 
not be obtained by any person at his pleasure, and in which the 
property is actually owned in common, with the mutual rights and 
obligations which belong to such common ownership, under the con- 
stitution and rules of the club, or whether, either the form of a club 
has been adopted for other purposes, with the intention and under- 
standing that the mutual rights and obligations of the members shall 
not be such as the organization purports to create, or a mere name 
has been assumed without any real organization behind it." 141 In 
point of fact, the use of a form of organization as a social club, for 
the purpose of cloaking the operations of an illicit grog-stiop or the 
maintenance of a society for tippling purposes, became so common 
in some of the states that it was found necessary to provide against 
it by law.142 In Massachusetts, the statute provides that "all build- 
ings or places used by clubs for the purpose of selling, distributing, 
and dispensing intoxicating liquors to their members shall be deemed 
common nuisances." This law, it is held, applies to a place used by 
141 Comm. v. Pomphret, 137 Mass. 564, 
50 Am. Rep. 340. 
142 See, for instance, St. Mass. 1887, c. 
206; Laws R. 1.1887, c. 634, § 14. 
186 Ch. 8] 
THE LICENSING SYSTEM. 
§ 144 
an incorporated club to procure for and dispense to its members 
intoxicating liquor bought for and belonging to them individually.143 
§ 143. License to Joint Parties. 
There is nothing in the character of a license, or in the policy of 
the law applicable to it, which would prevent its being issued to two 
or more persons jointly, if the words of the statute will warrant it. 
Thus, in New Jersey, where the act authorizes the grant of "licenses 
to persons to keep inns," it is held to allow the grant of a license to 
more than one person, although, elsewhere in the statute, the licensee 
is always referred to in the singular number.144 
Part IV. Form and Conditions of License. 
§ 144. Form of License. 
A license to sell liquor is required to be in writing. A person 
indicted for unlawful selling cannot justify under a parol license from 
the proper officer, though he has paid the required fee.145 And in 
order to protect himself, he must show a license signed by one hav- 
ing authority to grant it.146 The certificate of the clerk of the county 
commissioners, that a person has been licensed by them, is not per 
se a license; nor is it conclusive evidence of the grant of such license, 
but it may be controlled by the records of the commissioners.147 But 
in Arkansas it is held that where a party has a license signed by the 
clerk and authenticated by the seal of the county, and countersigned 
by the collector, he has all that the law requires him to have, and 
the presumption will be that the county court authorized tne issue of 
the license upon a proper petition presented to it.148 The license 
granted, however, is the paper issued to the licensee, and not the 
vote or order under which the paper is issued. Hence evidence is 
143 Comm. v. Baker, (Mass.) 25 N. E. 
Rep. 718. 
444 State v. Hill. 52 N. J. Law, 326, 19 
Atl. Rep. 789. 
146Lawrence v. Gracy, 11 Johns. 179. 
And see Pope v. State, 2 Swan, 611. 
146 Cronin v. Stoddard, 97 N. Y. 271. 
147 Comm. v. Spring, 19 Pick. 396. 
148 State v. Brandon, 28 Ark. 410. 
187 § 145 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
not admissible, in a prosecution against the holder, to show that the 
licensing board had voted to correct a clerical error and omission in 
the paper.149 Unless otherwise provided by statute, the license would 
probably be sufficient in form if it designated the licensee, the place 
of sale, the class of license, the kind of liquor covered, and the author- 
ity granting it, with reasonable certainty. But where a license 
appeared on its face to have been granted on payment of fifty cents, 
when, under the statute, no license could be granted for a less fee 
than five dollars, it was held to be, priina facie, absolutely void.160 
A certificate, on a license, of leave to change the place of business, 
must be authenticated in the same way as the original license, and 
by the signature of the same officers.161 
§ 145. Designation of Place of Sale. 
The laws generally require that the license shall designate the 
place at which the holder proposes to carry on his business under it. 
In some states, however, it is considered that the statutory provision 
that the license shall specify the house is merely directory to the 
officers whose duty it is to issue the license, and that if the petition 
for license, and the order authorizing its issuance, describe the house 
intended, the license itself is not void for failure to specify such 
house.152 In Massachusetts, however, the rule is that a license which 
sets forth the name of the street only, and not the building in which 
the business is to be carried on, will not protect the holder in making 
sales.153 In the same state, under the statutes there obtaining, it is 
held that a retailer's license, when issued to one holding a license as 
an inn-keeper, need not specify the room or rooms in which the liquors 
are to be kept or sold.154 Where the act provides that no license shall 
be granted to be exercised in any dwelling-house, a license which 
shows, in its descriptive part, that the building is occupied partly as 
a dwelling-house is void.155 
149 Comm. v. Cauley, 150 Mass. 272, 22 
N. E. Rep. 909. 
150 Townsend v. State, 2 Blackf. 151. 
151 Comm. v. Merriam. 136 Mass. 433. 
192 Goforth v. State, 60 Miss. 756. 
163 Comm. v. Merriam, 136 Mass. 433. 
164 Comm. v. Stratton, 150 Mass. 188, 
22 N. E. Rep. 893. Compare Comm. v. 
Cauley, 150 Mass. 272, 22 N. E. Rep. 
909. 
156 Comm. v. McCormick, 150 Mass. 
270, 22 N. E. Rep. 911. 
188 Ch. 8] 
THE LICENSING SYSTEM. 
§ 147 
§ 146. Conditions in License. 
All licenses are either expressly or impliedly limited by the pro- 
visions of the existing laws and ordinances, and conditioned upon 
their due observance. But the licensing authorities have no power 
to insert in a license any restriction, limitation, or condition which 
would be repugnant to an existing statute. Hence, for example, a 
clause inserted in the licenses of hotel-keepers absolutely prohibiting 
the sale of liquor on certain days named (on which days, by the stat- 
ute, sales wrould not be unlawful) is unauthorized and nugatory.166 
But a provision in a druggist's license, that no liquors shall be sold 
by him or his agents to be drunk on the premises or in any place 
adjacent thereto, is proper and valid, where the law makes a dis- 
tinction, in respect to the amount of the fee charged, between licenses 
to druggists and to retail dealers.167 
§ 147. Duration of License. 
The time during which a license shall continue in force is usually 
fixed by the statute, either at one year from its date or until the end 
of the current excise year.163 If the law fixes its duration at one year, 
the authorities have no power to grant a license for less than a year; 
a license for four months will not protect the holder.159 Neither, in 
such case, can they grant a license for a longer period than one year. 
But it is not necessary that the time should begin and terminate with 
the term of office of the board which grants the license; they may 
grant a license to extend beyond their term of office, providing it does 
not exceed a year, and does not begin to take effect after their term 
of office has expired.160 In Texas, it is held that the license will take 
effect from the time the applicant produces to the clerk of the county 
court the county treasurer's receipt for the tax imposed by law, and 
not from the time when the county court acted upon the application.161 
166 In re Breslin, 45 Hun, 210. 
157 Spake v. People, 89 Ill. 617. 
168 See State v. Sumter County, 22 Fla. 
1; Disbrow v. Saunders, 1 Denio, 149. 
169 Gurley v. State, 65 Ga. 157. 
160 Hendersonville v. Price, 96 N. Car. 
423, 2 S. E. Rep. 155. 
161 Brown v. State, 27 Tex. 335. 
189 § 149 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
Part V. Limitation of Kights Secured by License. 
§ 148. License Subject to Existing Laws. 
A liquor license is always impliedly subject to such statutes and 
ordinances as are lawfully in existence at the time it is granted, 
without words in the license expressly referring to such laws.162 In 
other words, the rights and privileges secured by a license do not 
include the right to disregard any valid law. They are such only as 
can be exercised in conformity with, and in subordination to, the laws 
already in force. Hence, when a party applies for and accepts a 
license under a city ordinance imposing conditions and restrictions, 
and the license itself contains a condition that it may be revoked at 
the discretion of the mayor, he thereby assents to the terms and con- 
ditions imposed, both in the license and in the ordinance.163 A license 
to sell liquor for certain purposes therein specified cannot protect the 
licensee from a criminal prosecution for violating the laws of the state 
by selling liquors for other purposes than those named in the license.164 
So also, such a license does not authorize the holder to sell on Sun- 
day or other prohibited days, or to minors or other prohibited persons, 
contrary to the provisions of the existing criminal laws.166 Under a 
statute authorizing the county court to make an order prohibiting 
the sale of liquors within three miles of any college or academy in 
the county, when the order is made, the power vested in the court is 
exhausted, and it has no power to revoke the order upon a subsequent 
petition; and a license to sell liquor, afterwards granted, is no pro- 
tection against a prosecution for selling within the prohibited limits.166 
§ 149. Effect of Laws Subsequently Enacted. 
We have already seen that, on constitutional grounds, there is no 
valid objection to laws which impose additional burdens or responsi- 
bilities upon the holders of existing licenses, or subject their business 
162 Baldwin v. Smith, 82 Ill. 162. See, 
also, O'Flinn v. State, 66 Miss. 7, 5 
South. Rep. 390. 
163 Schwuchow v. Chicago, 68 Ill. 444. 
164State v. Adams, 20 Iowa, 486; Curd 
v. Comm., 14 B. Mon. 886. 
166 Lambert v. State, 8 Mo. 492. 
166 Wilson v. State, 35 Ark. 414. 
190 Ch. 8] 
THE LICENSING SYSTEM. 
§ 150 
to new restrictions or limitations. As a license is neither a contract 
nor property, such laws, in their retroactive operation, are not to be 
assailed as impairing the obligation of contracts or divesting vested 
rights. The police power of the state remains always unfettered. 
And the licensee takes his permit subject to the contingency that 
there may be changes in the laws, adopted in the exercise of that 
power, which will render his privilege less valuable or his responsi- 
bilities more onerous.167 The fact that money has been paid for the 
license does not exempt the holder from the operation of subsequent 
police regulations.168 Nevertheless, on the principle that a statute 
will not be construed as operating retrospectively, unless upon the 
clearest and most explicit expression of the legislative intention 
in that regard, it is held that a law concerning licenses, if not other- 
wise expressly provided, will be applicable only to licenses granted 
after it takes effect.169 
§ 150. Restriction as to Place of Sale. 
A liquor license restricts the privilege to the place, as well as 
the person, licensed.170 And one license to retail will not authorize 
the licensee to conduct the business of selling in more than one 
place.171 Thus, a license to keep a hotel or tavern in a particular 
house will not legalize a sale of spirits at any other place than the 
house and its appendages, unless it be to persons who are guests of 
the tavern.172 A small building, on the same lot with a dwelling 
house, but at a distance of forty-five rods from it, with a passage- 
way between them, is not within a license to sell liquor in a dwell- 
ing-house "and the apartments and dependencies thereof."173 But the 
question whether two rooms in the same house, in which it is pro- 
posed to sell liquor, are in truth two distinct places, so that the 
applicant may be required to take out two licenses, is a question of 
167 Supra, §§ 127, 128. 
166 State v. Isabel, 40 La. Ann. 340, 4 
South. Rep. 1. 
169 State v. Andrews, 26 Mo. 171. 
17® State v. Pretty man, 3 Harr. (Del.) 
570. 
171 State v. Walker, 16 Me.-241; State 
v. Hughes, 24 Mo. 147; Zinner v. Comm., 
(Pa. Sup.) 14 Atl. Rep. 431. 
172Wason v. Severance, 2 N. H. 501, 
State v. Moody, 95 N. Car. 656. 
178 Comm. v. Estabrook, 10 Pick. 293. 
191 § 151 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
fact; and the judgment of the licensing authorities, holding that they 
are distinct places, will not be disturbed on appeal, if the evidence 
justifies, though it may not require, that conclusion.174 Where a 
liquor-seller has a bar in two adjoining rooms, connected by an arch- 
way in the partition wall, one for negroes and the other for white 
persons, only one license is required.178 So a single license will pro- 
tect the proprietor of a large hotel who maintains three bars in the 
building, screened off by partitions and connected by doorways.176 
But where a person had a license to sell intoxicating liquors at his 
stand at the corner of two designated streets, and he had another 
stand adjoining this, with an internal communication between the 
two, and he sold liquors at both, it was held that the license applied 
only to the first named place.177 It is further to be observed that a 
general license to retail liquor within the county does not authorize 
sales to be made within the district covered by a special prohibitory 
law, as, for instance, within a certain distance of a church, school, 
or factory, if that is specially forbidden by law.178 
§ 151. Laws Prohibiting Sales to Particular Classes of 
Persons. 
Since the privilege conferred by a license is not general, but special 
and limited in its nature, and does not include the right to violate 
any provision of the positive law, it follows that the license will not 
protect its holder in making sales to infants, intoxicated persons, 
habitual drunkards, or any other persons to whom the statute 
expressly forbids the selling or furnishing of liquor.179 And it is no 
defense to an indictment for selling liquor to such classes of persons 
that the law prescribing and punishing the offense was not passed 
until after the defendant's license was issued; for he took the license 
subject not only to such laws as were then in force, but also to such 
as might thereafter be enacted, regulating the sale of li quor.ls0 
174 Sanders v. Elberton, 50 Ga. 178. 
175Hochstadler v. State, 73 Ala. 24. 
176 St. Louis v. Gerardi, 90 Mo. 640, 
3 S. W. Rep. 408. 
177 State v. Fredericks, 16 Mo. 382. 
178 Barnes v. State, 49 Ala. 342. 
179 Comm. v. Tabor, 138 Mass. 496. 
180 Comm. v. Sellers, 130 Pa. St. 32, 18 
Atl. Rep. 541. 
192 Ch. 8] 
THE LICENSING SYSTEM. 
§ 153 
§152. Requirement that License be Displayed. 
It is within the undoubted jurisdiction of the legislature, in the 
exercise of the police power, to regulate the manner in which drink- 
ing-saloons shall be conducted, and to enact such provisions, not 
inconsistent with the rights and liberties of the citizen, as shall tend 
to facilitate the detection and punishment of illicit dealing. Hence 
a law which requires the holder of a liquor license, under penalties, 
to keep his license posted in a conspicuous place in his saloon, or in 
the house where his business is conducted, is a valid and constitu- 
tional enactment.181 
§ 153. Screen Law. 
In some four or five of the states we find a statute in force which 
provides that, during the days and times when licensed saloons are 
required by law to be kept closed, (or, in Massachusetts, at all times,) 
all screens, curtains, blinds, etc., which might prevent a clear view 
of the interior of the premises from the outside shall be removed, or 
that no such obstructions shall be "placed or maintained." This is 
commonly called the "screen law." It is intended to facilitate the 
detection of persons carrying on their business at prohibited times. 
The constitutionality of such a statute has not been successfully 
assailed. Being a reasonable and proper police regulation, it cannot 
be said to fall within the constitutional guaranty to private persons 
of security against unreasonable searches, nor does it, in any just 
sense, deprive the persons affected of their liberty or property with- 
out due process of law.182 Neither is it invalid because it fails to 
define what shall constitute an obstruction of the view, within the 
meaning of its terms.183 As to the persons upon whom the screen 
law operates, it is held that, though the illegal act was done by the 
liquor-seller's servant, in his absence, this will not excuse the mas- 
181 Ex parte Bell, 24 Tex. App. 428, 6 
S. W. Rep. 197; Bell v. State, 28 Tex. 
App. 96, 12 S. W. Rep. 410. 
182 Robison v. Haug, 71 Mich. 38, 38 
N. W. Rep. 668. 
183 State v. Doyle, 15 R. I. 325, 4 Atl. 
Rep. 764. 
INTOX.LIQ.-13 
193 § 153 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
ter.184 And where the language of the act is that "no such licensee" 
shall place or maintain any screen, etc., it is considered that these 
words refer to every licensee, and not merely to one who has been 
required by the licensing board to remove screens or other obstruc- 
tions from his premises.186 The fact of the obstruction of a view of 
the interior being the substantive part of the offense, it is immaterial 
what purpose may have influenced the party in putting up the screens 
or curtains complained of, if in fact they have that effect.186 And if 
the act is so framed as to require a clear view of "the interior of the 
premises," it is violated by the placing of a curtain which obstructs 
the view of any part of the interior, whether such part is used for 
the sale of liquor or not.187 Further, although the particular obstruc- 
tion was in place when the license was granted and took effect, that 
will not justify its continuance; it must be removed, or the law is 
violated.188 If the licensee keeps his bar in a middle room in the 
building, to which entrance is usually had from the street by a door 
from the street into the front room, and thence by a door into the 
middle room, screens on the windows of the front room, which inter- 
fere with a view of the door into the middle room, are a violation of 
the law.189 But the closing of a shutter over one window will not be 
unlawful, unless it materially interferes with a view of the interior, 
and whether it does or does not so interfere is a question of fact for 
the jury.190 It is held that a board partition between two rooms is 
not a "device," within the meaning of a law which prohibits "blinds, 
screens, shades, curtains, or other devices" to obscure the view of the 
interior.191 Nor is the law violated by maintaining a partition between 
a front and rear room, where the license gives authority to sell in 
both of such rooms.192 In Massachusetts, where the language of the 
184 Comm. v. Kelley, 140 Mass. 441,5 
N. E. Rep. 834. 
185 Comm. v. Rourke, 141 Mass. 321, 6 
N. E. Rep. 383. 
180Comm. v. Moore, 145 Mass. 244, 13 
N. E. Rep. 893. 
187 Comm. v. Worcester, 141 Mass. 58, 
6 N. E. Rep. 700. 
188 Comm. v. Sawtelle, 150 Mass. 320, 
23 N. E. Rep. 54. 
189 Comm. v. Kane, 143 Mass. 92, 8 N. 
E. Rep. 880. 
190Comm. v. McDonnough, 150 Mass. 
504. 23 N. E. Rep. 112. 
191 Schultz v. Cambridge, 38 Ohio St. 
659. 
192 Comm. v. Barnes, 140 Mass. 447, 5 
N. E. Rep. 252. 
194 Ch. 8] 
THE LICENSING SYSTEM. 
§ 154 
screen law is not restricted to any day or time, an attempt was made 
to obtain a judicial ruling that the law was not operative on Sunday, 
which, of course, would have defeated one of its primary purposes. 
A defendant, being indicted for a violation of this law, asked the 
court to rule that, it being unlawful for him to do business on his 
premises on Sunday, he had a right to close up the premises on that 
day, and obstruct the view to them in any manner he saw fit. The 
judge refused to so rule, but instructed the jury that the law applied 
to the manner in which the defendant kept the premises the same 
upon Sunday as upon any other day. And this instruction was sus- 
tained on appeal.193 Nor does it make any difference that the licensee 
is not in fact carrying on business on that day.194 Whether the screen 
law creates an offense and provides a penalty, or merely makes the 
license to sell subject to a condition that the acts prohibited shall not 
be done, will depend upon the terms of the particular statute. In 
Massachusetts, the former view is held.195 And the mere fact that a 
person indicted under this law holds a license is no defense.196 When 
the license requires the closing of entrances elsewhere than on the 
public street, it is forfeited by keeping open a rear door to a drive- 
way.197 
Part VI. Proceedings to Obtain License. 
§ 154. Power to Grant Licenses. 
The provisions of the statutes in the different states, as to the 
authorities in whom the power to grant liquor licenses shall be vested, 
exhibit a considerable difference of plan and policy. But speaking 
generally, this duty is confided either to the board of commissioners 
or supervisors of the county, to the county court, to the probate 
judge, to the council or board of aidermen of a city, or to a board of 
excise specially created for the purpose. There is no constitutional 
objection to conferring upon a city council the discretionary power to 
193 Comm. v. Auberton, 133 Mass. 404. 
194 Comm. v. Casey, 134 Mass. 194. 
195 Comm. v. Costello, 133 Mass. 192. 
196 Comm. v. Salmon, 136 Mass. 431. 
197 Comm. v. Ferden, 141 Mass. 28, 6 
N. E. Rep. 239. 
195 § 154 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
grant such licenses.198 Nor is it beyond the power of the legislature 
to cast this duty upon the probate judge,199 or, as was done by an 
early statute in South Carolina, the clerk of the general sessions of 
the peace.200 But the general rule is, that whatever court, person, 
or board is invested with this power by the statute, possesses it 
exclusively.201 The law does not contemplate the exercise of such 
power co-ordinately by different persons or tribunals. And its exer- 
cise, by the proper authority, is in all the states restrained by condi- 
tions and limitations, some having reference to the character of the 
applicant or his obtaining the consent of a certain number of per- 
sons, and others depending upon local circumstances or local policy. 
Thus, where the statute limits the number of licenses to be granted 
by any city or town to one for every thousand of population, in 
determining whether a license thereafter granted is in excess of the 
provisions of the act, licenses lawfully granted for the current year, 
before the act took effect, and not otherwise forfeited or rendered 
void, must be counted.202 So where the aidermen of a city, by a vote 
which has the effect of a standing rule, decide that no licenses shall 
be granted unless six aidermen assent thereto, this rule, while in force 
and acted upon, determines the effect of any vote upon granting a 
license, and if only five aidermen vote in favor of an applicant, a 
license is not granted.203 So, if a special law forbids the sale of liquor 
within two miles of the "S. Church" in M. county, this is descriptive 
of the locality, and no license can be granted within those limits, 
although the building intended for and known as the "S. Church" 
was not completed at the time the act was passed.204 But it is held 
that covenants in deeds, against the sale of intoxicating liquors on 
the premises conveyed, will not prevent the proper authorities from 
198State v. Columbia, 17 8. Car. 80. 
199 Intoxicating Liquor Cases, 25 
Kans. 751. 37 Am. Rep. 284. 
209 O'Driscoll v. Viard, 2 Bay, 816. 
201 See Cooke v. Court of Common 
Pleas, 51 N. J. Law, 85,16 Atl. Rep. 176; 
Zinner v. Comm., (Pa. Sup.) 14 Atl. 
Rep. 431; Wiggins v. Varner, 67 Ga. 
583. 
202 Comm. v. Hayes, 149 Mass. 32, 20 
N. E. Rep. 456. 
203 Comm. v. Moran, 148 Mass. 453, 19 
N. E. Rep. 554. 
204 Jones v. Comm'rs of Moore Co., 
106 N. Car. 436, 11 8. E. Rep. 514. 
196 Ch. 8] 
THE LICENSING SYSTEM. 
§ 156 
granting licenses which will have the effect to legalize such sales on 
such premises.205 
§ 155. Power cannot be Delegated. 
The power to grant liquor licenses, involving as it does the exercise 
of judgment and discretion, is such as must be exercised by the 
authority to which it is confided; it cannot lawfully be delegated to 
any other person or body. Thus, where the board of county com- 
missioners is intrusted with this authority, it cannot confer upon the 
county attorney, either as such or as a simple agent, the power, nor 
impose upon him the duty, of issuing licenses or accepting bonds. 
And the county attorney cannot, in either capacity, be legally author- 
ized to hear or determine upon an application for a license, or to fix 
or receive the price of the same, or to accept or approve the requisite 
bond, or to issue the license itself. And licenses issued by such 
county attorney are absolutely void, whether assumed to be issued 
by him as county attorney or as an agent for the board.206 Nor can 
the board of commissioners delegate to their clerk the power to issue 
licenses, and licenses granted by him, unless supported by a special 
order of the board, have no validity.207 So, if the charter of a city 
gives to the common council power to pass ordinances for the licens- 
ing of saloons, it is only the common council, and not the mayor, 
that can grant licenses.208 If, however, the matter in respect to 
which authority is delegated relates only to the mode of applying for 
the license, or to the clerical work of preparing and issuing the paper, 
but not to the power to grant it or to the discretion as to the persona 
to be licensed, it is not open to objection on this ground.209 
§ 156. Application for License. 
The first step in the proceedings to obtain a license, as commonly 
provided in the statutes, is the presentation to the proper authorities of 
205 State v. Busby, 44 N. J. Law, 627. 
206 Hennepin Co. Comm'rs v. Robin- 
son, 16 Minn. 381, (Gil. 340.) 
207 Thorn v. Atlanta, 77 Ga. 661; May- 
son v. Atlanta, Id. 662. 
208 State v. Bayonne, 44 N. J. Law, 114. 
209 In re Bickerstaff, 70 Cal. 35, 11 Pac. 
Rep. 393. 
197 § 156 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
a written application or petition on the part of the person who desires 
to be licensed. While this petition should contain all that the statute 
requires to appear in it, its substance is to be mainly regarded, and 
its form should not be judged by the strictest rules. Mere informal- 
ities in the petition are not sufficient ground for refusing to grant the 
license.210 Under a statute which prohibits the sale without license 
of liquor in less quantities than a pint, a petition for license is not bad 
for failing to state in what quantity the applicant desires to sell.211 
And a requirement that an application for a license shall be for the 
right to sell "liquors, wines, or beer" is sufficiently complied with by 
an application for a license to sell "spirituous or intoxicating liquors, 
wines, and beer."212 The petition should also contain a description 
of the premises where it is proposed to carry on the business; but 
this description is sufficient if so reasonably full and certain as to 
point out the exact location.213 Thus, an application for license to 
sell liquor at "No. 1005 Elizabeth Avenue, the corner of Spring Street, 
in said city," sufficiently designates the place.214 The petition should 
also show that the applicant has filed the affidavit required by the 
statute as a condition precedent to obtaining a license.215 An altera- 
tion of a petition for a liquor license, which consists of erasing the 
name of the person to whom those recommending the application sup- 
posed the license was to issue, and substituting the name of another 
person, affords a sufficient ground for refusing a license to the sub- 
stituted person.216 The petition should bear the signature of the appli- 
cant. But in some circumstances and under the terms of some laws, 
this may be dispensed with, if it is indorsed with his verifying affi- 
davit.217 
210 Hearn v. Brogan, 64 Miss. 834, 1 
South. Rep. 246. 
211 Hearn v. Brogan, 64 Miss. 334, 1 
South. Rep. 246. 
212 State v. Jefferson Co. Comm'rs, 20 
Fla. 425. 
213 Murphy v. Monroe Co. Comm'rs, 
73 Ind. 483. 
214 State v. Reingardt, 46 N. J. Law, 
337. 
216 Glenn v. Lynn, 89 Ala. 608, 7 South. 
Rep. 924. 
216 Polk Co. Comm'rs v. Johnson, 21 
Fla. 578. 
217 State v. Heege, 37 Mo. App. 838. 
198 Ch. 8] 
THE LICENSING SYSTEM. 
§ 158 
§ 157. Affidavit of Applicant. 
In some states, the applicant for a license is required to present, 
with his petition, an affidavit promissory in its nature, of his inten- 
tion duly to observe all the provisions of the law. This, it is held, is 
a jurisdictional prerequisite to the issue of the license. And if the 
affidavit omits material statements which it should contain, the license, 
though issued by the proper officer, is void.218 Sometimes, also, the 
affidavit is required to contain a statement that the signatures of 
the persons joining in the petition or recommending it are genuine, 
and were not procured by any fraud, bribery, or deception. These 
facts, it is said, the applicant should know of his own knowledge, and 
he should not base his affidavit on the statements of others whom he 
may have procured to get the names for him.219 
§ 158. Notice of Application. 
It is generally provided, by statute or ordinance, that notice shall 
be given, in some public manner, of all applications for liquor licenses, 
for a prescribed period of time, in order that persons interested in 
contesting particular applications may be fully informed when and 
where to take action. This is held to be a prerequisite to the juris- 
diction of the licensing authorities to pass upon the application, and 
until the expiration of the time during which the notice must be 
given, they have no power to take any action thereon.220 For exam- 
ple, where such notice was required to be published for two weeks, 
and the first publication, in a particular case, was made on June 5th, 
and the time for hearing the application was fixed in the notice on 
June 18th, and on that day, the licensing board being in session, the 
application was considered, and (there being objections to the issuing 
of the license) the 22d day of June was appointed for the hearing, it 
was held that the board had no authority to make the order of post- 
ponement, the notice being insufficient.221 Where the provision of 
218 Russell v. State, 77 Ala. 89. 
239 State v. Sumter Co. Comm'rs, 22 
Fla. 364. 
220 Pelton v. Drummond, 21 Nebr. 492, 
32 N. W. Rep. 593; State v. Murphy, 51 
N. J. Law, 250, 17 Atl. Rep. 157. 
221 Pelton v. Drummond, 21 Nebr. 492, 
32 N. W. Rep. 593. The notice is to be 
199 § 159 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
the law is that the notice shall be published in the newspaper having 
the largest circulation in the county where the liquors are to be sold, 
in the absence of a charge of bad faith on the part of the applicant 
in the selection of the paper, his decision in that regard will not be 
inquired into.222 These statutes further provide that the notice shall 
contain "a particular description of the premises on which the license 
is to be exercised, designating the building or part of a building to be 
used," or a statement of "the precise location of the premises in which 
he desires to sell." The decisions are that this requisite must be 
fully and exactly complied with. Any ambiguity in the description, 
or the use of terms which admit of a reasonable uncertainty as to 
what premises are intended, will invalidate the notice.223 A notice, 
for instance, giving nothing but the name of the applicant, and the 
name of the street and town, is not sufficient.224 It is also necessary 
to comply strictly with the provisions in regard to naming or describ- 
ing the applicant. Thus, under a statute requiring notices of appli- 
cations for license to "set forth the name of the applicant in full," 
a notice by a firm which designates the applicants as "J. F. Bearce 
& Son" is insufficient.225 
§ 159. Recommendation of Application. 
Another provision of the license laws, which exists in different 
forms in all the states adopting this system, is that which requires 
the applicant's petition to be indorsed, or accompanied, by a recom- 
mendation or petition signed by a certain number of qualified per- 
sons, or of his neighbors, or by a certain proportion of the voters, free- 
holders, or citizens resident within the district. This petition certi- 
fies to the moral fitness of the applicant for the privilege he seeks, 
continued for two weeks. It is to be 
published in every issue of the paper. 
If the paper is published daily, then the 
notice must be published daily; if the 
paper is published weekly, then weekly 
publication will be sufficient. State v. 
City of South Omaha, (Neb.J 51 N. W. 
Rep. 291. 
222 Lambert v. Stevens, (Nebr.) 45 N. 
W. Rep. 457. 
228 Comm. v. Bearce, 150 Mass. 389, 23 
N. E. Rep. 99; Barnard v. Graham, 120 
Ind. 135, 22 N. E. Rep. 112. 
224Dexter v. Town Council, (R. I.) 21 
Atl. Rep. 347. 
225 Comm. v. Bearce, 150 Mass. 389, 23 
N. E. Rep. 99. 
200 Ch. 8] 
THE LICENSING SYSTEM. 
§ 160 
and perhaps, in some states, to other facts deemed essential or 
important, and expresses the desire of the signers that a license be 
issued to him. It must follow the statute and contain all that is 
there prescribed. Thus, if the law requires that the petition shall 
recommend the applicant as "of good reputation and a sober and 
suitable person to receive such license," a petition which omits the 
representation concerning good reputation is insufficient.226 Nor is 
a petition sufficient which avers that a certain firm is of good repu- 
tation, without further mention of the reputation of the individual 
members of the firm.227 The withdrawal of the name of a signer of 
such petition, after it has been presented to the licensing authorities, 
cannot, without their consent, divest them of jurisdiction.228 Although 
the statute may require that the petitioners shall each sign in the 
presence of two witnesses, it does not follow that the witnesses must 
subscribe or attest the signatures, unless that also is specified; and 
the failure to publish the mark of some of the petitioners, who made 
their mark in signing, and whose names are published, is not a 
material defect.229 
§ 160. Who may Sign Recommendation. 
The signers to a recommendation of a petition for license must 
be such as the statute requires,-adults, freeholders, tax-payers, 
residents of the district, citizens, or otherwise, according to the 
terms of the law. Any attempt to evade the law in this respect, or 
to practise a fraud upon it, will be discountenanced by the courts. 
Thus, a deed of lands, made to a large number of persons for a sin- 
gle consideration, and merely for the purpose of qualifying them to 
sign recommendations for licenses, is fraudulent, and will not con- 
stitute them "reputable freeholders" within the statute.230 But the 
signing of a recommendation for one species of liquor license does 
not disqualify the person from signing a recommendation for a license 
226 Corbett v. Duncan, 63 Miss. 84; Mc- 
Creary v. Rhodes, Id. 308. 
227 Loeb v. Duncan, 63 Miss. 89. 
228 State v. Reingardt, 46 N. J. Law, 
337. 
229 State v. Sumter Co. Comm'rs, 22 
Fla. 1. 
230 State v. Atlantic City, 48 N. J. Law, 
118, 3 Atl. Rep. 65. 
201 § 161 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
of another kind.231 The applicant for license, under some systems, 
is considered the same as any other registered voter of the district, 
if he possesses that qualification, and may himself sign the peti- 
tion.232 Where, as in Mississippi, it is provided that both petitions 
and counter-petitions may be filed, and that any name found on 
both petitions shall be counted against the granting of the license, 
it is held that this does not preclude one who has signed both a 
petition and a counter-petition from withdrawing his name from the 
counter-petition by signifying his desire therefor by still another 
written petition.233 
§ 161. Number of Persons Recommending. 
As to the number of signers necessary to a petition for the grant- 
ing of a license to a particular applicant, the statutory provisions in 
the various states are widely different. In some, a certain number 
of persons are required,-as five, twelve, or twenty freeholders in 
his immediate neighborhood,-in others, a majority of the registered 
voters or tax-payers, or even a larger proportion. Whatever the 
requirement of the act may be, it must be fully complied with. With- 
out the consent or indorsement of at least the minimum number of 
qualified persons, there is no jurisdiction to grant the license. A 
license issued without this sanction is void.234 And even if the appli- 
cant brings himself fully within the law, in this respect, still it is 
held, in most of the states, that the licensing authority is not thereby 
entirely divested of its discretion to reject the application for cause.235 
Although it may appear on the face of the petition that the requisite 
number of persons have signed it, this does not preclude inquiry into 
the genuineness of the signatures; and if it be proved that so many 
of the signatures were forged or unauthorized as to reduce the num- 
ber of genuine signatures below the required majority, it is proper to 
231 State v. Reingardt, 46 N. J. Law, 
337. 
232 State v. Sumter Co. Comm'rs, 22 
Fla. 1. 
233 Perkins v. Henderson, (Miss.) 9 
South. Rep. 897. 
234 Metcalf v. State. 76 Ga. 308; Ex 
parte Cox, 19 Ark. 688. 
235 Perkins v. Ledbetter, (Miss.) 8 
South. Rep. 507. 
202 Ch. 8] 
THE LICENSING SYSTEM. 
§ 161 
refuse the license.236 The statutes prescribing this condition may be 
said to have generally in view the interests of the people who live 
nearest to the locality where the privilege, if granted, is to be exer- 
cised, and they should be construed with reference to that object. 
Thus, in Georgia, the law requires the written consent of the nearest 
bona fide residents, five of whom shall be freeholders owning land 
(irrespective of county lines) nearest the place of business to be 
licensed, with a proviso that the act shall not apply to incorporated 
towns or cities. And it is held that the persons residing nearest the 
place where the liquor is to be sold are the persons who are to give 
their consent, and it makes no difference whether they reside in a 
different county from that of the applicant or not, or within an incor- 
porated town or city.237 In Missouri, where the requirement for the 
larger towns is that the petition shall be signed by a majority of 
the "assessed tax-paying citizens," it is held that the court, in deter- 
mining whether sufficient names appear, must count married or single 
women who reside in the town or city, and own property in their own 
right, and were assessed thereon at the last assessment, and also 
minors, resident in the city, who have guardians and who own prop- 
erty, but that persons residing outside the city, though owning prop- 
erty in the city and regularly assessed, are not to be counted.238 It 
seems that there is no objection to uniting the signatures on several 
papers, recommending the same applicant, if such papers are exact 
duplicates. But in a case where the applicant circulated several peti- 
tions among the voters, the captions to which were materially differ- 
ent, it was held that he could not take the names subscribed to the 
various petitions and attach them all to one, in order to make up a 
majority in favor of the license.239 Where the petition, at the time 
of its presentation, does not bear enough signatures to warrant the 
issuing of a license, but afterwards receives additional names, this 
236 State v. County Comm'rs, 22 Fla. 
364. 
237 Ballew v. State, 84 Ga. 138,10 S. E. 
Rep. 623. And see Glenn v. Lynn, 89 
Ala. 608, 7 South. Rep. 924. 
238 State v. County Court, 90 Mo. 593, 
2 S. W. Rep. 788. See, also, State v. 
Meyers, 80 Mo. 601. The petition must 
be signed by a majority of "assessed 
tax-paying citizens, " not merely of tax- 
payers. State v. Heege, 37 Mo. App. 338. 
239 Collins v. Barrier, 64 Miss. 21, 8 
South. Rep. 164. 
203 § 162 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
proceeding, although irregular, will not nullify the petition; for pro- 
ceedings to obtain a license need not be conducted with the same 
strict accuracy which is required in purely judicial proceedings.240 
Finally, it is to be remarked that a statute requiring an applicant for 
license to secure the recommendation of a majority of the household- 
ers in the precinct is not inoperative because it provides no way of 
obtaining such recommendation.241 
§ 162. Moral Qualifications of Applicant. 
In all the states where a principle of selection is applied to the 
persons seeking the privilege of a license to sell liquor, the laws 
require that the applicant shall be possessed of certain moral qualifi- 
cations, as that he shall be a "moral and temperate man" or a 
"sober and suitable person to be licensed." The question, however, 
under these statutes, while concerning in a sense the general moral 
character of the petitioner, is one which must necessarily be deter- 
mined by an examination of his conduct in particular instances. 
Specific acts of immorality may be adduced to show his unfitness, 
and the licensing authorities are to judge whether the acts shown are 
sufficient, in themselves or as an index to character, to disqualify 
him.242 Unless otherwise provided by statute, there is no absolute 
and single criterion. For example, one may be an immoral man, and 
not a proper person to be licensed, although he himself is not in the 
habit of becoming intoxicated.243 And on the other hand, the fact that 
he has been seen intoxicated, and that he sometimes takes a drink, 
is not necessarily enough to disqualify him.244 If it is shown that 
the applicant is a common gambler, or is in the habit of frequent- 
ing gambling houses, this is thought to be sufficient ground for with- 
holding the license, although such conduct is not specified in the 
statute as a disqualifying cause.245 But when one of two joint peti- 
tioners for a license absconds, this is not necessarily a reason for 
240 State v. Jefferson Co. Comm'rs, 20 
Fla. 425; Livingston v. Corey, (Nebr.) 
50 N. W. Rep. 263. 
241 Jones v. Hilliard, 69 Ala. 300. 
242 Stockwell v. Brant, 97 Ind. 474. 
243 Hill v. Perry, 82 Ind. 28. 
244 Calder v. Sheppard, 61 Ind. 219. 
245 Groscap v. Rainier, 111 Ind. 361,12 
N. E. Rep. 694. 
204 Ch. 8] 
§ 162 
THE LICENSING SYSTEM. 
refusing the license to the other.240 It is held, where the statute is 
expressed in general terms, that a single violation of the liquor laws, 
previously committed by the applicant, is not alone sufficient to dis- 
qualify him. Such an act is indeed evidence bearing upon his char- 
acter, but it is not conclusive proof of his unfitness to hold the priv- 
ilege.247 But repeated violations of the law-as, a succession of 
unlicensed sales, or numerous instances of illegal sales under a for- 
mer license-will be sufficient to warrant the refusal of the license.243 
So where it was shown that the applicant had been previously engaged 
in the liquor traffic, and had, while so engaged, sold to habitual drunk- 
ards, and did not keep an orderly house, and that he was incapable 
of keeping such a house, and was not a fit person to be intrusted 
with the sale of liquor, it was held proper to refuse him a license.249 
In some of the states, however, the case of a single previous viola- 
tion of the law is provided for by statute. In Nebraska, for 
instance, the board must refuse a license "if it shall be satisfactorily 
proven that the applicant for license has been guilty of the viola- 
tion of any of the provisions of this act within the space of one 
year, or if any former license shall have been revoked for any misde- 
meanor against the laws of this state." Under this statute, it is 
held that when an applicant has violated the act by selling liquor to 
an habitual drunkard, it is the duty of the board to refuse a license.250 
But it is also held that the terms of this statute are not exclusive; 
they do not limit the licensing board to the consideration of the objec- 
tions named.251 When a remonstrance against the issuing of a license, 
based on objections to the moral character of the applicant, is filed, 
and the question thus brought into issue, the burden is cast upon the 
petitioner of proving, by a preponderance of evidence, that he is not 
disqualified from obtaining the license by immorality or previous 
illegal conduct and is not unfit to receive and exercise the privilege.252 
246 Polk Co. Comm'rs v. Johnson, 21 
Fla. 578. 
247 Golden v. Bingham, 61 Ind. 198; 
Keiser v. Lines. 57 Ind. 431. 
248 Bourjohn's Application, 2 Pa. Co. 
Ct. Rep. 33; Meitzler's Application, Id. 
37. 
249 Brunson v. Dunn, 124 Ind. 252, 24 
N. E. Rep. 749. 
260 State v. Koso, 25 Nebr. 607, 41 N. 
W. Rep. 558. 
261 State v. Hanlan, 24 Nebr. 608, 39 
N. W. Rep. 780. 
262 Goodwin v. Smith, 72 Ind. 113, 37 
205 § 164 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
This rule is derived from the principle that "whoever asserts a right 
dependent for its existence upon a negative, must establish the truth 
of that negative." 
§ 163. Requirement as to Residence. 
The requirement that the applicant for license shall be a citizen of 
the state, or a resident of the county or other district where he pro- 
poses to do business, is jurisdictional in its nature. Unless it be 
made to appear to the licensing authorities that the petitioner pos- 
sesses this qualification, they have no power to grant the license.258 
In a case in New York, it appeared that a license had been granted 
by the excise commissioners of Seneca county to one D., reciting that 
he was a resident of R. in said county, and authorizing him to sell 
liquor to be drunk in his house as an inn or tavern. In point of 
fact, D. at the time resided in the town of T., in Yates county. 
Under this license, he kept a drinking place in a mere recess in a 
room in his warehouse, situated in the waters of the Seneca lake, a 
few feet from its western shore, and a few yards from the county 
line, within the town of R. On this state of facts, it was held that 
D.'s license was void.254 
§ 164. Remonstrances. 
The license laws generally provide for the filing of remonstrances 
or counter-petitions by persons desiring to oppose the grant of a 
license to a particular applicant. This right, however, is usually 
restricted to parties who may have a practical interest in the matter. 
Thus, in one state, the privilege of remonstrating is given to "any 
voter of the township," and it is held that the right to remonstrate 
is lost when the person ceases to be a voter of the township.255 The 
remonstrance must be presented to the board or court empowered to 
grant licenses, before which the particular application is pending; 
on appeal, the court has no power to allow a new party to appear 
Am. Rep. 144; Chandler v. Ruebelt, 83 
Ind. 139. 
253 McGee v. Beall, 63 Miss. 455. 
^People v. Davis, 45 Barb. 494. 
255 List v. Padgett, 96 Ind. 126. 
206 Ch. 8] 
THE LICENSING SYSTEM. 
§ 164 
and file a remonstrance.256 As to the time of filing these objections, 
under a statutory provision that the petition for license shall lie over 
for a month "for consideration and the reception of counter-peti- 
tions," it is held that a counter-petition may be presented after the 
month, if before the license has actually been granted.257 As a rule, 
the remonstrance should be directed to the application of some par- 
ticular person. But where it requests that the license shall not be 
granted to either of two named persons, nor to any other, it is con- 
sidered to be both general and particular, and it should not be rejected 
on the mere ground of its generality in one aspect.258 And in Indiana, 
under an early statute which provided that no license should be 
granted if a majority of the freeholders should remonstrate against 
it, it was held that a general remonstrance against granting license 
to any person was within the spirit of the statute, and the commis- 
sioners, on receiving it, should refuse all licenses.259 But this is a 
method of establishing local option by indirection, and probably 
would not now be countenanced. The grounds of remonstrance are 
the statutory disqualification of the applicant, the insufficiency of 
the petition or notice, or any other matters which may lawfully in- 
fluence the discretion of the authorities in considering the applica- 
tion. Its allegations should be specific. For example, a remon- 
strance on the ground of the applicant's immorality, or of his unfit- 
ness otherwise to be intrusted with the privilege, should set forth the 
particulars of such immorality or unfitness with such reasonable cer- 
tainty as wil 1 advise him of the nature of the charge against him.260 
Further than this the courts do not appear to have much considered 
the formal requisites of the remonstrance, and probably it should not 
be judged by the most strict and technical rules. Under the laws of 
Pennsylvania, a remonstrance must be verified by an affidavit, other- 
wise it will not be considered.261 
256 Miller v. Wade, 58 Ind. 91. 
257 Rogers v. Hahn, 63 Miss. 578. 
258 Collins v. Barrier, 64 Miss. 21, 8 
South. Rep. 164. 
259 Woods v. Pratt, 5 Blackf. 377. 
260 Grummon v. Holmes, 76 Ind. 585. 
261 In re Palmer's License, 3 Pa. Co. 
Ct. Rep. 314. 
207 § 16G 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
§ 165. Right to Contest Application. 
As a rule, any one who desires to resist the granting of a license 
must follow the course prescribed by the statute; he must file a proper 
remonstrance before the proper authorities, and take the other 
required steps, else he cannot be heard; and an unnamed party can- 
not be permitted to appear by attorney and resist the application.262 
In Iowa, any citizen may appear and show cause why the permit 
should not be granted, and may maintain certiorari, whether he has 
any property or interests to be affected or not.263 It is also held, in 
Indiana, that where the board of licensing commissioners has volun- 
tarily appeared in the circuit court, on appeal, and contested the 
application, such board, though ordinarily not a proper party on such 
appeal, will not be heard to move for its dismissal on that ground 
in the supreme court.264 
§ 166. Appointing Day for Hearing. 
Where, as by the Nebraska statute, it is required that, on remon- 
strance against the issuing of a liquor license, a day for a hearing 
shall be appointed, the licensing board is bound to grant a hearing 
and to fix a day for the same in the future. The statute is man- 
datory, and refusal to follow its provisions will be remedied by man- 
damus. And a license issued without appointing a time for hearing 
a remonstrance filed, and investigating the same, will be cancelled.265 
The board must also grant to the remonstrants a reasonable time to 
produce their testimony.266 And in one case, where the board, at ten 
o'clock at night, appointed nine o'clock the next morning as the hour 
for the hearing, it was held that this was unreasonable, and amounted 
to a substantial denial of a hearing to the remonstrants.267 Further, 
■262 parte Miller, 98 Ind. 451. 
263 Darling v. Boesch, 67 Iowa, 702, 25 
N. W. Rep. 887. 
264 Murphy v. Monroe Co. Comm'rs, 
73 Ind. 483. 
266 State v. Reynolds, 18 Nebr. 431, 25 
N. W. Rep. 610; State v. Hanlan, 24 
Nebr. 608, 39 N. W. Rep. 780; Vander- 
lip v. Derby, 19 Nebr. 165, 26 N. W. 
Rep. 707. 
266 Clark v. State, 24 Nebr. 263, 38 N. 
W. Rep. 752. 
"7 State v. Weber, 20 Nebr. 467, 30 N. 
W. Rep. 531. 
208 Ch. 8] 
THE LICENSING SYSTEM. 
§ 168 
if the licensing board refuses to receive testimony in support of the 
remonstrance, the district court will remand the cause, in order that 
such testimony may be taken, and a decision rendered thereon.268 
§ 167. Procedure on Hearing Application. 
Whatever provisions of the law are applicable to the proceedings 
on an application for a liquor license must be duly observed, and 
with more especial strictness where the power and duty to grant such 
licenses is vested in a court. If, as is the case in some states, the 
hearing on such, applications is required to be had at certain terms 
of the court, a hearing at any other time, or out of court, will not 
justify the grant of a license.269 If a remonstrance against the grant- 
ing of the license has been filed, it is the duty of the court or licens- 
ing board to afford the parties a full opportunity to be heard. They 
cannot proceed to issue the license without investigating the charges 
preferred by the remonstrants. And if they refuse to hear testi- 
mony, and at once take decisive action in the matter, mandamus will 
lie to compel them to receive and consider the evidence offered.270 
§ 168. Evidence on Application. 
We have already seen that the burden is on the applicant for 
license to prove, by a preponderance of evidence, that he is not dis- 
qualified for the privilege he seeks by immorality, non-residence, or 
other unfitness.271 It is also held that when the petitioner's moral 
character is in issue, the court may require him to appear before them 
in person, and, on bis failing to appear except by attorney, may dis- 
miss his application.272 It is also proper to hear evidence of mat- 
ters which would render the grant of the particular license inex- 
pedient. Thus, where the applicant is required to state the precise 
location of the premises, evidence showing the proximity of a school 
268 Steinkraug v. Hurlbert, 20 Nebr. 
519, 30 N. W. Rep. 940. 
269 State v. Kennedy, 1 Ala. 31. 
270Steinkraug v. Hurlbert, 20 Nebr. 
519, 30 N. W. Rep. 940; State v. Mat- 
thews, 51 N. J. Law, 253, 17 Atl. Rep. 
154; Duflord v. Nolan, 46 N. J. Law, 87. 
271 Supra, § 162. 
272 In re Wheelin, 134 Pa. St. 554, 19 
Atl. Rep. 755. 
INTOX.LIQ.-14 
209 § 169 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
or college is admissible.273 Objections may also be taken to the reg- 
ularity or sufficiency of the prior proceedings. But such objections, 
unless apparent on the face of the record, must be supported by 
affirmative evidence on the part of those contesting the application. 
For instance, the allegations of a remonstrance, that certain signa- 
tures to the petition were unduly obtained, are not evidence of that 
fact.274 Yet the truth of an averment in a pleading of the appli- 
cant that he was recommended by five respectable freeholders in 
his immediate vicinity, is not admitted by a demurrer thereto, not 
being well pleaded.275 We must, however, be careful to distinguish 
between preliminary matters which are essential to the jurisdiction 
and such as are not. To illustrate this principle,-the statute in 
New Jersey makes it essential to the jurisdiction of the court that 
twelve reputable freeholders shall certify to the applicant's reputa- 
tation for honesty and temperance, and his possession of the accom- 
modations required by the act. But the jurisdiction is not depend- 
ent upon the truth of this certificate. And hence, on the hearing of 
the application, it is not error to exclude evidence to show that the 
certifying freeholders had no sufficient knowledge of the facts.276 
§ 169. Disqualification of Judges. 
Where a member of the licensing board signs a petition for a 
license to sell intoxicating liquors, as a resident freeholder of the 
ward in which the license is to be granted, such member will be 
thereby disqualified from voting on the question of granting or refus- 
ing the license, and if, without his vote, the board is equally divided, 
no valid license can issue.277 It is said, however, that a member of 
a board of supervisors who canvasses for or signs a petition for an 
election under the local option law, is not thereby disqualified from 
acting on such petition in his official capacity, in pursuance of the 
273 Eslinger v. East, 100 Ind. 434. 
^Inre McCullough, 51 Ark. 159, 10 
S. W. Rep. 259. 
278 Devin v. Belt, 70 Md. 352, 17 Atl. 
Rep. 375. 
276 State v. Hill. 52 N. J. Law. 326, Id 
Atl. Rep. 789. 
277 Foster v. Frost, 25 Nebr. 731, 41 N. 
W. Rep. 647; State v. Koso, 25 Nebr. 607, 
41 N. W. Rep. 558. 
210 Ch. 8] 
THE LICENSING SYSTEM. 
§ 170 
terms of the law; the interest which disqualifies a judge is pecuniary, 
not political.278 
§ 170. Discretion in Granting or Refusing License. 
The rule obtains in a few of the states that if a person who desires 
a liquor license brings himself within the terms of the law, by com- 
plying with all the statutory preliminaries, and possessing the requi- 
site moral and other qualifications, he is entitled as a matter of law 
to be licensed, and the license cannot be withheld from him.279 But 
in far the greater number of states, the doctrine is now well settled 
that the court or board charged with the duty of issuing licenses is 
invested with a sound judicial discretion, to be exercised in view of 
all the facts and circumstances of each particular case, as to grant- 
ing or refusing the license applied for.280 The principle is, that the 
licensing authorities act judicially, and not merely in a ministerial 
capacity.281 In determining the nature, as well as the existence, of 
this discretion, much will depend upon the language of the local 
statute, and this, of course, should be carefully scrutinized. But 
the general disposition, under all the diverse forms of statutory pro- 
visions, is to leave a wide margin of discretion to the court or board 
hearing the application. This disposition is manifested, in some 
states, in the construction placed upon the provision that the authori- 
ties "may grant" licenses to certain persons. This, it is held, clearly 
278 Lemon v. Peyton, 64 Miss. 161, 8 
South. Rep. 235. 
279 Miller v. Wade, 58 Ind. 91; Zanone 
v. Mound City, 11 Ill. App. 334; State v. 
Justices of Inferior Court, 15 Ga. 408; 
McLeod v. Scott, (Oreg.) 26 Pac. Rep. 
1061. 
280 Batters v. Dunning, 49 Conn. 479; 
Ex parte Persons, 1 Hill, (N. Y.) 655; In 
re Petition of Conway, (Pa. Sup.) 1 Atl. 
Rep. 727; Toole's Appeal, 90 Pa. St. 
376; Leister's Appeal, (Pa. Sup.) 11 Atl. 
Rep. 387; French v. Noel, 22 Gratt. 454; 
Ailstock v. Page, 77 Va. 386; Ex parte 
Yeager, 11 Gratt. 655; Hein v. Smith, 13 
W. Va. 358; Attorney-General v. Jus- 
tices of Guilford, 5 Ired. 315; Muller v. 
Buncombe Co. Comm'rs, 89 N. Car. 171; 
Nepp v. Comm., 2 Duval, 546; Pierce v. 
Comm., 10 Bush, 6; Ex parte Whitting- 
ton, 34 Ark. 394; Ex parte Levy, 43 
Ark. 42,51 Am. Rep. 550; State v. Board 
of Comm'rs, 45 Ind. 501; State v. Holt 
County Court, 39 Mo. 521; State v. Cass 
Co. Comm'rs, 12 Nebr. 54, 10 N. W. 
Rep. 571; Perry v. Salt Lake City, 
(Utah,) 25 Pac. Rep. 739; United States 
v. Comm'rs of D. C., 6 Mackey, 409. 
281 State v. Board of Comm'rs, 45 Ind. 
501. 
211 § 170 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
invests them with discretion in the matter.282 "The authorities are 
uniformly to the effect that the word ['may'] is only to be construed 
as mandatory for the purpose of sustaining or enforcing a right, but 
never to create one." 283 Indeed, some of the cases go even much 
further than this. Under the North Carolina code, providing that 
the commissioners "shall grant" a license "to all properly qualified 
applicants," it is held that they may consider whether the demands 
of the public require an increase of such accommodations, and 
whether the place where it is proposed to establish a retail shop is a 
suitable one, and that, in the exercise of a sound discretion, they 
may refuse a license even to an applicant properly qualified.284 On 
the same principle, it is ruled that where authority is given to license 
suitable persons "upon the recommendation of the selectmen of the 
town," it is not obligatory to license all persons so recommended.285 
So where the petition for license is required to be signed by a majority 
of the voters of the town, the fact that it is so signed does not compel 
the authorities to grant the license, but they may still, in their dis- 
cretion, refuse it in any instance.286 And although a majority of the 
voters in a district, at a local option election, have voted "for license," 
this does not mean that the court must act favorably upon all appli- 
cations for license.287 
In Pennsylvania-where this question has received more frequent 
and careful attention than in any other state-it is considered that 
the relative weight of the petition for license and of the remon- 
strances against it, as evidenced by the number and character of the 
names signed to each, is a proper matter to influence the decision of 
the court. In a case where but fourteen people signed the petition, 
and more than two hundred signed a remonstrance against it, and 
the applicant had been refused a license the year before for a viola- 
tion of the liquor laws, it was held proper to refuse a license.288 
And although the fact that the number of remonstrants exceeds the 
282 Ai Is tock v. Page, 77 Va. 386. 
283State v. Holt County Court, 39 Mo. 
521. 
^Muller v. Buncombe Co. Comm'rs, 
89 N. Car. 171. 
285 Batters v. Dunning, 49 Conn. 479. 
286 Perkins v. Ledbett ;r, (Miss.) 8 
South. Rep. 507. 
287 Ex parte Whittington, 34 Ark. 394. 
^Leister's Appeal, (Pa. Sup.) 11 Atl. 
Rep. 387. 
212 Ch. 8] 
THE LICENSING SYSTEM. 
§ 170 
number of petitioners is not per se conclusive on the court that the 
license is not a matter of public necessity, yet its decision against 
granting the license, based on such remonstrances, is a proper exer- 
cise of its discretion.289 And after refusing the license, the court 
will not be required by mandamus to pass on the question of public 
necessity, on the ground that its refusal was based wholly on public 
sentiment, as evidenced by the comparative number of petitioners 
and remonstrants.290 Under the laws of that state, the court is to 
consider w'hether the license sought is "necessary for the accommo- 
dation of the public and entertainment of strangers and travelers." 
And hence it is held that, even though no objection or remonstrance 
whatever be presented, still the issue of the license is not a matter of 
right, but rests in the judicial discretion of the court.291 
The discretion of the licensing authorities, however, is exercised 
once for all, and the decision cannot be recalled when once finally 
given. For example, where a formal license was issued to the peti- 
289 In re Sparrow, 138 Pa. St. 116, 20 
Atl. Rep. 711. 
299 In re King, 23 W. N. C. 152, 16 Atl. 
Rep..487. 
^Zn re Raudenbusch, 120 Pa. St. 328, 
14 Atl. Rep. 148. In this case the court 
observed: "The petitioner begs the 
whole case when he assumes that he 
has a right to a license because he is a 
respectable man, has always kept a re- 
spectable house, and that no remon- 
strances have been filed against him. 
It is an error to suppose that the sole 
duty of the court is confined to the in- 
quiry whether the applicant is a citizen 
of the United States and a man of good 
moral character. Back of all this lies 
the question whether the petitioner's 
house is ' necessary for the accommoda- 
tion of the public and entertainment of 
strangers and travelers,' and the plain 
duty of the court of quarter sessions, 
under the act of assembly, is to so exer- 
cise its discretion as to 'restrain' rather 
than increase the sale of liquor. . . . 
It may thus happen that licenses are re- 
fused to persons against whom there is 
no possible objection on personal 
grounds. Thus, if a ward has one hun- 
dred public houses, where only fifty are 
required by the public wants, it is plain 
that fifty houses must be denied li- 
censes, although every one of the ap- 
plicants is a worthy man, and keeps a 
respectable house, and though there be 
neither remonstrances nor objection on 
the score of want of fitness. The de- 
nial of a license, under such circum- 
stances, may seem arbitrary. The 
trouble is, there are more persons who 
want to sell liquor than the legislature 
consider it for the public good to license 
for that purpose. " 
It is important here to observe that 
the decisions in In re Pollard, 127 Pa. 
St. 507, 17 Atl. Rep. 1087, and In re 
Prospect Brewing Co., 127 Pa. St. 523, 
17 Atl. Rep. 1090,-that the discretion 
of the trial court is limited to an inquiry 
into the three qualifications mentioned 
in the act, and where no objection on 
either of those grounds appears, the 
court must grant the license,-were 
governed by local statutes in force in 
213 § 171 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
tioner, but, through the omission of the authorities to take certain 
steps required by the general license law, the license was invalid, 
and subsequently the required steps were taken, whereupon the party 
applied for a new license on the credit of his former payment of the 
fee, and for the unexpired term for which he bad paid, it was held 
that he was of right entitled to it.292 
§ 171. Nature of This Discretion. 
The discretion to be exercised in granting or refusing licenses is a 
sound judicial discretion, to be determined, in its exercise, by the 
facts and circumstances of each case. It is not the arbitrary will of 
the judge; it must rest on reasons. It would be improper to grant 
a license to any applicant without investigating his qualifications. 
And it would be equally improper to refuse a license to any applicant 
from mere prejudice or caprice, or without any reason whatever.293 
The limits of the discretion are marked out by the law, and to exceed 
them, on one side or the other, is an abuse of power. If the licens- 
ing authorities are not bound to grant a license to every one who 
proves himself of good moral character, neither, on the other hand, 
have they the arbitrary power to refuse, at their will, all applicants 
for license.294 The true doctrine on this point is stated by the 
supreme court of Pennsylvania, in saying that the discretion is a 
sound legal discretion, resting on the circumstances of each case, and 
not on a general opinion as to the propriety or impropriety of grant- 
ing licenses. Whether licenses should be granted at all or not, is for 
the determination of the legislature, not for the courts. And there- 
fore the court should neither grant a license to any one who brings 
himself within the law, without regard to other circumstances of fit- 
ness, nor determine to refuse all applications. But it is its duty to 
Allegheny county and Philadelphia re- 
spectively. And it is well settled doc- 
trine that, in localities not governed by 
special statutes, the court may refuse a 
wholesale liquor license to a distiller 
when, in its judgment, it would be in 
jurious to the public welfare. Comm. 
V. Wilson, 25 W. N. C. 148,18 Atl. Rep. 
601. 
292State v. Cornwell, 12 Nebr. 470, 11 
N. W. Rep. 729. 
293 Ex parte Levy, 43 Ark. 42, 51 Am. 
Rep. 550. 
294 Attorney General v. Justices of 
Guilford, 5 Ired. 315. 
214 Ch. 8] 
THE LICENSING SYSTEM. 
§ 172 
hear and determine each case, to ascertain the fitness of the appli- 
cant, the necessity for his house for public accommodation, and that 
he has fully complied with the law.295 As was said in another case: 
"The law of the land has decided that licenses shall be granted to 
some extent, and has imposed the duty upon the court of ascertain- 
ing the instances in which the license shall be granted. In order to 
perform this duty properly, the act of assembly has provided means 
by which the conscience of the court may be informed as to the facts. 
It may hear petitions, remonstrances, or witnesses; and we have no 
doubt the court may in some instances act of its own knowledge. 
The mere appearance of an applicant for license, when he comes to 
the bar of the court, may be sufficient to satisfy the judge that be is 
not a fit person to keep a public house. The judge is not bound to 
grant a license to a man whom he knows to be drunkard or a thief, 
or has actual knowledge that his house is not necessary for the pub- 
lic accommodation. The object of evidence in such cases is to 
inform the conscience of the court, so that it can act intelligently and 
justly in the performance of a public duty. While the act of decid- 
ing in such cases is, perhaps, quasi judicial, the difference between 
the granting or withholding of a license and the decision of a ques- 
tion between parties to a private litigation is manifest."296 
§ 172. Mandamus to Compel Issuing of License. 
The rule is well settled that where a court or board of officers is 
invested with a judicial discretion as to the grant or refusal of licenses, 
and where, in the exercise of such discretion, it has examined and 
rejected a particular application for license, mandamus will not lie to 
review the case and compel the grant of a license, unless it shall 
appear that such discretion has been abused or exercised in an arbi- 
trary and unlawful manner.297 But if a license has been refused to 
295 Schlaudecker v. Marshall, 72 Pa. 
St. 200. 
296 In re Raudenbusch, 120 Pa. St. 328, 
14 Atl. Rep. 148. 
297 Batters v. Dunning, 49 Conn. 479; 
In re Collarn, 134 Pa. St. 551, 19 Atl. 
Rep. 755; Schlaudecker v. Marshall, 72 
Pa. St. 200; In re Knarr, 127 Pa. St. 554, 
18 Atl. Rep. 639; Devin v. Belt, 70 Md. 
352, 17 Atl. Rep. 375; Jones v. Moore 
Co. Comm'rs, 106 N. Car. 436, 11 S. E. 
Rep. 514; Comm'rs of Maxton v. Com- 
215 § 172 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
a properly qualified person, without any reason whatever, or without 
any reason which is valid and sufficient in law, but in the arbitrary 
or capricious exercise of the power vested in the licensing authorities, 
then redress may be had by the process of mandamus.™ Thus, if the 
licensing authority based its refusal on disqualifications not author- 
ized by law to be considered, or on objections to the moral character 
of the applicant, when the applicant was a corporation and therefore 
could have no character, a peremptory mandamus will be granted to 
compel the issue of a license.299 So, in Missouri, this is the proper 
remedy to compel the issuing of a dram-shop license by the proper 
officer, when the only discretion of such officer in the matter is as to 
the sufficiency of the surety.300 In New York, it is provided by statute 
that the action of the excise commissioners may be reviewed by writ 
of mandamus, and that if the court shall decide, upon the hearing of 
the mandamus, that the license has been arbitrarily refused or rejected 
without good or valid reasons, the court may direct the issuance of 
the license.301 In Massachusetts, it is held that the mayor of a city 
is not obliged to sign a license to sell intoxicating liquors, or a com- 
mon victualler's license, granted by the board of aidermen, where the 
mayor is not satisfied that the petitioner for such license has com- 
plied with all the provisions of the law so as to entitle him to the 
license, and the mayor cannot be controlled by means of this writ.302 
Further, as premature applications to the courts are not favored, and 
writs of this character will not be granted until the necessity for their 
use arises, it is held that mandamus will not lie to compel municipal 
officers to issue a liquor license to an applicant whose existing license 
m'rs of Robeson, 107 N. Car. 335, 12 S. 
E. Rep. 92; Dunbar v. Frazer, 78 Ala. 
538; Ramagnano v. Crook. 85 Ala. 226, 
3 South. Rep. 845; Heblich v. Judge of 
Hancock Co. Ct., (Ky.) 10 S. W. Rep. 
465; Stanley v. Monnet, 34 Kans. 708, 9 
Pac. Rep. 755; State v. Bonnell, 119 
Ind. 494, 21 N. E. Rep. 1101; Crotty v. 
People, 3 Ill. App. 465; State v. Hud- 
son, 13 Mo. App. 61; State v. Pearse, 
(Nebr.) 48 N. W. Rep. 391; State v. Cass 
Co. Comm'rs, 12 Nebr. 54,10 N. W. Rep. 
571. 
298 Zan one v. Mound City, 103 Ill. 552; 
In re Sparrow, (Pa. Sup.) 20 Atl. Rep. 
692. 
299 In re Prospect Brewing Co., 127 
Pa. St. 52.3, 17 Atl. Rep. 1090. 
300 State v. Ruark, 34 Mo. App. 325; 
Bean v. County Court, 33 Mo. App. 
685. 
301 People v. Andrews, 54 N. Y. Super. 
Ct. 183. 
302 Deehan v. Johnson, 141 Mass. 23, 
6 N. E. Rep. 240. 
216 Ch. 8] 
THE LICENSING SYSTEM. 
§ 173 
has more than three months yet to run.303 Where, after an applica- 
tion for a writ of mandamus to compel a county court to issue a license 
to relator to keep a saloon, it appeared that indictments had been 
found against relator for selling liquor to minors and allowing gam- 
bling in his saloon, it was held that it would be an unwise exercise 
of the power of the court to issue the writ until the indictments were 
disposed of favorably to the relator.304 Where this remedy is open 
to a party, he must pursue it, and he is not justified in selling with- 
out a license because his application for a license was arbitrarily 
refused.305 
§ 173. Appeal from Order of Licensing Authority. 
In some of the states, the rule has obtained that the decision of 
the court or board empowered to grant licenses is final and conclu- 
sive, so that, if no error appears on the record, and it is not shown 
that there was an abuse of its discretion, no appeal can be taken 
from its determination.306 In Pennsylvania, it is said that an appeal 
from „the refusal of a court of quarter sessions to grant a license is 
a substitute for a certiorari, and brings up nothing but the record 
showing the petition and refusal, and, as the reasons for the refusal 
form no part thereof, the appeal will be dismissed.307 It seems that 
it might be otherwise if the reasons were set forth in the record. 
But still the discretion of the lower court would not be interfered with, 
unless manifestly abused. And if the record shows that the license 
was refused because the applicant did not possess the qualifications 
required by law, it will not be disturbed on appeal.308 But in sev- 
eral states, an appeal from the decision of the licensing authorities 
is provided by statute, or is recognized as proper under the general 
laws regulating the appellate jurisdiction of the courts.309 And where 
303 State v. Bonnell, 119 Ind. 494, 21 
N. E. Rep. 1101. 
304 State v. Weeks, 93 Mo. 499, 6 S. W. 
Rep. 266. 
305 Brock v. State, 65 Ga. 437. 
306 French v. Noel, 22 Gratt. 454; 
Toole's Appeal, 90 Pa. St. 376. 
307 In re Berg, (Pa. Sup.) 21 Atl. Rep. 
77; Leister's Appeal, (Pa. Sup.) 11 Atl. 
Rep. 387. 
303 In re Goldman, 138 Pa. St. 321, 22 
Atl. Rep. 23. 
309 Ex parte Dunn, 14 Ind. 122; State 
v. Board of Comm'rs, 45 Ind. 501; Gros- 
cap v. Rainier, 111 Ind. 361, 12 N. E. 
Rep. 694; Ex parte Lester, 77 Va. 663; 
217 § 173 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
an appeal is given to the unsuccessful applicant, it is also held that 
the persons who signed a remonstrance or counter-petition may, 
if the license is granted, appeal from the order.310 And where the 
remonstrants bring a writ of review, the county or other public cor- 
poration granting the license must be made a party.311 If the stat- 
ute which authorizes the taking of an appeal from a decision on an 
application for license omits to make special provision as to the man- 
ner in which the appeal shall be taken and perfected, it must conform, 
in these respects, to the provisions of the general law; as for instance, 
in regard to the bond required to be given.312 Where the licensing 
board grants a license against a remonstrance filed, and an appeal is 
taken, it must recall such license, if issued, until the appeal is decided 
by the court ad quem.*13 But if the action of the board is affirmed 
by that court, a mandamus will not issue to compel the cancellation 
of the license until an appeal to the supreme court is determined.314 
And a license issued after a reasonable time has elapsed to take an 
appeal from an order overruling a remonstrance to the granting 
thereof, but before such an appeal is actually taken, is valid, not- 
withstanding a notice of intention to appeal.316 As to the matters 
proper to be considered on the appeal, the law varies in the different 
states. In Virginia, an appeal from the county court, to which the 
application for license must first be made, to the circuit court, is con- 
sidered an application de novo to the latter court.316 In Nebraska, it is 
said that the appeal is not a proceeding in error, but requires a decis- 
ion on the merits.317 In Indiana, nothing can be tried on the appeal 
except what appears to have been in issue before the licensing board; 
and where both the board and the circuit court act upon a remonstrance, 
the applicant cannot for the first time successfully urge in the supreme 
Lester v. Price, 83 Va. 648, 3 S. E. Rep. 
529; Lydick v. Korner, 13 Nebr. 10, 12 
N. W Rep. 838. 
310 Collins v. Barrier, 64 Miss. 21, 8 
South. Rep. 164. Compare Drapert v. 
State, 14 Ind. 123. 
311 Wood v. Riddle, 14 Oreg. 254, 12 
Pac. Rep. 385. 
312 Blair v. Kilpatrick, 40 Ind. 312. 
313 State v. Bonsfield, 24 Nebr. 517,39 
N. W. Rep. 427. 
314State v. Barton, 27 Nebr. 476, 43 N. 
W. Rep. 249. 
315 Lydick v. Korner, 13 Nebr. 10, 12 
N. W. Rep. 838. 
316 Lester v. Price, 83 Va. 648, 3 S. E. 
Rep. 529. 
317 State v. Bonsfield, 24 Nebr. 517, 39 
N. W. Rep. 427. 
218 Ch. 8] 
THE LICENSING SYSTEM. 
§ 174 
court that no evidence was given of the legal qualification of the 
remonstrants.318 In Kentucky, if the evidence on appeal fails to show 
that there is a necessity for the grant of the license, or that travelers 
will be put to inconvenience by the refusal of it, the court of appeals 
will not determine that such refusal was an abuse of the discretion 
conferred by law upon the county court.319 
§ 174. Certiorari to Review Proceedings. 
The object of this writ is narrow and special. It is concerned 
with the determination of jurisdiction and with errors apparent on 
the record, and, as a rule, does not involve a re-examination of the 
evidence. Hence, when the proceedings of a licensing board or court 
are brought up on certiorari, its decisions on questions of fact are not 
to be reviewed, although errors of law committed by it may be 
remedied.320 Where the statute prohibits the granting of a license, 
when objected to by the owners of the adjoining property, any such 
land-owner has such an interest as entitles him to a writ of certiorari 
to determine whether the notice of the application for the license 
required by the statute was given, that being a jurisdictional pre- 
requisite.321 So also, remonstrants against granting licenses may 
present special facts affecting the jurisdiction of .the licensing author- 
ity, and if refused a hearing at a time and place within the discretion 
of such authority, such facts may be shown on certiorari to defeat 
licenses granted.322 As a rule, this writ cannot be brought where 
there was no objection or remonstrance against the grant of the 
particular license.323 But in Pennsylvania, under a local act for the 
licensing of wholesale dealers, where the county court has not tue 
same discretion as in the case of retailers, it is held that the proceed- 
ings of that court are reviewable by the supreme court on certiorari, 
even where there is no remonstrance filed or objection made.324 
318Groscap v. Rainier, 111 Ind. 361, 12 
N. E. Rep. 694. 
319Hoglan v. Comm., 3 Bush, 147. 
320 Jane v. Alley, 64 Miss. 446,1 South. 
Rep. 497. 
321 Dexter v. Town Council of Cum- 
berland, (R. I.) 21 Atl. Rep. 347. 
322 State v. Atlantic City, 48 N. J. Law, 
118, 3 Atl. Rep. 65. 
323 Lexington v. Sargent, 64 Miss. 621, 
1 South. Rep. 903. 
32* In re Pollard, 127 Pa. St. 507, 17 
Atl. Rep. 1087. 
219 § 176 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
§ 175. Restraining Grant of License. 
If the power to grant or refuse licenses is vested in a board of com- 
missioners, and the matter is placed exclusively within their juris- 
diction, their action in granting a license is quasi judicial, and if the 
grant would be improper, the remedy is by appeal, writ of error, or 
certiorari, according to the nature of the error complained of, but an 
injunction will not be granted to prevent the issuing of the license;325 
at least, if no abuse of authority or actual corruption is alleged.326 
And if, in any particular town or county, the granting of licenses is 
prohibited by law, so that a license issued there would be nugatory 
and void, no writ of prohibition is necessary to restrain the grant of 
such license.827 
§ 176. Criminal Responsibility of Licensing Board. 
If the persons authorized by law to grant licenses, being fully 
informed that they have a legal discretion in the matter, perversely 
abuse their discretion by obstinately resolving not to exercise it at 
all, or not to grant any licenses, or by exercising it in a way pur- 
posely to defeat the legislative intention, or to oppress an individual, 
such an intentional (and therefore corrupt) violation of duty and law 
must be answered for on indictment.828 And so, on the other hand, 
they may be indicted for granting licenses to persons not possessing 
the statutory qualifications, if they knew that fact, or should have 
ascertained it in the fulfillment of their duty, although they are not 
liable for an error of judgment. They are not judicial officers, and 
the general principle is, that when the common law or statute for- 
bids the doing of a thing, (as, granting a license to a person not quali- 
fied,) the doing of it wilfully is indictable, though the motive is not 
corrupt.329 On such an indictment, where there is evidence from 
826Northern Pac. R. Co. v. Whalen, 3 
Wash. Ter. 452, 17 Pac. Rep. 890. 
826 Leigh v. Westervelt, 2 Duer, 618. 
827 Beckham v. Howard, 83 Ga. 89, 9 
S. E. Rep. 784. 
828 Attorney General v. Justices of 
Guilford, 5 Ired. 315; State v. Kite, 81 
Mo. 97. 
329 People v. Norton, 7 Barb. 477. 
220 Ch. 8] 
THE LICENSING SYSTEM. 
§ 178 
which the jury might find that the defendants had entirely failed in 
their official duty to ascertain the licensee's disability, and the want 
of the required accommodations for travelers in his house, before 
issuing the license, the evidence is sufficient to sustain a convic- 
tion.330 
§ 177. Action for Refusal to Issue License. 
An application for a license to sell intoxicating liquors is in the 
nature of a judicial proceeding, and therefore the board of commis- 
sioners are not personally liable in an action against them to recover 
damages alleged to have resulted from their action in such a proceed- 
ing.331 It seems, however, that an action might lie against persons 
who maliciously opposed or obstructed a party's application for such 
a license. But in a case in Nebraska, where the complaint alleged 
that the city council ordered the city clerk to issue a license to the 
plaintiffs upon the payment of the license fee, which they took with 
them and tendered to the city treasurer, and demanded of the city 
clerk to issue and deliver to them the license, which demand the clerk, 
being instigated by the defendants, wrongfully refused, it was held 
that the complaint did not state a cause of action, because tender of 
the fee, without actual payment, was not enough to entitle them to 
the license.332 
§ 178. License not Collaterally Impeachable. 
If it is desired to contest the validity or regularity of the action of 
the authorities in granting or refusing a license, it must be done in 
one of the modes we have already discussed, that is, by appeal, man- 
damus, certiorari, or some other appropriate proceeding. The legality 
or propriety of their action cannot be inquired into in any collateral 
action.333 Notwithstanding the anterior proceedings may have been 
irregular, a license actually granted will protect the holder.334 
330 People v. Worsley, (Sup.) 1 N. Y. 
Supp. 748, 17 N. Y. St. Rep. 610. See 
People v. Jones, 54 Barb. 311. 
331 Halloran v. McCullough, 68 Ind. 
179. 
332 Claus v. Hardy, (Nebr.) 47 N. W. 
Rep. 418. 
333 Goff v. Fowler. 3 Pick. 300; City 
Council v. Hollenback, 3 Strobh. 355; 
Hornaday v. State, 43 Ind. 306. 
334 Goff v. Fowler, 3 Pick. 300. 
221 § 181 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
Part VIL License Fees. 
§ 179. License Fees not Taxation. 
As we have already had occasion to observe, the exaction of a fee 
for the privilege of a license to sell liquors is essentially distinguish- 
able from the imposition of a tax upon the business. Under a con- 
stitutional prohibition against the licensing of the liquor traffic, the 
legislature still has power to impose taxes upon it.336 And conversely, 
a fee received for a license for the sale of liquor, granted by the state 
or a municipal corporation, is not a tax, within the meaning of the 
constitutional provision requring equality and uniformity in tax- 
ation.336 
§ 180. Fixing Amount of Fees. 
The system of classification by population, for the purpose of fix- 
ing the minimum license fee in the several townships and cities, is a 
valid classification, and imparts to the law the quality of general 
legislation.337 And where, as in Wisconsin, the statute fixes the 
license fees according to population, and provides that "the popula- 
tion of any city or village shall be ascertained by the last preceding 
enumeration by the state or general government," it is held that the 
method of ascertaining population thus pointed out is exclusive of 
any other, and it cannot be proved by parol or by application for a 
new census.338 
§ 181. Reasonableness of Amount. 
If the state, in the exercise of its police power, may entirely pro- 
hibit the sale of intoxicating liquors, which is now conceded, it must 
follow that, in determining to license the traffic, it may fix the fee to 
be charged at such a figure as will best conduce to promote the ends 
335 Supra, § 108. 
336 Lovingston v. Board of Trustees, 
99 Ill. 564. 
337 State v. Circuit Court, 50 N. J. 
Law, 585, 15 Atl. Rep. 272. 
338 State v. Keaough, 68 Wis. 135, 31 
N. W. Rep. 723. See Comm. v. Smoul- 
ter, 126 Pa. St. 137, 17 Atl. Rep. 532; 
Comm. v. Miller, 126 Pa. St. 137,17 Atl. 
Rep. 623; Foster v. Burt, 76 Ala. 229. 
222 Ch. 8] 
THE LICENSING SYSTEM. 
§ 181 
which such regulative laws have in view. Revenue is not the chief 
object of license laws; it is not even their primary purpose. The 
principal aim of such statutes is to restrict the number of persons 
engaging in the liquor traffic, to regulate the conduct of their busi- 
ness, and, by such restriction and regulation, to promote the welfare 
and the moral health of society. They are therefore enacted in the 
exercise of the police power. And if the required fee for a license is 
made so high as to be practically prohibitive, it cannot be said to be 
beyond the power of a law-making body which might have prohibited 
the trade directly. On an even stronger reason, this is true of a law 
or ordinance fixing the license fees at a rate calculated to be restrict- 
ive, or only partially prohibitive. No question as to the adequacy or 
excessiveness of the amount charged can properly be propounded to 
the courts.339 The reasons for this doctrine are more fully stated by 
an eminent writer, as follows: "The business [of manufacturing and 
selling liquor] is one that affects the public interest in many ways, 
and leads to many disorders. It has a tendency to increase pauper- 
ism and crime. It renders a large force of peace officers essential, 
and it adds to the expenses of the courts, and of nearly all branches 
of civil administration. It cannot be questioned, therefore, if it is to 
be licensed by the public authorities, that it is legitimate and proper 
to take into the account all the probable consequences, or that the 
payment to be exacted should be sufficient to cover all the incidental 
expenses to which the public are likely to be put by means of the 
business being carried on. And all reasonable intendments must 
favor the fairness and justice of a fee thus fixed; it will not be held 
excessive unless it is manifestly something more than a fee or regu- 
lation." 340 The adjudged cases are also in harmony with the views 
here expressed. For example, in California, it is held that it will not 
be presumed, as a matter of law, that fifty dollars a month for retail 
liquor licenses is oppressive or unreasonable.341 
339 Dennehy v. City of Chicago, 120 
Ill. 627, 12 N. E. Rep. 227; Tenney v. 
Lenz, 16 Wis. 566; City of New Orleans 
v. Clark, 42 La. Ann. 9, 7 South. Rep. 
58. 
340 Cooley, Taxation, 599. 
341 In re Guerrero, 69 Cal. 88, 10 Pac. 
Rep. 261. 
223 § 182 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
§ 182. Ordinances Increasing Amount of Fee. 
Some question has been made of the power of a municipal cor- 
poration to increase the amount of the fee charged for licenses, in 
relation to licenses already in force, or applied for, at the time of 
the change. In a case in Missouri, where the city, before passing 
upon an application for license made by one who had complied with 
all the existing regulations, adopted an ordinance raising the price 
of licenses, and refused the license applied for without payment of 
the increased sum, it was held that it might be compelled to issue a 
license at the original price. But this was because the action of 
the city was in violation of an ordinance of its own, previously 
adopted, providing that no proceeding pending at the time of the 
repeal of any ordinance should be affected in any way by such 
repeal.342 On the other hand, the supreme court of Indiana holds 
that where a license to sell liquors in a city for a year, on payment 
of a certain sum, has been granted, the city, before the end of the 
year, can by ordinance raise the fee for the unexpired term. In 
the case in which this decision was made it is said: "It is con- 
tended that the municipal authorities had no power, under the stat- 
ute in question, to enact an ordinance increasing the amount of the 
license fee, and make it applicable to unexpired licenses, thereby 
practically annulling permits theretofore issued by the city. While 
conceding that a license is not an absolute contract in which the 
licensee obtains a vested right, during the full period for which it was 
granted, to sell upon the same terms as when the license was 
issued, it is contended that it is nevertheless, in some sense, a con- 
tract between the city and the licensee, under which the latter 
acquires an absolute right to sell liquors during the term, subject to 
municipal regulation, without being required to pay an enhanced 
price simply for the purpose of increasing the city revenue. More- 
over, it is contended that a license to retail intoxicating liquors is 
a thing of value, in the nature of property; and that even if the legis- 
lature had the power to amend existing licenses, or authorize it to 
224 
842 State v. Baker, 32 Mo. App. 98. Ch. 8] 
THE LICENSING SYSTEM. 
§ 182 
be done, good faith required that the money paid for the unearned 
portion be refunded. Finally, it is said the ordinance is invalid, as 
applied to cases like the present, within the principle which denies, 
in the absence of clearly expressed intent to the contrary, the power 
to give a law or ordinance a retrospective or retroactive operation." 
But the court did not deem it necessary to enter upon an elaborate 
discussion of the several propositions involved, observing that it was 
sufficient to say that principles as firmly settled as anything could 
be, upon the highest judicial authority, swept away every vestige of 
the foundation upon which the argument against the validity of the 
ordinance rested. "When it is conceded, as it is and must be, that 
a law regulating, or authorizing municipal corporations to regulate 
and impose restrictions upon, the sale of intoxicating liquors, is an 
exercise of the police power of the state, then it follows inevitably 
that neither the state nor the municipality can, by any sort of con- 
tract, license, or permit, abdicate, embarrass, or bargain away its 
right to exercise this power in such manner as it may thereafter 
deem the public welfare requires. It is the peculiar province of the 
state, either by legislative enactment or through authority delegated 
to municipalities, to exert its police power for the protection of the 
lives, health, and property of its citizens, as well as to maintain 
good order and preserve public morals. It is everywhere conceded 
that the traffic in intoxicating liquors affects all these subjects, and 
that it is hence a proper subject for police regulation. It is essen- 
tial, therefore, that the power to regulate should be a continuing 
one, ever present and available, to be exercised by the state as 
emergencies may require. Hence the rule that neither the state 
nor any of its agencies to whom the power has been delegated can 
divest itself of the right to impose such other or additional restric- 
tions upon the sale of intoxicating liquors as the maintenance of good 
order, or the preservation of the public morals, may seem to require. 
. . . If, by authorizing a license or permit for one year, the 
state could deprive itself of the right to impose new restrictions 
upon the licensee during that period, a law authorizing licenses might 
bind successive legislatures for three, five, or even ten years. If the 
legislative discretion could be fettered or bargained away for one 
INTOX.LIQ. 15 
225 § 183 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
year, it could, upon the same principle, be bargained away for an 
indefinite period. It is, however, abundantly settled that a license 
or permit issued in pursuance of a mere police regulation has none 
of the elements of a contract, and that it may be changed or entirely 
revoked, even though based upon a valuable consideration. A license 
issued under the law regulating the sale of intoxicating liquors has 
neither the qualities of a contract nor of property, but merely forms 
a part of the internal police system of the state. No one can acquire 
a vested right in a mere statutory privilege so as to bind the state, 
or prevent a change of policy as the varying interests of society may 
require. . . . The enactment of a law placing restrictions upon 
the sale of intoxicating liquors, and requiring the payment of a 
specified sum of money, and that a license be obtained, before the 
business of selling can lawfully be entered upon, is not to be regarded 
as a proposition on the part of the state to contract for privileges 
or to sell indulgences, but rather as a public proclamation announc- 
ing that the state regards the unrestricted sale of intoxicating liq- 
uors as prejudicial to the general welfare, and that in the exercise 
of its police power the traffic has been placed under regulation and 
restraint. Those who engage in the traffic after the enactment of 
such a law, must be regarded as having notice from the beginning 
that the power of regulation is a continuing one, and that the state 
reserves to itself the right to deal with the subject as the special 
exigencies of the moment may require. They are bound to know 
that the license or permit has no force or vitality except as it derives 
it from the law under which it was issued, and that, if the public 
good requires that the law be modified or repealed, no incidental 
inconvenience which they may suffer can stay the hand of the state. 
No one can acquire a vested right in the law."343 
§ 183. Payment in Advance Required. 
As a rule, the license laws direct that the fee required shall be 
paid to the proper officer before the license shall be issued, or before 
the party can lawfully commence business. Under such a provision, 
343 Moore v. Indianapolis, 120 Ind. 483, 22 N. E. Eep. 424. 
226 Ch. 8] 
THE LICENSING SYSTEM. 
§ 184 
no valid license can be issued unless the amount of the fee be paid 
in advance for the entire period covered by the license.344 The law 
is peremptory, and no discretion is left to the officer to waive or 
modify its terms.345 Further, the whole amount must be paid. The 
payment of a less sum for a license than that required by law is not 
to be regarded as good pro tanto; it does not authorize any license 
to be issued; and if any license is issued on such part payment, it 
is a nullity.346 Still it has been held that if, in violation of their own 
ordinance prescribing that a certain fee shall be paid before a license 
shall issue, the mayor and council of a town permit one who has 
paid only a portion of the required fee to do business, they cannot 
subject to the payment of the balance the stock in trade of the delin- 
quent in the hands of an innocent purchaser.347 
§ 184. License Fee Payable in Money. 
It is a general and well settled rule that in all cases where it is 
not otherwise provided by statute, taxes, assessments, and fees in the 
nature of taxes are payable in cash, and the officer charged with their 
collection has no authority to receive anything in payment but legal 
tender money or such money as passes current at the time.348 This 
rule is applied to the collection of fees for liquor licenses. It is held 
that if a liquor-dealer offers his promissory note in payment of the 
fee, the collecting officer has no power to receive it; and if he does 
receive it, the note is void as in violation of public policy, and the 
officer is personally liable to the state or municipality for the 
amount.349 There are two states, however, in which this rule does not 
appear to be recognized. In Georgia and Alabama, it is held that 
while the taking of a note in such cases is not regular, yet the note, 
if accepted by the officer, may be collected by suit against the 
344 Handy v. People, 29 Ill. App. 99. 
346 McWilliams v. Phillips, 51 Miss. 
196. 
343 Spake v. People, 89 Ill. 617. 
347 Wicker v. Siesel, 80 Ga. 724, 6 S. 
E. Rep. 817. 
348 See McLanahan v. Syracuse, 18 
Hun, 259; Staley v. Columbus, 36 Mich. 
38; Richards v. Stogsdell, 21 Ind. 74; 
Dickson v. Gamble, 16 Fla. 687; Black, 
Tax-Titles, § 50; Cooley, Taxation, 452. 
349 Doran v. Phillips, 47 Mich. 228, 10 
N. W. Rep. 350; McWilliams v. Phil- 
lips, 51 Miss. 196; City of Craig v. 
Smith, 31 Mo. App. 286. 
227 § 185 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
maker.360 As to the receivability of state or municipal obligations in 
satisfaction of these dues, the question will depend upon whether the 
terms of the law authorizing the tender of such obligations in pay- 
ment of public charges are broad enough to include license fees. 
For example, where the law creating the office of police commis- 
sioners provides that their certificates of indebtedness shall be receiv- 
able in payment of all city taxes, a tender of such certificates in pay- 
ment of the fee for a liquor license is not a sufficient tender; fora 
license fee is not a tax.351 
§ 185. Collection of License Fees. 
It may be stated as a general rule that taxes, and charges in the 
nature of taxes, are not debts in the ordinary acceptation of that 
term, and hence, a common law action of debt will not lie for their 
recovery. The methods of collection are those only which are author- 
ized by the statute, and if the statute does not give a remedy by pro- 
cess of civil action, such action cannot be sustained, except possibly 
in the case of a law providing no means of collection whatever.352 
Applying this principle to the case in hand, we find the authorities 
holding that one who carries on the liquor business without having 
paid for the necessary license does not thereby become indebted to 
the state or municipality for the amount of the fee in such sense that 
it can be recovered by suit against him.353 Thus, a statute which 
fixes the liability for selling liquor without license, provides a punish- 
ment therefor, and authorizes the sheriff to assess and collect the 
tax, provides an exclusive remedy, and the state cannot sue for the 
collection of back taxes from persons who have sold without license.354 
350 Appling Co. v. McWilliams, 69 Ga. 
840; Powers v. Mayor of Decatur, 54 
Ala. 214. 
361 East St. Louis v. Webrung, 46 Ill. 
892. 
362 Black, Tax-Titles, § 45; Cooley, 
Taxation, 15-18. 
353 City of Chicago v. Enright. 27 Ill. 
App. 559; State v. Adler, (Miss. ) 9 South. 
Rep. 645. 
364 State v. Piazza, 66 Miss. 426, 6 
South. Rep. 316. A later law in this 
state provides for a revenue agent, 
whose duty it is to collect delinquent 
revenues of the state. But held, that 
he is not authorized to proceed against 
one violating the license law until the 
sheriff, knowing of the violation, neg- 
lects or refuses to collect the tax. State 
v. Thibedeaux, (Miss.) 10 South. Rep. 
58. 
228 Ch. 8] 
THE LICENSING SYSTEM. 
§ 186 
In some states, however, the statutes on this subject are so framed 
as to authorize, either directly or by necessary implication, the col- 
lection of unpaid license fees by ordinary suit or action.355 In Mis- 
sissippi, under a provision of the code that courts of chancery shall 
ha\e jurisdiction of suits to restrain the collection of taxes, levied or 
attempted to be collected without authority of law, such a court has 
jurisdiction of a suit by a saloon-keeper to restrain the collection of 
the license tax on his business, for the privilege of retailing, imposed 
by the statute in that behalf.356 In Kentucky, where the law provides 
that licenses shall be granted by the county court, it is held that the 
county clerk, and not the county judge, is the proper person to collect 
and receive commissions on fees.357 
§ 186. Disposition of License Moneys. 
The money received for license fees will be disposed of according 
to the local statute,-to the various municipal corporations, to pub- 
lic institutions, to the school districts, to the poor fund, or otherwise 
according as the statute may direct. It is said that mandamus will lie 
to compel a county treasurer to pay over to the proper local officers the 
amount of liquor taxes to which they are entitled by the law.358 But 
where money due to a township for liquor license is paid, by mistake 
of the county treasurer, to a village in the township, the amount 
thus paid may be deducted by him from moneys due the village, 
for licenses, subsequently accruing to it.359 In New Jersey, it is 
held that when the license granted is to be exercised and enjoyed 
in a locality which is included in a town, and is also included in a 
township, the two municipalities being co-existent over the territory 
included in the town, the fee is required to be paid to the person hav- 
ing the legal custody of the funds of the township, and not to the 
town.360 In Nebraska, it is held that the authorities are not empow- 
355 Hall v. Bastrop, 11 La. Ann. 603; 
Ex parte Benjamin, 65 Cal. 310, 4 Pac. 
Rep. 23. 
356 Portwood v. Baskett, 64 Miss. 213, 
1 South. Rep. 105. 
367 Severance v. Kelly, 86 Ky. 522, 6 
S. W. Rep. 386. 
858 East Saginaw v. Saginaw Co. 
Treas'r, 44 Mich. 273, 6 N. W. Rep. 684. 
359 Village of Grosse Point v. Wayne 
Co. Treas'r, (Mich.) 48 N. W. Rep. 153. 
360 State v. Slack, 52 N. J. Law, 113,18 
Atl. Rep. C8L 
229 § 187 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
ered to dispose of money paid into the treasury as a fee for obtaining 
a license, until the license for which it has been paid has been issued; 
until that time, the money is the property of the applicant, and sub- 
ject only to his disposal.361 But in some other states, the rule obtains 
that the payment is a condition precedent, not a deposit, and goes at 
once into the general fund of the municipality.362 
§ 187. Recovery of Excessive or Illegal Fee Paid. 
Where a person, applying for a license to sell liquor, voluntarily 
pays the whole amount demanded of him, although the charge is 
illegal, or the amount demanded, in consequence of a misapprehen- 
sion of the law, or of the invalidity of a particular statute or ordi- 
nance, is in excess of the sum which might lawfully be exacted under 
the law of the state or the charter of the municipality, he cannot 
recover back the amount paid or the illegal excess.363 "The prin- 
ciple," says Judge Cooley, "is an ancient one in the common law, 
and is of general application. Every man is supposed to know the 
law, and if he voluntarily makes a payment which the law would not 
compel him to make, he cannot afterwards assign his ignorance of 
the law as the reason why the state should furnish him with legal reme- 
dies to recover it back. Especially is this the case when the officer 
receiving the money, who is chargeable with no more knowledge of 
the law than the party making payment, is not put on his guard by 
any warning or protest, and the money is paid over to the use of the 
public in apparent acquiescence in the justice of the exaction."364 
In the state of Georgia, a ruling was once made that where a 
municipal corporation, without any authority of law, levied and col- 
lected a license fee for the sale of liquor, it was liable to refund the 
money so collected in an action brought by the party paying the 
861 State v. Mayor of Lincoln, 6 Nebr. 
12. 
862 Trainor v. Multnomah Co.. 2 Oreg. 
214. 
863 Emery v. Lowell, 127 Mass. 138; 
Thomson v. Norris, 62 Ga. 538; Tupelo 
v. Beard, 56 Miss. 532; Ligonier v. 
Ackerman, 46 Ind. 552,15 Am. Rep. 323; 
Sullivan v. McCammon, 51 Ind. 264; 
Edinburg v. Hackney, 54 Ind. 83; Bra- 
zil v. Kress, 55 Ind. 14; Kraft v. City of 
Keokuk, 14 Iowa, 86; Custin v. Viroqua, 
67 Wie. 314, 30 N. W. Rep. 515. 
364 Cooley, Taxation, 809. 
230 Ch. 8] 
THE LICENSING SYSTEM. 
S 187 
same.365 But afterwards the court declared that this decision would 
not be extended beyond the facts of the particular case; that is, it 
would be applied only in cases where the municipality, in assuming 
to license liquor-dealers, acts wholly without jurisdiction over the sub- 
ject-matter. And the general rule on the subject was stated in the 
following full and explicit terms: Where a municipal corporation has 
jurisdiction to grant such license, and a party voluntarily applies 
therefor and voluntarily pays the price of the license to the clerk of 
the council, without the issuing of execution or compulsory process 
of any kind, or any threat to do so, or to punish him in any way if 
he does not take out the license, and then sues to recover back a part 
of the money so voluntarily paid, viz., that part which is over and 
above the tax or license fee authorized by the charter of the corpora- 
tion before the passing of an unconstitutional ordinance or amend- 
ment to the charter, increasing the license tax to the amount he paid, 
the rule is, that such payment of the overplus made by the plaintiff 
voluntarily, and without any process or compulsory proceedings, can- 
not be recovered back from the corporation.366 
It will be apparent from the foregoing that the word "voluntarily," 
as used in the statement of this rule, is to be taken in a sense more 
restricted than its meaning in common speech. A payment may be 
made reluctantly, or even under some degree of pressure, and yet be 
voluntary in the contemplation of the law. The mere fact, for 
instance, that the business necessities of the plaintiff compelled him 
to pay the excessive license fee does not alter the voluntary character 
of the payment.367 The rule is that if the payment is made with- 
out protest, and not to procure the release of the plaintiff's person 
or property from arrest or seizure, and not compelled by the exhibi- 
tion of compulsory process or its actual or threatened enforcement, 
and without the use of any force, fraud, menaces, or intimidation on 
the part of the municipality or its officers or agents, then the pay- 
ment is considered as made voluntarily.368 And the declaration or 
365 Callaway v. Mayor of Milledgeville, 
48 Ga. 309. See, also, Douglasville v. 
Johns, 62 Ga. 423. 
366 Thomson v. Norris, 62 Ga. 538. 
367 Custin v. Viroqua, 67 Wis. 314, 30 
N. W. Rep. 515. 
368 Edinburg v. Hackney, 54 Ind. 83; 
231 § 188 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
complaint of the plaintiff, as well as his evidence, must show that 
the money was not paid voluntarily.369 In some states, it is held 
that if the payment is made under a formal protest, this will remove 
the objection that the party paid voluntarily, and will authorize him 
to recover.370 But it is doubtful whether this exception would be 
universally allowed, unless where the statute specifically provides for 
such protest and gives it the effect indicated.871 
§ 188. Refunding Money on Refusal or Cancellation of 
License. 
It is held that an action for money had and received will not lie to 
recover the fee paid to a county treasurer for a license, on his refusal 
to grant it. The payment is a condition precedent, not a deposit, 
and goes at once into the general county fund.872 So where the appli- 
cant pays for his license on taking it out, not being bound to do so 
until the expiration of the time for taking an appeal, and, on appeal, 
the license is refused, the county is not liable to refund any part of 
the money.373 On the same principle, where a remonstrance against 
a license was overruled by the city council, the amount paid, and the 
license issued, no appeal having been taken in a reasonable time, 
and subsequently the license was cancelled by the district court, it 
was held that the treasurer could not be compelled to refund the 
money.374 Nor can the license fee be recovered because an order 
prohibiting the sale of liquor in the territory covered by the license 
is made immediately after it was granted, on the application of a 
majority of the inhabitants.375 On an even stronger reason, a person 
who voluntarily pays the liquor tax, and afterwards abandons the 
business because he is unwilling or unable to furnish the required 
Brazil v. Kress, 55 Ind. 14; Thomson 
v. Norris, 62 Ga. 538. 
369 Sullivan v. McCammon, 51 Ind. 
264. 
370 Catoir v. Watterson, 38 Ohio St. 
319; Baker v. Cincinnati, 11 Ohio St. 
534. 
371 See Emery v. Lowell, 127 Mass. 
138; Cooley, Taxation, 813. 
^Trainor v. Multnomah Co., 2 Oreg. 
214. Compare State v. Mayor of Lin- 
coln, 6 Nebr. 12. 
373 Monroe Co. Comm'rs v. Kreuger, 88 
Ind. 231. 
874Lydick v. Korner, 15 Nebr. 500, 20 
N. W. Rep. 26. 
375Peyton v. Hot Spring Co., 53 Ark. 
236, 13 S. W. Rep. 764. 
232 Ch. 8] 
THE LICENSING SYSTEM. 
§ 189 
bond, cannot recover the amount of the tax so paid.876 But in Illinois, 
it is held that where a party receives a license from a city, and pays 
for it, the city cannot, by repudiating the act of the officer who issued 
the license, maintain an action against such party, without returning 
the money paid for the license.377 
Part VIII. Revocation of Licenses. 
§ 189. Power to Revoke Licenses. 
A license to sell liquor is neither a contract nor a right of property, 
within the legal and constitutional meaning of those terms. It is no 
more than a temporary permit to do that which would otherwise be 
unlawful, and forms a part of the internal police system of the state. 
Hence the authority which granted a license always retains the power 
to revoke it, either for due cause of forfeiture, or upon a change of 
policy and legislation in regard to the liquor traffic. And such 
revocation cannot be pronounced unconstitutional, either as an impair- 
ment of contract obligations, or as unlawfully divesting persons of 
their property or rights.378 On this principle, the revocation by a 
municipal corporation of a license to sell liquor, granted upon certain 
specified conditions, a violation of which, according to the express 
terms of the license, should have the effect to revoke it, is not a for- 
feiture beyond the powers of the corporation; for a license is not 
property in such sense that a revocation of it may be said to be a 
forfeiture.379 And where, by a city ordinance, the city council has 
authority at any time to annul a license actually issued under its 
order, a fortiori it may rescind an order granting a license, where the 
license has not yet issued.380 
876 Curry v. Tawas Tp., 81 Mich. 355, 
45 N. W. Rep. 831. 
877 Martel v. East St. Louis, 94 Ill. 67. 
378 Supra, 127-129; Brown v. State, 
82 Ga. 224, 7 S. E. Rep. 915; Fell v. 
State, 42 Md. 71; Calder v. Kurby, 5 
Gray, 597; Comm. v. Brennan, 103 
Mass. 70; Martin v. State, 23 Nebr. 371, 
36 N. W. Rep. 554; Pleuler v. State, 11 
Nebr. 547, 10 N. W. Rep. 481; Spray- 
berry v. City of Atlanta, (Ga.) 13 S. E. 
Rep. 197. Compare State v. Baker, 32 
Mo. App. 98. 
879Hurber v. Baugh, 43 Iowa, 514. 
380 Sights v. Yarnalls, 12 Gratt. 292. 
233 § 191 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
§ 190. Revocation by Repeal of Law. 
All existing and unexpired liquor licenses are of course revoked or 
annulled by the adoption of the system of total prohibition in the 
state, by statute or constitutional amendment.381 And in the same 
way, the adoption of a local option law in any particular district will 
have the effect of abrogating all licenses previously granted to be exer- 
cised in its limits.382 And in general, this is the consequence which 
follows the repeal of the law under which the license was granted. 
On this point the supreme court of Ohio remarks that, connected as 
the subject is with the public police and domestic regulations of the 
state, it is clear that the legislature has the power, on the ground of 
protecting the health, morals, and good order of the community, to 
revoke, or provide the mode of revoking, the unexpired licenses granted 
under a former act which is afterwards repealed; but the exercise of 
this power, without refunding the money obtained for the license, 
would be an act of bad faith; and as repeals by implication are not 
favored, and penal statutes are strictly construed, such an operation 
will not be given to the law by mere implication, in the absence of 
words directly and clearly expressive of such an intention.883 
§ 191. Jurisdiction for Revocation. 
As a general rule, the jurisdiction for the revocation of a license 
is vested in the same board, court, or officer who possesses the power 
to grant licenses. Thus, in Pennsylvania, the courts of quarter ses- 
sions have the power to revoke duly granted licenses, upon sufficient 
cause being shown.384 But where a general law of the state provides 
that certain violations of the liquor law (as, for instance, selling to 
minors) shall be attended by the forfeiture of any retail license the 
offender may hold, the city license of one who is convicted of such 
offense must be revoked, although, under its charter, the city is 
invested with exclusive authority "to license, tax, regulate, restrain, 
ssi Supra, §§ 84, 90, 127. 
Supra, 101, 127. 
883Hirn v. State, 1 Ohio St. 15. 
^Dolan's Appeal, 108 Pa. St. 564. 
234 Ch. 8] 
§ 192 
THE LICENSING SYSTEM. 
suppress, and prohibit bar-rooms, groceries, and tippling-houses," 
and also power "to impose forfeitures. ',385 
§ 192. Causes for Revocation of License. 
It may be stated as a general rule that if the holder of a license 
to sell liquor is convicted of an offense against the liquor laws of the 
state, or against the municipal ordinance under which the permit 
was granted, this will work a forfeiture of his license, or constitute a 
cause for which the license may be revoked.386 But there are different 
provisions in the different states as to the method of ascertaining the 
existence of a cause of forfeiture, or the degree of proof which will jus- 
tify action on the partof the authorities empowered to revoke thelicense. 
Where, as in some states, the statute declares that the "conviction" of 
the licensee, by a court of competent jurisdiction, of an offense against 
these laws, shall annul his license, it is held that nothing less than a 
final judgment, conclusively establishing guilt, will satisfy the mean- 
ing of the word "conviction," and a verdict, not followed by a judgment, 
is not sufficient.387 But in other states, the license commissioners are 
to act upon evidence of a breach of the laws presented directly to 
them, and their findings will not be disturbed on review, unless it 
appears that they were not authorized, as a matter of law, to draw 
the inference they did.388 Under the rule that a master is responsible 
for the acts of his servant, at least when committed in his presence 
or with his knowledge and permission, it is held that if a bar-tender 
is convicted of making an illegal sale, under such circumstances, this 
will justify the revocation of the principal's license.389 In some 
states, the forfeiture of the license is a consequence of a conviction 
for carrying on or permitting gambling in the place licensed, and this 
is to be decreed by the court when the jury have found the substan- 
385State v. Horton, (Oreg.) 27 Pac. 
Rep. 165. 
386 Ballentine v. State, 48 Ark. 45, 2 S. 
W. Rep. 340; Martin v. State, 23 Nebr. 
371, 36 N. W. Rep. 554; People v. Mey- 
ers, 95 N. Y. 223; Ottumwa v. Schaub, 
52 Iowa, 515, 3 N. W. Rep. 529; Davis 
v. Comm., 75 Ya. 944. 
387 Comm. v. Kiley, 150 Mass. 325, 23 
N. E. Rep. 55. 
388 Rodden v. License Comm'rs, (R. 
I.) 21 Atl. Rep. 1020. 
^People v. Meyers, 95 N. Y. 223, 
People v. Woodman, (Com. Pl. N. Y.) 
3 N. Y. Supp. 926, 22 N. Y. St. Rep. 
229. 
235 § 193 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
tive fact charged.390 Where the person's license expires, and is 
renewed for a year, after the commission of an offense, but before a 
conviction therefor, it is held that a revocation of the new license is 
proper; the power of revocation is not limited to the license in force 
at the time of the violation of the law.391 A remonstrance against 
the issue of a license having been overruled, and an appeal taken, 
the revocation of a license issued before the appeal is disposed of will 
be compelled by mandamus, although there may have been some delay 
in perfecting the appeal.392 
§ 193. Notice to Licensee. 
If the statute directs that the holder of a license shall be notified 
of the institution of proceedings to revoke the same, and be sum- 
moned to appear and show cause against the complaint, the proceed- 
ings will be void unless these requisites are complied with.893 But if 
the law makes provision for a hearing, it is implied that the licensee 
shall have notice and an opportunity to defend; and although no 
specific direction for such notice is given, yet the law cannot be 
objected to on that ground,394 nor can the authorities proceed with- 
out giving notice.395 In Georgia, however, it is said that where the 
license itself contains the conditions of forfeiture, as prescribed by 
the ordinance under which it was granted, the licensee, on conviction 
of a violation of the law, is not entitled to any notice of the forfeit- 
ure of his license.896 Where the license is in form a proper license 
to a partnership, it is unnecessary to give notice of the hearing on 
390 Ballentine v. State, 48 Ark. 45, 2 
S. W. Rep. 340. Where the licensee 
rented an adjoining room, and con- 
nected it with the saloon by a door way, 
knowing that it was to be used by the 
lessee for gaming purposes, and a game 
of faro was there carried on under the 
lessor's observation and with his per- 
mission, held, that he was guilty of 
knowingly permitting gaming to be 
carried on in his house, so that his 
license might properly be revoked. 
Brockway v. State, 36 Ark. 629. 
391 People v. Woodman, (Super. N. Y.) 
4 N. Y. Supp. 532, 22 N. Y. St. Rep. 
435. 
392 State v. Bays, (Nebr.)48 N. W. Rep. 
270. 
393Plummer v. Comm., 1 Bush, 26. 
394 Young v. Blaisdell, 138 Mass. 344. 
396Gaertner v. Fond du Lac, 34 Wis. 
497. 
396 Sprayberry v. Atlanta, (Ga.) 13 S. 
E. Rep. 197. 
236 Ch. 8] 
THE LICENSING SYSTEM. 
§194 
an application for its revocation to more than one member of the 
firm.397 In Massachusetts, it is ruled that if any notice to a licensee, 
that his license has been revoked, is necessary, a verbal notice is 
enough, the statute not providing for a written notice.398 
§ 194. Proceedings and Evidence. 
In some of the states, it is enacted by law that proceedings for the 
revocation of a license shall be founded on a complaint made to the 
licensing authorities. Where this is the case, it is not sufficient, to 
authorize the board to issue a warrant, that matter of complaint has 
come to their knowledge.399 The complaint must aver the existence 
of a license.400 And it must charge the transgression complained of 
with reasonable certainty. If it merely alleges a violation of a city 
ordinance, without specifying any offense therein mentioned, or 
charges illegal sales of liquor, without giving dates, it is fatally defect- 
ive.401 But in most of the states, it is considered that the law does 
not require the same strictness of proceedings or proof, in these cases, 
that is necessary in actions or special proceedings in courts ; the pro- 
ceeding may be summary,402 and the authorities are not required to 
take the formal proceedings essential to form the basis of a judicial 
decision affecting life, liberty, or property.403 Noris this the species 
of proceeding in which the defendant is entitled, as a matter of con- 
stitutional right, to a trial by jury. The object is not punishment, 
but the revocation of a privilege. The power to license and to can- 
cel licenses being vested in the legislature, the mode and manner in 
which it shall be done rests in its discretion.404 And it is no bar to 
the proceeding that it is founded on some act or offense for which the 
defendant has been formerly convicted.405 But if the law provides 
that the licensee "may be summoned before the commissioners, when 
he and the witnesses for or against him may be heard," it is necessary 
397 Comm. v. Bearce, 150 Mass. 389, 23 
N. E. Rep. 99. 
398 Comm. v. Hamer, 128 Mass. 76. 
399 State v. Lamos, 26 Me. 258. 
409 Brubaker v. State, 89 Ind. 577. 
401 State v. City of Tomah, (Wis.) 49 
N. W. Rep. 753. 
402 People v. Haughton, 41 Hun, 558. 
403 People v. Wright, 3 Hun, 306, 5 
Thomp. & C. 518. 
404 Cherry v. Comm., 78 Va. 375; Peo- 
ple v. Board of Comm'rs, 59 N. Y. 92. 
405 Cherry v. Comm., 78 Va. 375. 
237 § 195 
LAW OF INTOXICATING LIQUORS. 
[Ch. 8 
that he should be informed of the accusation against him and that 
witnesses be heard.406 And if witnesses are called, it is imperative 
that they should be sworn.407 But where the cause of forfeiture is 
the conviction of the defendant in a competent court, of a violation 
of the liquor laws, a proper certificate of such conviction is all the 
evidence that is necessary.408 In some jurisdictions, it is provided 
that the license shall be revoked if the authorities "shall find the 
complaint to be true." Under a law of this character, it is held that 
a resolution that "in view of the evidence presented, the license of 
the respondent be, and the same is hereby, revoked," is a sufficient 
finding of the truth of the complaint, without formally expressing 
that fact.409 In regard to continuances or postponements of the hear- 
ing, the board or council possess practically the same power, and 
should be guided in its exercise by the same rules, which obtain in 
courts of justice.410 
§ 195. Appeal and Review. 
A resolution of a board of excise commissioners revoking a license, 
though not delivered to the person affected, is an act which he is 
entitled to review on proper proceedings.411 But the acts of the 
board will not be reviewed in a proceeding to which it is not a 
party, as, in a criminal prosecution for acts done after the revoca- 
tion.412 The proper method of bringing such proceedings before the 
tribunal having jurisdiction to review them will vary according to 
the statute and the local practice. In some states, it appears that 
the regular process for this purpose is by writ of certiorari™ But 
where this remedy is used, it will be presumed that the lower court 
406 Deignan v. License Comm'rs, 16 
R. I. 727, 19 Atl. Rep. 332. 
407 License Comm'rs v. O'Conner, (R. 
I.) 19 Atl. Rep. 1080. 
408 Martin v. State, 23 Nebr. 371, 36 N. 
W. Rep. 554. 
4,9 State v. City of Beloit, 74 Wis. 267, 
42 N. W. Rep. 110. 
410 See State v. Common Council, 41 
Minn. 211, 42 N. W. Rep. 1058. 
411 People v. Forbes, (Sup.) 4 N. Y. 
Supp. 757, 22 N. Y. St. Rep. 278; State 
v. Scbmidtz, 65 Iowa, 556, 22 N. W. 
Rep. 673. 
412 Comm. v. Hall, 145 Mass. 216, 13 
N. E. Rep. 486. 
41sGaertuer v. Fond du Lac, 34 Wis. 
497. 
238 Ch 8] 
THE LICENSING SYSTEM. 
§ 197 
or board had sufficient evidence to show the violation of law charged 
as a ground for revoking the license.414 On certiorari the question 
is not whether the court or board found rightly, but whether they 
were authorized, as a matter of law, to draw the inference they 
did.415 
§ 196. Effect of Revocation. 
The revocation of a license, under due proceedings, absolutely 
extinguishes the license; and certiorari taken to such action is no 
bar to a prosecution for sales made either during the pendency of 
the writ, or of an appeal from a judgment affirming the action of 
the board.416 Although an ordinance provides that, in certain cases, 
the town council may revoke any license granted by them to keep 
dram-shops, and the town constable shall then close up the licen- 
see's shop, yet the town authorities are not justified in ousting the 
keeper of the shop from his premises by force, and thus depriving 
him of the use of his property.417 But when the statute provides 
that the board are empowered, where necessary, to enter the prem- 
ises and take possession of the license and cancel it, it is held that 
no formal revocation is necessary; it is enough if they write to 
the party that his license is revoked and that they will call on 
him for it; and they may take the license from his premises the 
same day they give the notice.418 
Part IX. Bonds of Licensees. 
§ 197. Bond as Condition Precedent to Validity of License. 
In the states adopting the licensing system, it is generally required 
that the licensed dealer shall execute a bond, with sureties, condi- 
tioned upon his due observance of the laws, and for the payment of 
«4 In re Carlson, 127 Pa. St. 330, 18 
Atl. Rep. 8. 
415 Rodden v. License Comm'rs, (R. 
I.) 21 Atl. Rep. 1020. 
416 Neuman v. State, 76 Wis. 112, 45 
N. W. Rep. 30. 
417 Baldwin v. Smith, 82 Ill. 162. 
418 People v. Woodman, (Super. N. 
Y.) 4 N. Y. Supp. 532, 22 N. Y. St. Rep. 
435. 
239 § 198 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
fines and penalties imposed upon him, and, sometimes, for the pay- 
ment of damages recovered under the civil damage laws. The giv- 
ing of this bond is held to be an essential condition precedent to the 
validity of the license; and a license granted without the bond being 
given is no protection to the holder.419 An order giving one author- 
ity to sell is therefore revocable by the licensing board at any time 
before the approval of the required bond.420 It is of course essential 
that the conditions of the bond should contain nothing repugnant to 
the constitution. But a person who engages in the traffic, without 
ever executing the bond required, has no right to be heard upon the 
validity of its conditions.421 
§ 198. Form and Contents of Bond. 
The bond, in respect to its form and conditions, should comply in 
all matters of substance with the statute directing its execution. 
If it attempts to impose restraints upon the sale of liquor, additional 
to those imposed by the statute, it is not valid.422 But its validity 
is not impaired by the fact that it runs to the village instead of the 
state, as it should.423 And it may be made payable to the city or 
county treasurer without inserting his name, or without containing 
the words "and his successors in office." 424 But if it contains no pro- 
vision for the payment of all damages which may be adjudged against 
the licensee, as provided by the statute, the bond is a nullity.425 A 
bond conditioned that the principal "shall not violate any of the pro- 
visions of the laws" of the state, sufficiently complies with a statute 
requiring a bond conditioned that he "will not violate any of the pro- 
visions of this act." 426 And so where the form given in the act is 
that the licensee "shall pay all fines and forfeitures," a bond is good 
which contains a condition that the licensee "shall pay all damages, 
419 State v. Fisher, 33 Wis. 154. 
420 Crutz v. State, 4 Ind. 385. 
421 Ex parte Bell, 24 Tex. App. 428, 6 
8. W. Rep. 197. 
422 Crosby v. Snow, 16 Me. 121. 
423 Thomas v. Hinkley, 19 Nebr. 324, 
27 N. W. Rep. 231. But compare Vil- 
lage of St. James v. Hintgten, (Minn.) 
50 N. W. Rep. 700. 
424 Redpath v. Nottingham, 5 Blackf. 
267; Tripp v. Norton, 10 R. I. 125. 
425 Sexson v. Kelley, 3 Nebr. 104. 
426 Providence v. Bligh, 10 R. I. 208. 
240 Ch. 8] 
THE LICENSING SYSTEM. 
§ 199 
fines, costs, and penalties," because "penalties" and "forfeitures" are 
here synonymous, and the added terms are merely surplusage.427 
Where the statute, in one section, requires the licensee to give a penal 
bond for $2,000, and, in another section, to guard against the sale 
of adulterated liquor, requires another bond for $500, it is held that 
one bond in the sum of $2,500, covering all the conditions prescribed 
for both bonds, is not void for excess in the amount of the penalty.428 
§ 199. Approval of Bond. 
The statutes require the liquor-dealer's bond to be approved by the 
court or board granting the license, and invest them with a consider- 
able measure of discretion and judgment, particularly in regard to 
the sufficiency of the sureties. Unless it is shown that this discre- 
tion was unreasonably or arbitrarily exercised, or that they were 
actuated by illegal or improper motives in rejecting the bond, the 
process of mandamus will not be used to compel their approval of it.429 
If it appears that, from their investigation and their own knowledge, 
they had reason to think that the property of one of the bondsmen 
was insufficient, this writ will not be granted.430 Nor will their action 
be disturbed where the testimony as to the value of the property of 
the persons offered as sureties was conflicting.431 That a committee 
of the council (the licensing authority) has reported favorably on a 
bond referred to it, and that the city attorney has instructed the 
council that it is their duty to approve the bond, does not preclude 
the council from making further investigations.432 When the name 
of one of the sureties has been erased, apparently after the sureties 
had qualified, this is a ground, in the exercise of judicial discretion, 
for refusing to approve the bond.433 At the same time, it must be 
427 Crawley v. Comm., 123 Pa. St. 275, 
16 Atl. Rep. 416. 
428 Greene Co. v. Wilhite, 29 Mo. App. 
459. 
429 McHenry v. Chippewa, 65 Mich. 9, 
31 N. W. Rep. 602; Post v. Township 
of Sparta, 64 Mich. 597, 31 N. W. Rep. 
535; Comm. v. Wilson, (Pa. Sup.) 18 
Atl. Rep. 601, 25 W. N. C. 148. 
430 Palmer v. President, 73 Mich. 96, 
40 N. W. Rep. 850. 
431 Wolfson v. Rubicon Tp., 63 Mich. 
49, 29 N. W. Rep. 486; Post v. Town- 
ship of Sparta, 64 Mich. 597, 31 N. W. 
Rep. 535. 
432 Amperse v. Winslow, 75 Mich. 234, 
42 N. W. Rep. 823. 
433 Comm. v. Wilson, (Pa. Sup.) 18 Atl. 
Rep. 601, 25 W. N. C. 148. 
INTOX.LIQ.-16 
241 § 201 
[Ch. 8 
noted that this discretion is confined within reasonable and proper 
limits. In passing upon the sufficiency of sureties, for example, the 
board has no right to disregard affidavits without legal proof, or to 
reject sureties arbitrarily; an abuse of discretion may be remedied 
by mandamus.^ Nor can the authorities reject a liquor-dealer's 
bond because the principal is a married woman.436 
LAW OF INTOXICATING LIQUORS. 
§ 200. Breach, of Condition of Bond. 
The bond of a liquor-dealer is violated by any offense against the 
laws for the observance of which it is conditioned, by an abuse or 
misuse of the privilege, or by selling in quantities, or at times or 
places, or to persons, other than those allowed by the license.436 It 
is said that a city is not precluded from claiming the penalty on a 
license bond because the unlawful sale was made to a police officer 
sent by the chief for detective purposes, if the sale was not specially 
induced by anything said or done by the officer.437 Where a license 
bond is filed in pursuance of a statute requiring the execution of such 
a bond every year, it relates back to its date, and covers the time 
prior to its filing.438 
§ 201. Actions on Bonds. 
Although the statute, directing the license bond to be given to the 
town or city treasurer, makes no provision for its running to his suc- 
cessors in office, yet an action may be maintained by such successor 
on a bond so running.439 In Iowa, where the code provides that a 
suit may be brought on the bond for failure to make the required 
reports, in the name of the state, on the relation of any citizen of* 
the county, it is held that the right thus given is not inconsistent 
with another provision, that the district attorney shall bring suit on 
such bond, but exists as a modification of the district attorney's 
434 Potter v. Homer, 59 Mich. 8, 26 N. 
W. Rep. 208. 
435Amperse v. Kalamazoo, 59 Mich. 
78, 26 N. W. Rep. 222. 
436Lightner v. Comm., 31 Pa. St. 341. 
437 Tripp v. Flanigan, 10 R. I. 128. 
438 Brockway v. Petted, 79 Mich. 620, 
45 N. W. Rep. 61. 
439 Granger v. Hayden, (R. I.) 20 Atl. 
Rep. 833. 
242 Ch. 8] 
THE LICENSING SYSTEM. 
§ 203 
power.440 The previous conviction of the principal, for a violation 
of the liquor law, is not a prerequisite to a suit on the bond, unless 
made so by statute.441 But if such conviction has taken place, the 
record of it is a sufficient proof of the breach of the bond in a civil 
action upon it.442 And in such action, neither the principal nor 
sureties will be heard to deny that the license was issued to him in 
conformity to the law.443 The obligation of the bond is not affected 
by the fact that the principal has been fined the amount of the pen- 
alty, and has served out a term of imprisonment for non-payment 
of the fine.444 
§ 202. Damages Recoverable in Suit on Bond. 
Unless there is something in the statute to indicate a contrary 
intention, the license bond will not be held to cover fines or judg- 
ments under acts passed after the license was issued and the bond 
taken.446 In Massachusetts, it is held that the surety on such a 
bond is liable for the amount of a judgment recovered against the 
licensee under a statute which provides that whoever shall sell or 
give intoxicating liquor to any minor shall forfeit $100 for each 
offense, to be recovered by the parent or guardian of the minor in an 
action of tort.446 In Illinois, in a suit on such bond, exemplary 
damages cannot be recovered, but only such actual damages as the 
party for whose use the suit is brought may have sustained, either 
in person, property, or means of support.447 
§ 203. Liability of Sureties. 
In order to fix the liability of the sureties on a liquor-dealer's bond, 
it is not necessary to show that the bond was approved by the 
440 State v. Martland, 71 Iowa, 543, 32 
N. W. Rep. 485; State v. Humber, 73 
Iowa, 767, 34 N. W. Rep. 829. 
441 Granger v. Hayden, (R. I.) 20 Atl. 
Rep. 833. 
442 Wei ch v. McKane, 55 Conn. 25, 10 
Atl. Rep. 168. 
443Schulher v. State, (Miss.) 8 South. 
Rep. 328. 
444Brown v. Comm., 114 Pa. St. 335, 6 
Atl. Rep. 152; Stehle v. Comm., (Pa. 
Sup.) 7 Atl. Rep. 169. 
445 Crawley v. Comm., 123 Pa. St. 275, 
16 Atl. Rep. 416. 
446 Day v. Frank, 127 Mass. 497. 
w Cobb v. People, 84 Ill. 511. 
243 § 204 
[Ch. 8 
LAW OF INTOXICATING LIQUORS. 
licensing board, although the statute requires that it shall be so 
approved, or that the sureties were notified of the acceptance of their 
security, since the issue of the license on the bond implies its 
approval and acceptance, and no more formal notice is required.448 
And where the bond is in strict compliance with the statute, the fact 
that the justification of the sureties annexed to the bond does not 
conform to the statute, is no defense lo the liability of the sureties; 
nor is the bond invalidated by the negligence of the authorities in 
accepting it without the proper affidavit of justification; 449 nor by 
the failure to file it with the county treasurer, as the law directs, as 
that is a mere clerical act, and not essential to the validity of the 
bond.450 Where the bond contains the express condition that the 
sureties shall be liable to pay any judgment rendered against their 
principal on the bond for actual or exemplary damages in a court of 
competent jurisdiction, the sureties have no right, in an action 
against them for the amount of a judgment rendered against the 
principal, to retry the merits of the original suit in which the judg- 
ment was rendered.451 Where the principal has been convicted of an 
illegal sale, and has served a term of imprisonment, in default of 
paying his fine, this does not discharge or release the sureties.452 
Part X. Town Agents. 
§ 204. Appointment and Character of Town Agents. 
In some of the New England states, where the system of prohibi- 
tion obtains, in its full or modified form, a person is appointed in each 
town to purchase intoxicating liquors for the town, and having the 
exclusive right to sell the same for the permitted purposes, medical, 
mechanical, scientific, etc. He either receives a fixed salary, or is 
permitted to make limited profits on his sales. He is not considered 
449 Coggeshall v. Pollett, 15 R. I. 168, 
1 Atl. Rep. 413. 
449 People v. Laning, 73 Mich. 284, 41 
N. W. Rep. 424 
450 Brockway v. Petted, 79 Mich. 620, 
45 N. W. Rep. 61. 
451 People v. Laning, 73 Mich. 284, 41 
N. W. Rep. 424. 
462 Brown v. Comm., 114 Pa. St. 335, 
6 Atl. Rep. 152. 
244 Ch. 8] 
§ 205 
THE LICENSING SYSTEM. 
a city or town officer. His situation is not an office, but an employ- 
ment, which ceases if not renewed at the end of the year; he does 
not hold over until his successor is chosen.453 The town agent has 
no authority to act until he has given the bond and received the cer- 
tificate required by the statute.454 And unless he gives the bond and 
otherwise complies with the act, he cannot make the town liable for 
his purchases by pledging its credit.455 Conversely, to support an 
action by the town against the agent, it must be shown by legal evi- 
dence that the latter was duly appointed as such agent.456 
§ 205. Powers and Duties of Town Agents. 
The liquors purchased by the town agent, in pursuance of his 
appointment, belong to the town, and at the termination of his agency, 
it is his duty to account to the town for the liquors remaining on 
hand, and for the proceeds of such as have been sold.457 If a state 
agent is appointed, having the exclusive right to sell to town agents, 
the towns are not liable for liquors purchased by their agents from 
others, after notification of the appointment of the state agent.458 
Town agents must also keep strictly within the bounds of their author- 
ity in making sales. If the statute provides that their sales shall be 
made for cash, they cannot give credit, notwithstanding a local cus- 
tom to give thirty days' time.459 If a town agent transcends his 
authority by making sales for forbidden purposes, or by buying and 
selling liquor as a matter of private speculation, he is liable to indict- 
ment and punishment, in the same manner as any other person, not- 
withstanding he is also liable to have his agency revoked, and to a 
suit upon his bond.460 Also, if the commissioner who appoints the 
agent enters into a contract with him, to furnish him with all the 
liquor he may purchase, at a profit, such agreement is void, being 
against the policy of the law.461 
453 State v. Weeks. 67 Me. 60. 
454Comm. v. Pillsbury, 12 Gray, 127. 
456 Atkins v. Randolph, 31 Vt. 226. 
456 Foxcroft v. Crooker, 40 Me. 308. 
457 Washington v. Eames, 6 Allen, 417. 
458 Lauten v. Allenstown, 58 M. H. 289. 
459Mansfield v. Stoneham, 15 Gray, 
149. 
460 State v. Keen, 34 Me. 500; State v. 
Putnam, 38 Me. 296. 
461 Baldwin v. Coburn, 39 Vt. 441. 
245 § 206 
[Ch. 9 
LAW OS' INTOXICATING LIQUORS. 
CHAPTER IX. 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 206. Sale of Liquor by Druggists without License. 
207. Druggists' Licenses and Bonds. 
208. Druggists' Permits in Prohibition States. 
209. Unlawful Sales by Licensed Druggists. 
210. Question of Intention and Good Faith. 
211. Sale on Prescription of Physician. 
212. Druggists' Reports of Sales. 
213. Sales by Druggists' Clerks. 
214. Revocation of Druggist's License. 
215. Sale of Liquor by Physicians. 
216. Sales by Persons who are both Druggists and Physicians. 
§ 206. Sale of Liquor by Druggists without License. 
The right of druggists to sell intoxicating liquors, within the gen- 
eral scope of their proper business, without the protection afforded 
by a retailer's license, is a subject which has frequently engaged the 
attention of the courts, and especially in those states where the law 
makes no special provision for this class of sales, or does not provide 
for special permits for pharmacists. It then becomes a question 
whether the peculiar position of these persons, and the purpose for 
which they sell the prohibited articles, will exempt them from the 
general and comprehensive terms of the statute. Of course no drug- 
gist can be allowed to sell liquor for tippling purposes, unless he takes 
out a license and makes his place of business avowedly a dram-shop. 
But there are many authorities which hold that if a druggist sells 
spirituous liquors, upon a proper occasion, in good faith, and with due 
caution, (and especially under a physician's prescription,) to be used 
for medical purposes only, he is not to be regarded as having vio- 
lated the law, although he holds no license to sell, and although the 
law does not explicitly except him from its terms. Such a sale may 
be contrary to the letter of the statute, when it prohibits all persons 
from selling without a license, but it is no violation of its spirit, nor 
246 Ch. 9] 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 206 
does it fall within the evils which the license laws are intended to 
remedy. And on this ground the courts will imply an exception in 
favor of sales made for such purposes and under such circumstances 
as those above supposed.1 A similar construction is put upon the 
United States internal revenue laws. For it is held that an apothe- 
cary who in good faith uses spirituous liquors in the preparation of a 
medicine, to be used as such and not as a beverage, does not violate 
the statute, although he has not paid the special liquor-dealer's tax.2 
Where a town charter prohibits the sale of liquor within the town, 
but with a proviso that it shall not be so construed as to prevent 
druggists and physicians from selling liquor for medical or sacra- 
mental purposes, it is adjudged that these persons, selling for such 
uses, need not take out a license under the general law.3 
Whether the prescription of a physician is necessary to protect the 
druggist, is perhaps not fully settled. Numerous authorities, either 
expressly or by implication, hold that the want of such prescription 
will not make the seller guilty, if he used due care and caution in 
ascertaining the purpose for which the liquor was wanted, and him- 
self acted in entire good faith.4 But in some states, it is the rule 
that he is not justified in selling unless the article is prescribed as a 
medicine by a practising physician.6 On principle, this is no proper 
ground on which to determine his guilt or innocence. If the pur- 
chaser brings a written order from a medical man, this will no doubt 
relieve the druggist from some portion of the care and caution which 
he is in all cases bound to exercise. But the ultimate question is 
always as to the purpose for which the article is to be used and the 
good faith of the parties. And even if the sale was made under the 
direction and prescription of a physician, that is not enough, unless 
1 Donnell v. State, 2 Cart. (Ind.) 658; 
Jakes v. State, 42 Ind. 473; Ballv. State, 
50 Ind. 595; Hooper v. State, 56 Ind. 153; 
Elrod v. State, 72 Ind. 292; Nixon v. 
State, 76 Ind. 524; Comm. v. Porter, 10 
Phila. 217; State v. Wray, 72 N. Car. 
253; Hainline v. Comm., 13 Bush, 350; 
State v. Mitchell, 28 Mo. 562; State v. 
Wells, Id. 565; State v. Robertson, 24 
Mo. App. 232. 
2 United States v. Calhoun, 39 Fed. 
Rep. 604. 
3 Jones v. State, 68 Ala. 559. 
4 State v. Robertson, 24 Mo. App. 232, 
State v. Mitchell, 28 Mo. 562; Donnell 
v. State, 2 Cart. (Ind.) 658; Jakes v. 
State, 42 Ind. 473; Ball v. State, 50 Ind. 
595; Hainline v. Comm., 13 Bush, 350. 
6 State v. Cox, 23 W. Va. 797. See in- 
fra, § 211. 
247 § 206 
[Ch. 9 
LAW OF INTOXICATING LIQUORS. 
it is also shown that it was prescribed for medical purposes.6 And 
in any case, an unlicensed person, who is not a druggist, cannot law- 
fully retail liquor, even on a physician's prescription.7 It will be 
understood that we are not now concerned with the practice in those 
states where the statutes expressly provide for druggists' permits and 
require a prescription to justify a sale. These laws will be considered 
in a later section. 
The general doctrine above stated, however, is not universally 
accepted. In several of the states it is held that, under a statute 
forbidding the sale of intoxicating liquors by any person without a 
license, and containing no express exception in favor of druggists, 
such persons cannot lawfully sell liquor, even as a medicine, and even 
on the prescription of a physician.8 And where the law provides, in 
effect, that any one selling liquor without a license shall be liable to 
a fine, it is held that a druggist selling without license is not exempt 
from the fine because it happened that there was no one authorized 
to issue licenses to druggists; the license is made a prerequisite to 
the right to sell; if he could not obtain it, he had no right to sell.9 
So in Maine, it is held that the conviction of a physician, not appointed 
by the town an agent for the sale of spirituous liquors, who sold such 
liquors for the purpose of mixture with certain medicines, was right, 
although the medicines were purchased at the same time with the 
liquor.10 But in Massachusetts, it is said that the keeping of intox- 
icating liquors, without a license, only for the purpose of mixing them 
with other ingredients, according to the prescriptions of physicians, 
to be used as medicine, and of manufacturing such compounds as are 
commonly used by druggists for medicinal purposes, is not a violation 
of the statute.11 In Tennessee, as the law now stands, it is not lawful 
6 People v. Safford, 5 Denio, 112. 
7 State v. Dalton, 101 N. Car. 680, 8 S. 
E. Rep. 154. 
8 Woods v. State, 36 Ark. 36, 38 Am. 
Rep. 22; Flower v. State, 39 Ark. 209; 
Chew v. State, 43 Ark. 361; State v. 
Gray, (Conn.) 22 Atl. Rep. 675; Wright 
v. People. 101 111. 126; State v. Bissell, 
67 Iowa, 616, 25 N. W. Rep. 831; Salina 
v. Seitz, 16 Kans. 143; King v. State, 66 
Miss. 502, 6 South. Rep. 188; Brown v. 
State, 9 Nebr. 189, 2 N. W. Rep. 214; 
Carl v. State, 89 Ala. 93, 8 South. Rep. 
156. 
9 Rosenham v. Comm., (Ky.)2 S. W. 
Rep. 230. 
io State v. Hall, 39 Me. 107. 
11 Comm. v. Ramsdell, 130 Mass. 68. 
See, also, Comm. v. Pierce, 147 Mass. 
161, 16 N. E. Rep. 705. 
248 Ch. 9] 
§ 207 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
for a druggist to sell spirituous or vinous liquors without a license, 
for any purpose whatever, except wine for sacramental uses.12 
§ 207. Druggists' Licenses and Bonds. 
In some of the states, as already intimated, it is considered nec- 
essary for druggists, who propose to sell liquor, to take out a license, 
either under the general excise laws, or under the statutory provisions 
specially applicable to their case. Thus, under the Tennessee stat- 
ute, a druggist who sells liquor is liable for a liquor-dealer's occupa- 
tion tax, although he has paid a merchant's tax.13 But where an 
ordinance regulating the sale of liquor makes no mention of a written 
permit being required, none is necessary.14 As to whether a drug- 
gist comes within the scope of the laws requiring retail dealers to 
furnish bonds conditioned for a due observance of the liquor laws, 
the authorities are not in harmony. In Illinois the opinion prevails 
that no bond is required from such persons.16 And this rule seems 
to accord well with the meaning and purpose of the provisions in 
question. But in Missouri, it is held that druggists and physicians 
are not exempted from giving the statutory bond, although the law per- 
mits them to mix and adulterate liquors for medicinal and mechanical 
purposes.16 In other states the law requires all liquor-sellers to make 
oath that they will not adulterate their commodities. And this is held 
to apply to pharmacists, so that, without taking this oath, they cannot 
lawfully sell liquor, even upon a physician's prescription.17 In Kan- 
sas, a civil action may be maintained by the state for the breach of 
a druggist's bond, given under the laws providing against the illegal 
sale of intoxicating liquors, although no criminal prosecution or con- 
viction has been had.18 
12 State v Wharton, (Tenn.) 3 S. W. 
Rep. 490. 
13 Druggist Cases, 85 Tenn. 449, 3 S. 
W. Rep. 490. 
14 Moore v. People, 109 Ill. 499. 
16 Moore v. People, 109 Ill. 499. 
16 State v. Ferguson, 72 Mo. 297. 
17 Newman v. State, 7 Lea, 617. 
13 State v. Pierce, 26 Kans. 777. 
249 § 208 
[Ch. 9 
LAW OF INTOXICATING LIQUORS. 
§ 208. Druggists' Permits in Prohibition States. 
In those states where total prohibition of the manufacture and sale 
of intoxicating liquors as a beverage is the rule, the right to sell such 
liquors for the excepted purposes-medical, mechanical, scientific, 
and sacramental-is exclusively reserved to those persons, usually 
druggists, who shall receive permits for that purpose from the proper 
authorities. The laws make provision for the careful selection of 
these persons, with reference to their being trustworthy, for the restric- 
tion of their sales to the authorized purposes, and for the supervision 
or control of their business by the authorities. Enactments of this 
character are held to be complete in themselves and to contain the 
whole system for the regulation of sales by druggists.19 And they 
take away the right of all persons who are not pharmacists to sell 
liquor for medical uses.20 Under these laws, it is held that a drug- 
gist is not required to give a bond, in order to obtain a permit to sell, 
unless the act expressly so provides.21 But he is held strictly within 
the limits of his statutory powers. And he has, for example, no 
authority to give away liquor for any unlawful purpose.22 But he 
is entitled to keep on hand such an amount of liquors as may be 
necessary, not only for present use, but for a reasonable time in the 
future.23 Where the statute provides a penalty if any person shall 
sell or suffer to be sold intoxicating liquors, in one of its sections, and 
another section provides a different penalty for pharmacists, it is held 
that the former section includes pharmacists violating the law, and 
that the latter section provides a cumulative penalty, but that neither 
section is for that reason unconstitutional.24 However, a provision 
that nothing contained in the statute shall shield the druggist who 
abuses his trust from the utmost rigors of the law, does not require 
the highest possible penalty to be fixed on the conviction of a drug- 
19 State v. Courtney, 73 Iowa, 619, 35 
N. W. Rep. 685; State v. Douglas, 73 
Iowa, 279, 34 N. W. Rep. 856. 
20 State v. Aulman, 76 Iowa, 624, 41 
N. W. Rep. 379. 
21 State v. Courtney, 73 Iowa, 619, 35 
N. W. Rep. 685. 
22 State v. Harris, 64 Iowa, 287, 20 N. 
W. Rep. 439. 
23 State v. Shank, 79 Iowa, 47, 44 N. 
W. Rep. 241. 
24 State v. Duggan, 15 R. I. 403, 6 Atl. 
Rep. 787. 
250 Ch. 9] 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 209 
gist.26 Under a statute that druggists "may" sell intoxicating liquors, 
on proper application, such sale is discretionary with the druggist, 
and in refusing to make such a sale, he is not required to give a 
reason for his refusal; nor is he liable in an action for damages for 
such refusal.26 
§ 209. Unlawful Sales by Licensed. Druggists. 
Druggists holding licenses or permits under the statutes above 
described are amenable to the laws for any abuse of the privilege 
intrusted to them. Thus, a registered pharmacist, who is permitted 
to sell liquors "for the necessities of medicine," and who sells for 
other purposes, is guilty of maintaining a liquor nuisance.27 So, 
where one holding a permit to sell for mechanical, medicinal, culi- 
nary, and sacramental purposes, sells beer by the keg, to be used in the 
manufacture of a beverage known as "I. M. Soda-Water," it is a viola- 
tion of the permit.28 And a druggist making an unlawful sale can- 
not defend on the ground that the buyer said that he wanted the 
liquor for medicinal purposes, when in fact it was not used, nor did 
the seller believe it was to be used, for such purposes.29 So, under 
the laws of New Hampshire, authorizing all registered pharmacists 
to "keep spirituous liquors for compounding their medicines," they 
are not authorized to sell such liquor not compounded with medi- 
cine.30 Nor are they authorized to sell to others to be compounded 
with medicines.31 Anda pharmacist who has violated the provisions 
of the law, being indicted for having liquors in his possession, can- 
not protect himself by alleging that the liquor when seized was not 
in his actual possession.32 But on such an indictment, evidence that 
at the time of the seizure he had pending an application for a drug- 
gist's license, and that five days after the making of the complaint, 
25 State v. Hoagland, 77 Iowa, 135, 41 
N. W. Rep. 595. 
26Treahey v. Holliday, 43 Kans. 29, 22 
Pac. Rep. 1004. 
27 State v. Salts, 77 Iowa, 193, 39 N. 
W. Rep. 167. 
28 State v. Yager, 72 Iowa, 421, 34 N. 
W. Rep. 188. But a regularly licensed 
druggist may sell a glass of lager beer 
upon the prescription of a physician. 
Harper v. State, 3 Lea, 211. 
29 McGuire v. State, 37 Miss. 369. 
39 State v. Shaw, 58 N. H. 72. 
31 State v. Brown, 60 N. H. 205. 
32State v. Ward, 75 Iowa, 637, 36 N. 
W. Rep. 765. 
251 § 210 
[Ch. 9 
I,AW OF INTOXICATING LIQUORS. 
he was granted such license, is admissible to explain his possession 
of liquors at the time of the seizure.33 The requirements imposed 
upon druggists by the statute, as to acts to be done after the sale, 
(reporting sales, etc.,) if not complied with, may expose them to 
penalties, but such omission will not render sales unlawful which, in 
antecedent particulars, were legal and proper.34 
§ 210. Question of Intention and. Good Faith. 
Druggists being authorized to sell liquor only for medical purposes, 
it is an offense against the laws if they make sales of intoxicants as 
a beverage or for tippling purposes. And when their dealings are 
made the subject of judicial investigation, and there is reason to sus- 
pect that the form or pretense of furnishing medicine has been used 
as a cloak to cover an illegal sale of alcoholic stimulants, the ques- 
tion is one of intention and good faith, and of due care and caution 
on the part of the seller. This question must be determined upon 
the facts of each particular case, with such light as can be derived 
from the general character and conduct of the defendant's business.85 
Thus, it is proper for the jury to consider the frequency of the sales 
to the witnesses, their appearance as men requiring intoxicating liq- 
uor for medicine, and whether the same was bought with or without a 
physician's prescription.36 The burden of proof is on the defendant 
to show that the sale was lawfully made, under a statute requiring 
the purchaser to furnish a written certificate of the use for which 
the article is wanted.87 And where the purchasers were minors or 
inebriates, it is said the unlawful intent may be presumed from the 
unlawful sales.88 On this principle, an instruction to the jury in 
88 Comm. v. Wellington, 146 Mass. 
566, 16 N. E. Rep. 446. 
34 State v. Von Haltzschuherr, 72 
Iowa, 541, 34 N. W. Rep. 323. 
^Holtendorf v. State, 89 Ind. 282. 
See, also, Haynie v. State, 32 Miss. 400; 
Brooks v. State, 65 Miss. 445, 4 South. 
Rep. 343; State v. Blair, 72 Iowa, 591, 
34 N. W. Rep. 432; State v. Thompson, 
74 Iowa, 119, 37 N. W. Rep. 104; State 
v. Shank, 79 Iowa, 47, 44 N. W. Rep. 
241; State v. Oeder, 80 Iowa, 72, 45 N. 
W. Rep. 543. 
86 State v. Huff, 76 Iowa, 200, 40 N. W. 
Rep. 720. 
87 Comm. v. Perry, 148 Mass. 160, 19 
N. E. Rep. 212. 
88 State v. Thompson, 74 Iowa, 119, 37 
N. W. Rep. 104. 
252 Ch. 9] 
§ 210 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
the following terms has been held correct: "The fact that the 
defendant's place of business was a drug-store does not raise any 
presumption in his favor, and if the state has proven to your sat- 
isfaction that any single sale of spirituous liquors was made by the 
defendant, and the defendant has not then shown that such sale was 
justified under the privileges of a druggist, which he claims, then 
you should convict."89 If, for instance, a druggist sells whisky to 
a stranger upon his mere statement that he wants it for medicine, 
this is not exercising that caution and circumspection which the law 
requires, and a finding that the liquor was sold as a beverage will 
be justified.40 So in Iowa, under the statute, proof that persons 
drank liquor in a pharmacy raises the presumption that such liq- 
uor had been unlawfully given or sold to them by the proprietor 
thereof.41 Where the reports made by a pharmacist to the county 
auditor showed nearly three thousand sales, but the kinds and 
amounts of liquor sold did not appear, nor was it shown to whom the 
sales were made, except in a few instances, it was held that a verdict 
against him was warranted, although he testified that the sales were 
legal.42 Proof that the buyers were wholesale druggists is not suffi- 
cient evidence that a sale of liquor was "for medicinal purposes 
only."48 But on the other hand, when the purchasers testify that 
they bought small quantities of liquor from the defendant in good 
faith, for what they supposed to be their actual need of it as medi- 
cine, and the druggist swears that he sold it in good faith, on the same 
supposition, after consultation with them as to their ailments, and 
there is nothing to raise a suspicion of an illegal course of business, 
the defendant should not be convicted.44 WThere the law requires 
a druggist to take, from those to whom he sells intoxicating liquors, 
written statements which he must file with the probate judge, these 
statements are not incompetent, in a prosecution against the drug- 
^Baeumel v. State, (Fla.) 7 South. 
Rep. 371. 
40 State v. Knowles, 57 Iowa, 669, 11 
N. W. Rep. 620; State v. Blair, 72 Iowa, 
591, 34 N. W. Rep. 432. 
41 State v. Cloughly, 73 Iowa, 626, 35 
N. W. Rep. 652. 
42 State v. Cummins, 76 Iowa, 133, 40 
N. W. Rep. 124. 
43 Mills v. Perkins, 120 Mass. 41. 
44 State v. Hoagland, 77 Iowa, 135, 41 
N. W. Rep. £95; State v. Flusche, 79 
Iowa, 765, 44 N. W. Rep. 698. 
253 § 211 
[Ch. 9 
LAW OF INTOXICATING LIQUORS. 
gist, on the ground that to use them against him would be requiring 
him to criminate himself.46 
§ 211. Sale on Prescription of Physician. 
In some of the states, the statutes prohibit druggists from selling 
liquor except on the prescription of a physician. Where this is the 
case, it is no defense to an indictment for illegal selling that the 
liquor was called for and sold for medical uses, unless there was a 
prescription as required.46 And these statutes are commonly so con- 
strued as to require a separate prescription for each separate sale.47 
But it is said that a sale of the quantity authorized by a prescrip- 
tion, in portions, on three different occasions, instead of the whole 
quantity at once, depends for its validity on the circumstances of the 
particular case, and the bona fides of the sale for medicinal pur- 
poses is a question for the jury.48 Under a statute which makes it 
unlawful for any person to sell liquor in any quantity, except that a 
regular practising physician may in good faith prescribe the same as 
a medicine to his patient, but with no express exception in favor of 
druggists, it is nevertheless held, in Kentucky, that it is lawful for a 
druggist to sell liquor upon a physician's prescription, to be used as 
a medicine.49 And this seems a very just and reasonable construc- 
45 State v. Elliott, (Kans.) 26 Pac. 
Rep. 55. 
46Barton v. State, 99 Ind. 89; State v. 
Hendrix, 98 Mo. 374, 11 S. W. Rep. 728. 
47 Carrington v. Comm., 78 Ky. 83; 
Edwards v. State, 121 Ind. 450, 23 N. E; 
Rep. 277. 
48 State v. May, (S. Car.) 11 S. E. Rep. 
440. 
49Parker v. Comm., (Ky.) 12 S. W. 
Rep. 276; Comm. v. Reynolds, (Ky.) 12 
S. W. Rep. 132. In the case last cited 
it was said: "It was intended, by the 
plain meaning of the act, that liquor 
should be furnished as a medicine under 
the prescription of the physician, and 
whether filled by the druggist or the 
physician is immaterial. The physician 
prescribes the medicine to be used, and 
the druggist fills the prescription. 
Under the construction contended for 
by the commonwealth, the physician 
must not only prescribe the medicine, 
but must furnish it to the patient. If 
he had gone to the druggist and called 
for the whisky, the husband of the 
invalid woman paying for it, it could 
still be argued that it was a sale to the 
husband, and not the physician; that 
the physician must pay the druggist, 
and the patient pay the physician. The 
latter has the right to purchase it as a 
medicine, and when making a prescrip- 
tion, and requiring the patient to pay 
for the liquor, it is in effect its use by 
the physician. It comes within the 
legislative meaning, and the abuse of 
this right by physicians who act in bad 
254 Ch. 9] 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 212 
tion of the law, although an exactly opposite conclusion has been 
reached in Arkansas.60 In regard to the form and contents of the 
prescription, it appears that a close conformity to the terms of the 
statute will be necessary. For example, where the prescription is 
required to be given by a "regularly registered and practising phy- 
sician," a prescription not shown to be such is inadmissible on the 
trial of a druggist for unlawful selling.61 So where the act declares 
that the prescription must specify that the liquor is absolutely nec- 
essary as a medicine, a prescription which omits the word "abso- 
lutely" is insufficient.62 But under a requirement that the prescrip- 
tion shall be signed and dated, a prescription dated by numerals only 
("12, 16, 84,") and signed with the initials of the physician, has 
been held to protect the druggist.63 An ordinance providing that "it 
shall be unlawful for any physician to give a prescription to any well 
person or persons, who is or are in apparently good health, to enable 
him or them to get any of said liquor to be used as a beverage," is 
held to be neither unreasonable, unauthorized, oppressive, nor 
unjustly discriminating against any class of the community.64 
§ 212. Druggists' Reports of Sales. 
In some of the states, where druggists are invested with the exclu- 
sive right to sell liquors for medical and similar uses, the statutes 
require them to keep an account of their sales, and to make period- 
ical reports of the same, in writing, to be filed among the public rec- 
ords of the county.65 These reports, it is held, must cover all the 
faith, and aid in evading the law, af- 
fords no argument for imposing the 
penalty in a case like this. " Pryor, J. 
50 Battle v. State, 51 Ark. 97, 10 S. W. 
Rep. 12. 
61 State v. Millikan, 24 Mo. App. 462. 
52State v. Tetrick, (W. Va.) 11 S. E. 
Rep. 1002. 
53 State v. Clevenger, 25 Mo. App. 
653. 
64 Carthage v. Buckner, 4 Ill. App. 
317. 
65In Illinois, a city ordinance requir- 
ing druggists, under a heavy penalty, 
to furnish to the city clerk a statement 
in writing of the kind and quantity of 
their sales of liquor, and when and to 
whom sold, verified by the oath of every 
servant in the druggist's employ, was 
held to be an invasion of the sanctity 
of private business, and to contravene 
the constitutional guaranty against un- 
reasonable searches. Clinton v. Phil- 
lips, 58 Ill. 102. But the Iowa statute 
does not appear to have been success- 
fully assailed on constitutional grounds. 
Rep. 1002. 
255 § 213 
LAW OF INTOXICATING LIQUORS. 
[Ch. 9 
sales made, including sales on prescription.56 And where the impo- 
sition of a fine is made the consequence of a want of truth in the 
report, the fact that the report was false only through error and 
mistake is no defense.67 Yet the omission or falsity of the report, 
while it will have the effect to make the druggist liable for the pen- 
alties directly imposed therefor, will not operate retrospectively to 
render his previous sales unlawful, or expose him to the punishment 
for illegal selling.63 These reports, when filed as provided, become 
public records, and as such are admissible in evidence against any 
and all persons affected by the facts they disclose. Hence their 
introduction before a grand jury, for the purpose of obtaining an 
indictment against a pharmacist for illegal sales, is proper, and is 
not compelling him to testify against himself.66 And such report 
may be admitted in evidence against him without proving the genu- 
ineness of his signature thereto.60 In Iowa, the statute originally 
required the druggist's return of sales to be made "on the last Sat- 
urday of each month." It was held that this was not mandatory as to 
the exact time of making the return, and that it was sufficient if the 
return was made within the month.61 But after this decision, the 
statute was amended, so as to require the return to be made " on the 
last Saturday of each month or within five days thereafter," and, as 
it now stands, it is held that the requirement is mandatory and not 
directory.62 
§ 213. Sales by Druggists' Clerks 
The license or permit of a druggist, so far as it goes, is a full pro- 
tection to his clerk or servant, when acting within the scope of the 
privileges which it confers upon the master.63 But a druggist's per- 
mit will not authorize his clerk to sell at any other place than the 
56 State v. Chamberlin, 74 Iowa, 266, 
37 N. W. Rep. 326. 
67 State v. Chamberlin, 74 Iowa, 266, 
37 N. W. Rep. 326. 
68 State v. Von Haltzschuherr, 72 
Iowa, 541, 34 N. W. Rep. 323. 
69 State v. Smith, 74 Iowa, 580, 38 N. 
W. Rep. 492; State v. Cummins, 76 
Iowa, 133, 40 N. W. Rep. 124. 
60 State v, Thompson, 74 Iowa, 119, 37 
N. W. Rep. 104. 
61 Abbott v. Sartori, 57 Iowa, 656, 11 
N. W. Rep. 626. 
62 State v. McEntee, 68 Iowa, 381, 27 
N. W. Rep. 265. 
63 State v. Mullenhoff, 74 Iowa, 271, 37 
N. W. Rep. 329. 
256 Ch. 9] 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 215 
drug-store.64 And the license of a druggist cannot be evidence of a 
right in his clerk to sell liquor for other than medicinal purposes, 
when it does not show any authority given to the employer to sell 
such liquors for any purpose other than medicinal.65 
§ 214. Revocation of Druggist's License. 
Under the statutes for the regulation of the practice of pharmacy, 
it is held that a druggist's license maybe revoked for a single unlaw- 
ful sale of intoxicating liquor. And where a person's certificate as a 
pharmacist was revoked, and his name stricken from the register, by 
the commissioners of pharmacy, upon the record proof of his convic- 
tion by a competent tribunal of the unlawful sale of liquor, it was 
held that he could not complain that he was deprived of his property 
without due process of law.66 
§ 215. Sale of Liquor by Physicians. 
It has been held that where a physician administers liquor as a 
medicine, upon his professional judgment of its necessity, he is not 
therefor amenable to the laws prohibiting the sale of intoxicants.67 
But in some states, the statutes, not expressly excepting medical 
men, are so construed that a physician cannot lawfully furnish such 
liquor to a patient, even though he acts in entire good faith and con- 
siders it an appropriate and necessary remedy.68 And in Kansas 
and Iowa, where permits to sell liquor may be granted to druggists 
only, and all other persons are forbidden to sell, it is the rule that a 
physician, unless he holds such a permit, may not sell liquor as med- 
icine to a patient or dispense it in putting up his own prescriptions.69 
Most of the statutes, however, contain such expressions or implica- 
tions as will authorize medical men, in the practice of their profes- 
sion, to make such use of alcoholic liquors as may be justified by 
64 State v. Copp, 34 Kans. 522, 9 Pac. 
Rep. 233. 
65 Provo City v. Shurtliff, 4 Utah, 15, 
5 Pac. Rep. 302. 
66 Hildreth v. Crawford, 65 Iowa, 339, 
21 N. W. Rep. 667. 
67 State v. Larrimore, 19 Mo. 391. 
68 Carson v. State, 69 Ala. 235; Thom- 
ason v. State, 70 Ala. 20. 
69 State v. Fleming, 32 Kans. 588, 5 
Pac. Rep. 19; State v. Benadone, 79 
Iowa, 90, 44 N. W. Rep. 218. 
INTOX.LIQ. 17 
257 § 215 
LAW OF INTOXICATING LIQUORS. 
[Ch. 9 
their medicinal value and the exigencies of the cases they are called 
upon to treat. But it is proper for the state to make suitable pro- 
vision against the abuses that are to be apprehended from unscrupu- 
lous practitioners. And hence a law which casts upon the physician 
the burden of proving that the patient actually needed the liquor as 
a medicine is not unconstitutional.70 And these privileged persons 
are required to act with the utmost integrity, and without any inten- 
tion to evade the law, and to be professionally convinced of the neces- 
sity or expediency of prescribing such articles for the particular 
patient. Thus, when a physician sells liquor to persons who apply 
to him for it, on their own suggestion and request, and not because 
of his prescription as their medical adviser, the fact that he is a prac- 
tising physician is no defense to a prosecution for illegally selling 
intoxicating liquors.71 And the mere fact that he knew the pur- 
chaser's wife was sick would not show that the sale was made for medic- 
inal purposes.72 Where a physician is on trial for giving a prescription 
for liquor to one not a bona fide patient, under a statute in that 
behalf, evidence of the number of prescriptions for liquor given by 
him to various persons within a specified time, is competent, since it 
tends to show whether he gave the prescriptions in good faith or 
merely to evade the law.73 Under the statute in Kentucky, it is 
required that the patient shall be actually sick, and that the physi- 
cian, after making reasonable investigation, shall believe in good 
faith that his patient needs the liquor as a medicine, before he pre- 
scribes it.74 Under a statute permitting physicians to administer 
spirituous liquors in cases of absolute necessity, a physician cannot 
lawfully prescribe a quart of whisky, and give the patient an order 
for it on a drug-store in which he is interested as a partner.76 
70 Comm. v. Minor, 88 Ky. 422, 11 S. 
W. Rep. 472. 
71 State v. Cloughly, 73 Iowa, 626, 35 
N. W. Rep. 652. 
72 Thomason v. State, 70 Ala. 20. 
73 State v. Atkinson, (S. Car.) 11 S. E. 
Rep. 693. 
74 Comm. v. Minor, 88 Ky. 422, 11 S. 
W. Rep. 472. 
76 Brinson v. State, (Ala.) 8 South. 
Rep. 527. In this case it was said: 
"The statute clearly contemplates the 
bona fide administering of such liquors 
as a medicine in cases of necessity, not 
otherwise. We are all of opinion that 
the giving by a physician of an order 
for a quart of whisky, on a drug store 
in which he himself was a partner, 
without more, is not the administering 
of medicine within the meaning of this 
258 Ch. 9] 
REGULATION OF SALES BY DRUGGISTS AND PHYSICIANS. 
§ 216 
§ 216. Sales by Persons who are both Druggists and 
Physicians. 
In Texas, it is held that a druggist, who is also a regular prac- 
tising physician, may prescribe and sell intoxicating liquor, notwith- 
standing the prevalence of the local option law in the district.76 But 
in other states, where a druggist is authorized to sell only on the pre- 
scription of some regularly registered physician, it is ruled that a 
druggist, who is himself a duly qualified physician, cannot lawfully 
sell on his own prescription.77 The clerk of a physician who keeps a 
drug-store is rightly convicted for selling liquor, even upon a physi- 
cian's order and for medical purposes, if he had no license to retail, 
although his master had a physician's license.78 
law, but an illegal sale of spirituous 
liquors, contrary to the terms of the 
statute. " 
76 Boone v. State, 10 Tex. App. 418,38 
Am. Rep. 641. 
77 State v. Anderson, 81 Mo. 78; Til- 
ford v. State, 109 Ind. 359, 10 N. E. 
Rep. 107. 
78 Gault v. State, 34 Ga. 533. 
259 § 217 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
CHAPTER X. 
REGULATION OF LIQUOR TRAFFIC BY MUNICIPAL CORPORATIONS. 
§ 217. Delegation of Regulative Power to Municipalities. 
218. Limits of Legislative Power in This Regard. 
219. Uniformity in Grant of Power not Required. 
220. Extent of Power Delegated. 
221. Ordinances Partially in Excess of Power. 
222. Conflict of Ordinance with Constitution. 
223. Conflict of Ordinance with General Law. 
224. Repeal of Ordinance by Subsequent Statute. 
225. Co-Ordinate Authority of State and Municipality. 
226. Grant of Exclusive Power to Municipality. 
227. Power to Regulate does not Include Power to Prohibit 
228. Power Granted to Municipality cannot be Delegated. 
229. Power of Municipality to Require Licenses. 
230. Power to Exact License Fees. 
231. Limitation of Municipal Power as to Amount of Fee Chargeable. 
232. Differential and Discriminating Rates. 
233. Providing for Revocation of License. 
234. Ordinances Regulating Sale of Liquor. 
235. Ordinance Prohibiting Sale on Sunday. 
236. Prescribing Hours of Closing Saloons. 
237. Prohibiting Employment of Women in Saloons. 
§ 217. Delegation of Regulative Power to Municipalities. 
In the absence of specific constitutional restrictions, it is competent 
for the legislature of a state, by a general incorporation law or by a 
particular charter, to empower a municipality to make ordinances, 
operative -within its limits, for the regulation or licensing of the traffic 
in intoxicating liquors, although the subject may already be provided 
for by the general laws of the state. And a municipal charter or its 
by-laws may thus, either expressly or by necessary implication, 
supersede the general laws on the subject, within the limits of the 
corporation.1 It is entirely in accordance with the principle of local 
1 Davis v. State, 2 Tex. App. 425; 
Comm. v. Fredericks, 119 Mass. 199; 
State v. Harper, 42 La. Ann. 312, 7 
South. Rep. 446; Mason v. Trustees, 4 
Bush, 406; St. Paul v. Troyer, 3 Minn. 
291, (Gil. 200;) Moundsville v. Fountain, 
27 W. Va. 182. 
260 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 217 
self-government, so thoroughly recognized in our political systems, 
that the power to enact police regulations, on a matter so closely 
connected with the good order and prosperity of a city, should be 
lodged with those best qualified to judge of the measures adapted to 
meet the exigencies of their particular situation. To refer this power 
to the cities and towns is indeed a delegation of legislative power. 
But municipal corporations are subordinate agencies of government, 
political in their character and purpose, and organized as a part of 
the governmental framework of the state. Hence, within proper 
limits, it is competent for the legislature to invest them with the 
authority necessary to the administration of the special purposes of 
their creation. As to any inconsistency between the grant of power 
in a municipal charter and the general law of the state previously in 
force, it must be remembered that the incorporation of a municipality 
is an act of legislation, as much so as the passing of a statute on 
any other subject. And hence the law conferring such power upon 
the municipality must be regarded only as a more recent and com- 
petent expression of the legislative will.2 Even where the constitu- 
tion expressly forbids the legislature to authorize a municipal corpo- 
ration to pass a law inconsistent with the general laws of the state, 
it is held that a statute is valid which empowers a municipality to 
entirely prohibit the liquor traffic, although it is not absolutely pro- 
hibited by the general law in force in the state.8 And such entire 
prohibition, by municipal ordinance, so long as the special power is. 
not inhibited or revoked, is not to be regarded as contrary to public 
policy.4 It is further to be remarked that as municipal corporations, 
are always under the direct control of the legislature, that body may 
at any time take away the powers which it has granted to them. 
Thus, it may repeal all laws giving authority to a municipality to 
grant licenses for the sale of liquor, although those laws had appro- 
priated the money derived from license fees to some specific municipal 
purpose.6 
2 State v. King, 37 Iowa, 462. 
8 Ex parte Cowert, (Ala.) 9 South. Rep. 
225. 
4Gunnarssohn v. Sterling, 92 Ill. 569. 
BGutzweller v. People, 14 Ill. 142. 
261 § 219 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
§ 218. Limits of Legislative Power in This Regard. 
In delegating to municipal corporations the power to regulate the 
liquor traffic, the legislature must of course act in accordance with 
the express terms of the constitution. For instance, where total pro- 
hibition is incorporated in the organic law of the state, the legisla- 
tive body cannot authorize municipalities to grant licenses. So, if 
the constitution inviolably devotes the moneys derived from license 
fees to the school funds, any city charter or other enactment attempt- 
ing to divert these revenues to any other object is void.6 So, if the 
legislature is forbidden to pass any act "regulating the internal affairs 
of cities," the power may be conferred upon the municipality, but the 
machinery for its exercise cannot be prescribed.7 Yet a general act, 
for the establishment of an excise department in the cities of the 
state, is held to be a grant of original power to a municipal depart- 
ment the creation of which is intrusted to the municipality itself, and 
not a delegation of power to the municipality, to be by it passed over 
to a body of its own creation.8 Again, as a rule, the legislature can- 
not confer upon a municipality a power which is to be exercised 
beyond its own territorial limits. But a grant of authority to exact 
a fee from any person retailing liquor within a distance of one or two 
miles from the city, is held to be a police regulation, having reference 
to the peace and good order of the local community, and therefore 
not unconstitutional.9 
§ 219. Uniformity in Grant of Power not Required. 
It is no objection to the delegation to municipal corporations of the 
power to regulate the liquor traffic that it may result in the preva- 
lence of different systems or policies in different parts of the state. 
The municipal corporations of a state are quite generally divided into 
classes, according to their population or their mode of organization, 
6 Yazoo City v. State, 48 Miss. 440. 
7 State v. Camden, 40 N. J. Law, 156. 
8 State v. City of Trenton, 51 N. J. 
Law, 498, 18 Atl. Rep. 116. 
9Falmouth v. Watson, 5 Bush, 660; 
Lutz v. Crawfordsville, 109 Ind. 466, 10 
N. E. Rep. 411. 
262 Ch. 10] 
§ 220 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
and it is well settled that any law which equally affects all the towns 
or cities in a particular class is "uniform" in the constitutional sense. 
And when the subject-matter is one of police, it may well happen 
that a different principle of classification than that by population 
will be proper. For example, in Ohio, it is held that a statute which 
authorizes incorporated villages having within their limits a college 
or university to provide against the evils resulting from the sale of 
intoxicating liquors therein, is valid and constitutional, inasmuch as 
the classification of municipal corporations thereby established is just 
and reasonable.10 
§ 220. Extent of Power Delegated. 
The legislative body of a municipal corporation is a body possess- 
ing defined and limited powers. When the validity of any of its acts 
is in question, its authority must be sought in the municipal charter, 
or in the general act under which the incorporation was had, or in the 
general statutes defining the powers of municipalities. "It is a general 
and undisputed proposition of law," says Judge Dillon, "that a munic- 
ipal corporation possesses and can exercise the following powers, 
and no others: First, those granted in express words; second, those 
necessarily or fairly implied in or incident to the powers expressly 
granted; third, those essential to the declared objects and purposes 
of the corporation-not simply convenient, but indispensable." 11 
Hence it follows that towns and cities have no power to adopt ordi- 
nances for the prohibition or regulation of the sale of liquor, unless 
expressly authorized thereto, or unless such ordinances fairly and 
legitimately fall within the scope of the powers conferred upon them 
in general terms.12 Thus, authority to "license saloons, taverns, and 
eating-houses," by municipal ordinance, does not embrace the sale 
of liquor.13 So, an ordinance prohibiting such sale within three miles 
30 Bronson v. Oberlin, 41 Ohio St. 476, 
52 Am. Rep. 90. See, also, Burckholter 
v. McConnellsville, 20 Ohio St. 308. 
111 Dillon, Munic. Corp. § 89. 
32 Carr v. Fowler, 74 Ind. 590; State v. 
Brittain, 89 N. Car. 574; Sanders v. 
Town Comm'rs, 30 Ga. 679; Comm. v. 
Voorhies, 12 B. Mon. 361; Salt Lake 
City v. Wagner, 2 Utah, 400. 
13Mount Pleasant v. Vansice, 43 Mich. 
361, 5 N. W. Rep. 378, 38 Am. Rep. 193. 
263 § 220 
[Ch. 10 
LAW OF INTOXICATING LIQUORS. 
of the corporate limits is void, unless specially authorized by the leg- 
islature.14 And where the general law empowers cities to "regulate 
or prohibit the sale of intoxicating liquors," a city cannot pass an 
ordinance authorizing the forfeiture or destruction of liquors kept for 
sale in violation of its ordinance.15 So where the charter empowers 
the council to declare the keeping of liquor on hand for sale to be a 
nuisance, this does not carry with it the power to make it an offense 
for any person to have in his possession any intoxicating liquors.18 
But on the other hand, the powers of a municipality, in this 
regard, will often be aided by proper implications from the general 
terms employed by the legislature, or by a consideration of the spirit 
and purpose of the statute. In illustration of this principle, where 
the law authorizes municipal corporations to exact licenses from per- 
sons licensed by state or county authority to sell liquor within the 
corporate limits, a city is not restricted to exacting licenses from 
those who have taken out state or county licenses, but its power 
extends to all persons pursuing the business; the intention of the law 
w'as not to exempt from payment of a city license persons violating 
the law by selling without a state or county license.17 And so the 
grant of power, in issuing licenses, to impose upon the applicant the 
oath required by the general laws of the state, impliedly gives the 
power to require the clerk of the applicant to take a similar oath.18 
Similarly, where the charter of a town authorizes it to enact ordi- 
nances "for the preservation of good order, decency, and decorum 
within its limits," and the sale of intoxicating liquors is prohibited 
within the county (excluding the town) as opposed to good order, 
decency, and decorum, an ordinance forbidding the sale of such 
liquor within the town, and prescribing a penalty for its violation, is 
valid.19 But a charter granting regulative or prohibitive power sup- 
poses that the usual means by penalty will be resorted to. The pas- 
sage of an ordinance merely declaring that liquor shall not be sold, 
14 Strauss v. Pontiac, 40 Ill. 301. 
15 Henke v. McCord, 55 Iowa, 378, 7 
N. W. Rep. 623. 
16 Sullivan v. City of Oneida, 61 Ill. 
242. 
17 Lutz v. Crawfordsville, 109 Ind. 
466, 10 N. E. Rep. 411. 
18FIoyd v. Comm'rs of Eatonton, 14 
Ga. 354. 
19 Fortner v. Duncan, (Ky.) 15 8. W. 
Rep. 55. 
264 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 222 
without imposing any penalty for its violation, is not within the 
spirit of the charter.20 
§ 221. Ordinances Partially in Excess of Power. 
Even if a city ordinance, prohibiting sales of intoxicating liquors, 
embraces a class of sales which the city has no power to prohibit, 
it may still be enforced as to such sales as fall within the scope of 
its authority.21 Thus, where the ordinance forbids the sale of malt 
and vinous liquors, which the city may lawfully do, but also pro- 
hibits the sale of spirituous liquors, which is beyond its authority, 
that subject being provided for by the state law, the ordinance may 
be enforced as to the former prohibition, although invalid as to the 
latter.22 So, an ordinance prohibiting generally the sale of liquor, 
although, for want of legislative'authority, it may be void as to drug- 
gists, is not for that reason void as to other persons, if the city has 
authority to forbid sales by them.23 Again, where the law of the 
state allows the sale of liquors in quantities of five gallons and 
upwards without license, an ordinance prohibiting the sale of liquor 
in the city without license, not specifying any quantities, is valid as 
to sales in less quantities than five gallons.24 
§ 222. Conflict of Ordinance with Constitution. 
The legislature cannot confer, nor can any municipal corporation 
claim, the power to pass an ordinance inconsistent with the consti- 
tution of the state. Thus, if the constitution itself contains a prohi- 
bition against the manufacture and sale of intoxicating liquors, no 
city can lawfully license or authorize the sale of such liquors, and 
from the exercise of such a power it may be ousted by proceedings 
in the nature of quo warranto.25 And an ordinance of that character, 
20 Pekin v. Smelzel, 21 Ill. 464. 
21 Harbaugh v. Monmouth, 74 Ill. 367; 
Wagner v. Town of Garrett, 118 Ind. 
114, 20 N. E. Rep. 706. 
22 Eldora v. Burlingame, 62 Iowa, 32, 
17 N. W. Rep. 148; Cantril v. Sainer, 59 
Iowa, 26, 12 N. W. Rep. 753. 
23 Ex parte Cowert, (Ala.) 9 South. 
Rep. 225. 
24 State v. Priester, 43 Minn. 373, 45 
N. W. Rep. 712. 
25 State v. City of Topeka, 30 Kans. 
653, 2 Pac. Rep. 587; s. c., 31 Kans. 452, 
2 Pac. Rep. 597. A city may, in effect, 
265 § 223 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
originally void as in contravention of the constitution, is not made 
valid by the repeal of the constitutional prohibition.26 Nor does the 
removal of the constitutional prohibition, of itself, authorize a town 
council to license drinking saloons under a municipal charter granted 
before the constitutional amendment.27 It is also necessary that 
ordinances should conform to the constitutional guaranties of due 
process of law and protection to private rights. Thus, an ordinance 
which authorizes the town authorities to close a drinking-saloon by 
force, without having it first judicially declared a nuisance and ordered 
to be abated, is invalid.28 But ordinances, like acts of the legislature, 
regulating or prohibiting the traffic in intoxicants, cannot properly 
be said to deprive any person of his liberty or property illegally, 
merely because they impose restrictions on the pursuit of this busi- 
ness, or altogether withhold the privilege of engaging in it.29 And 
if an ordinance prohibits the sale of intoxicating liquors on Sunday, 
it is not to be held in conflict with the constitutional provisions for 
freedom in matters of religion.80 
§ 223. Conflict of Ordinance with General Law. 
The powers conferred upon a municipal corporation must be exer- 
cised in conformity to the general law of the state, unless it is clear 
that the exclusive control of the subject is given to the municipality, 
or that the general law is to be superseded or suspended by the char- 
ter. A statute granting authority to a city to pass ordinances in 
relation to the liquor traffic does not repeal the general laws on that 
subject.81 The rule is, that the municipal ordinances cannot set 
aside, limit, or enlarge the statute law of the state, unless its power 
authorize the sale of liquor, contrary to 
the prohibition of the constitution, by 
the action of its officers, so as to ren- 
der it liable to proceedings against it 
to oust it from the exercise of such 
usurped powers, although not doing so 
directly by granting written or printed 
licenses. State v. Leavenworth, 36 
Kans. 314, 13 Pac. Rep. 591. 
26 Mount Pleasant v.Vansice, 43 Mich. 
361, 5 N. W. Rep. 378, 38 Am. Rep. 193. 
27 Dewar v. People, 40 Mich. 401, 29 
Am. Rep. 545. 
^Baldwin v. Smith, 82 Ill. 162. 
^Tanner v. Alliance, 29 Fed. Rep. 
196; Markle v. Akron, 14 Ohio, 586; 
supra, §§ 37, 45, 127, 128. 
80 Gabel v. Houston, 29 Tex. 335. 
81 Gardner v. People, 20 Ill. 430; State 
266 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 223 
to do so can be shown in express terms or by necessary implication. 
Illustrations of this principle are numerous in the books. Thus, 
unless specially authorized, a city has no power to punish for selling 
liquors the sale of which is already prohibited by state law,32 nor to 
impose, as a condition on the grant of licenses to sell the species of 
liquors over which it has control, that the others shall not be sold on 
the premises nor gambling permitted.33 And if the statute excepts 
certain liquors from its provisions, (as, domestic wine, beer, cider, 
etc.,) an ordinance which would render the exception nugatory, is 
invalid.34 So where the general law permits the sale of liquor in 
quantities above a certain measure, the ordinance cannot increase 
the minimum.35 Under a grant of power to "regulate and license" 
taverns, and to "preserve peace and good order, and prevent vice and 
immorality," a city cannot prohibit the sale of liquor on Sunday, 
when the legislature has prohibited such sale generally.36 And if 
authorized to increase the price of licenses, the city cannot enact a 
penalty for selling without license, when the statute has already 
provided a penalty less in amount, for the same offense.37 Even 
where the city has the exclusive right to grant licenses, the power 
must be exercised in accordance with the requirements of the general 
law; and if that law requires the application to be supported by the 
petition of a majority of the legal voters, this requisite cannot be dis- 
pensed with,38 In Missouri, it is also held that a city ordinance can- 
not abridge the rights of one holding a license issued previous to its 
adoption, as he has a vested right in the privilege until the expira- 
tion of the period for which his license runs.39 But on the other 
hand, if supported by a sufficient grant of power, municipal corpora- 
tions may make more detailed or more stringent regulations, on the 
subject of the sale of intoxicants, than those imposed by the general 
v. Witter, 107 N. Car. 792, 12 S. E. Rep. 
328. 
32 Foster v. Brown, 55 Iowa, 686, 8 N. 
W. Rep. 654. 
83 New Hampton v. Conroy, 56 Iowa, 
498, 9 N. W. Rep. 417. 
34Thompson v. Mt. Vernon, 11 Ohio 
St. 688. 
35 Adams v. Albany, 29 Ga. 56. But 
compare Byers v. Olney, 16 Ill. 35. 
36 Loeb v. Attica, 82 Ind. 175, 42 Am. 
Rep. 494. 
37 Schroder v. City Council, 2 Treadw. 
Const. 726. 
38 House v. State, 41 Miss. 737. 
39 Hannibal v. Guyott, 18 Mo. 515. 
But see, supra, £§ 127, 128. 
267 § 224 
[Ch. 10 
LAW OF INTOXICATING LIQUORS. 
laws of the state.40 And an ordinance, though following a line par- 
allel to that of the statute, will be sustained as valid, provided only 
that there is no necessary inconsistency between the two.41 Where 
a law, to become operative at a future day, fixes the price of liquor 
licenses at not less than a certain sum, a city may so change its 
ordinances as to provide for the issue of licenses before that day for 
a less sum. It cannot be contended that the action of the city is 
void because intended to evade the law, even though such was the 
intention.42 
§ 224. Repeal of Ordinance by Subsequent Statute. 
Whenever a change of policy takes place in the state on the sub- 
ject of its liquor legislation, by the adoption of a different system,- 
as when general prohibition, or prohibition for particular localities, 
is enacted by a constitutional amendment or general statute, or 
when the legislature provides a uniform and general system for the 
licensing of the traffic,-this has the effect to repeal all inconsistent 
provisions in municipal charters and the ordinances adopted under 
them.43 Thus, when the provisions of a local option law are adopted 
by popular vote in a county, a city in said county, previously invested 
with full and exclusive power to regulate the sale of intoxicating 
liquors, is thereby divested of all authority to make ordinances 
regulating or legalizing such sale.44 But in a case in Connecticut, 
where it appeared that a city by-law forbade the keeping open of 
liquor-saloons after half-past ten o'clock in the evening, and after- 
wards a state law prohibited the keeping open of such places after 
midnight, and repealed all laws inconsistent with it, it was held that 
the city ordinance was superseded by the state law only in its appli- 
cation to persons licensed under the latter, and that, in a prosecution 
under the ordinance, it must be shown affirmatively in defense that 
defendant was so licensed.46 
40 Pekin v. Smelzel, 21 Ill. 464. 
41 Mayson v. Atlanta, 77 Ga. 662. 
42 Swarth v. People, 109 Ill. 621. 
43 Platteville v. McKernan, 54 Wis. 
487, 11 N. W. Rep. 798. See Town of 
Ottawa v. County of La Salle, 12 Ill. 
839; Adams v. Stephens, 88 Ky. 443, 11 
S. W. Rep. 427. 
44 Turner v. City of Forsyth, 78 Ga. 
683, 3 S. E. Rep. 649. 
45 State v. Brady, 41 Conn. 588. 
268 Ch. 10] 
§ 225 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 225. Co-Ordinate Authority of State and Municipality. 
A municipal ordinance and a state statute, relating to the sale of 
liquor, may both stand as operative enactments, although they cover 
the same ground, define the same or similar offenses, or make sim- 
ilar regulations as to the conduct of the business, provided that the 
municipality is fully authorized to take such action, and that there 
is no irreconcilable repugnancy between the two enactments.46 Thus, 
in the absence of any expression, in a municipal charter, clearly indi- 
cative of an intention to confer upon the municipality the exclusive 
power to fine persons selling liquor without license, such persons may 
be punished under the general law of the state, though the measure of 
punishment and the mode of effecting it may be different. But in 
such a case, a fine assessed by either jurisdiction would be a bar to a 
prosecution for the same offense by the other jurisdiction.47 So a 
municipal ordinance prohibiting the sale of liquor as a beverage is 
not inconsistent with a statute prohibiting such sale without a license, 
and a prosecution may be had under either or both of such laws.43 
And so if the statute and the ordinance are both intended to prevent 
the sale of liquor on Sunday, or the keeping open of drinking-places 
on that day, both may be enforced. If they cover the same ground 
exactly, the penalties prescribed may be regarded as cumulative. If 
they relate to different hours of the day, or to different acts of the 
defendant, (as, "selling" and "keeping open,") they may be consid- 
ered as creating distinct offenses, each punishable under the appro- 
priate enactment.49 And the imposition of a state tax upon the sale 
of liquor does not preclude the state from authorizing an additional 
imposition of a municipal tax.60 
46 Bailey v. State, (Nebr.) 47 N. W. 
Rep. 208. See, also. State v. Francis, 
95 Mo. 44, 8 S. W. Rep. 1; State v. Lang- 
don, 29 Minn. 393, 13 N. W. Rep. 187. 
47 Wightman v. State, 10 Ohio, 452. 
48 Hill v. Dalton, 72 Ga. 314; State v. 
Langdon, 31 Minn. 316, 17 N. W. Rep. 
859; Ambrose v. State, 6 Ind. 351. 
49 Village of Cohoes v. Moran, 25 
How. Pr. 885; Thon v. Comm., 31 Gratt. 
887; Angerhoffer v. State, 15 Tex. App. 
613; Craddock v. State, 18 Tex. App. 
567. 
60 Wolf v. Lansing, 53 Mich. 367, 19 
N. W. Rep. 38. 
269 § 226 
[Ch. 10 
LAW OF INTOXICATING LIQUORS. 
§ 226. Grant of Exclusive Power to Municipality. 
In some of the states, the legislative policy has been to confide the 
regulation or prohibition of the sale of liquor exclusively to the 
authorities of the municipal corporations. The grant of such power, 
while undoubtedly valid, is not to be presumed. Nothing short of 
an explicit declaration of the legislative will in that behalf will suffice 
to endow the municipalities with entire control over the subject, to 
the exclusion of all other authorities.61 But where such power has 
been given, it will suspend or supersede all extraneous right to inter- 
fere in the management of the particular subject. Thus, if the 
legislature has declared that incorporated towns shall have the exclu- 
sive privilege of granting licenses, the county authorities have no 
power or right to interfere, in any manner whatever, with the subject; 
and the refus. of a town to grant any licenses does not confer power 
upon the county authorities to issue them.62 Further, the exercise 
by a municipality of such exclusive power granted to it will have the 
effect to supersede or suspend the general law of the state on the 
same subject-matter. So that a person who brings himself within 
the law, by fully complying with all the regulations adopted by the 
municipal corporation, is not amenable to the general law, nor punish- 
able for acts which, without the protection afforded by the ordinance, 
would be violations of the statute.63 This principle is well illustrated 
by the case of Huffsmith v. People.64 It there appeared that a statute 
had been enacted prohibiting the keeping open of tippling-houses on 
Sunday. Subsequently, a city charter was granted, conferring upon 
the city "exclusive power to license, tax, restrain, prohibit, and sup- 
press tippling-houses" in the city. The city enacted an ordinance 
prohibiting the keeping open of any place for the sale of intoxicating 
61 Territory v. Webster, 5 Dak. 351, 
40 N. W. Rep. 535; Licks v. State, 42 
Miss. 316. 
62 Coulterville v. Gillen, 72 Ill. 599; 
Trustees of Clintonville v. Keeting, 4 
Denio, 341; Phillips v. Tecumseh, 5 
Nebr. 312. 
68 Camp v. State, 27 Ala. 53; Comm. 
v. Luck, 2 B. Mon. 296; Bennett v. Peo- 
ple, 30 Ill. 389; Hetzer v. People, 4 Colo. 
45; State v. Wheeler, 27 Minn. 76, 6 
N. W. Rep. 423; State v. Nolan, 37 
Minn. 16, 33 N. W. Rep. 36. 
64 8 Colo. 175, 6 Pac. Rep. 157, 54 Am. 
Rep. 550. 
270 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 227 
liquors "between midnight and five o'clock A. M. of the day follow- 
ing." The defendant was convicted under the statute of keeping 
open a tippling-house on Sunday in that city. It was held that the 
conviction could not be sustained, because the general statute was 
superseded as to that city. Exclusive power of this character, granted 
to a city by its charter or a general act, is to be exercised by the 
enactment of ordinances. Until this is done the subject remains 
without regulation. For example, if the city has exclusive power to 
provide for the granting of licenses, no one can lawfully engage in 
the traffic, within its limits, until this power is exercised by ordinance. 
For until that time, no application can be made, and no other steps 
taken towards the procurement of a license.66 
§ 227. Power to Regulate does not Include Power to 
Prohibit. 
The difference between "regulation" and "prohibition" is clear and 
well marked. The former contemplates the continuance of the sub- 
ject-matter in existence or in activity; the latter implies its entire 
destruction or cessation. The extent of the power granted to a munic- 
ipal corporation is to be determined by an examination of the words 
of the charter or statute embodying the grant of authority. Com- 
bining these two principles, we deduce the rule that if a municipality 
is expressly empowered to "regulate" the sale of liquor within its 
limits, or to "license" or "tax" the traffic, this does not include the 
power to pass ordinances entirely prohibiting such sale or traffic. 
And this is the conclusion which all the authorities have reached.66 
But true regulation of the sale of intoxicants is not inconsistent with 
a partial or qualified prohibition.67 And hence, under a power to 
"restrain intoxication and provide for the good order of the city," 
the sale of liquor on particular days or at particular places may be 
66 State v. Andrews, 11 Nebr. 523, 10 
N. W. Rep. 410. 
56 Sweet v. Wabash, 41 Ind. 7; Hill v. 
Comm'rs, 23 Ga. 203; Ex parte Reyn- 
olds, 87 Ala. 138, 6 South. Rep. 335; 
Ex parte City of Anniston, (Ala.) 7 
South. Rep. 779; Tuck v. Town of 
Waldron, 31 Ark. 462; State v. Harper, 
42 La. Ann. 312, 7 South. Rep. 446. 
67 Provo City v. Shurtliff, 4 Utah, 15, 
5 Pac. Rep. 302. 
271 [Ch. 10 
§ 227 
LAW OF INTOXICATING LIQUORS. 
forbidden, although a general and entire prohibition would be 
unauthorized.68 In accordance with the general principle, it is held 
that an ordinance entitled "regulating the use and sale of intoxi- 
cating liquors," but consisting in its substance entirely of prohibi- 
tion, is not valid.69 And so an authority to a municipal corpora- 
tion to license lager-beer saloons does not carry with it the right 
to prohibit the sale of beer by the quart.60 And what the munic- 
ipality cannot do directly, by a prohibitory ordinance, it cannot do 
indirectly, by imposing a license fee or a tax so high in amount 
as to be virtually equivalent to prohibition. But in this connec- 
tion, the reasonableness of the sum charged must be considered in 
connection with the nature of the business and other pertinent cir- 
cumstances, and the courts will not be hasty in declaring a license 
fee to be prohibitive in its nature, unless it is clearly and obviously 
designed to prevent all persons from seeking licenses. For example, 
it is said that it cannot be assumed judicially that a city ordinance 
requiring the payment of fifty dollars every ninety days, for the privi- 
lege of retailing spirituous liquors, is a virtual prohibition of the 
sale of such liquors.61 
On the other hand, the terms of the grant of power to a munici- 
pality may be so comprehensive as to include the authority necessary 
for entire prohibition. Thus, if the city has power to license and 
regulate retail liquor-selling, to annul and revoke licenses for cause 
shown, to close up retail establishments for such time as may be 
deemed necessary, and to prevent liquor-selling whenever deemed 
expedient, it is a fair inference that it may absolutely prohibit the 
sale of liquor.62 And where a village board is specifically authorized 
to "license, regulate, and prohibit" the sale of intoxicating liquor, 
they may, by ordinance, provide for the issuing of licenses in one 
part of the village and prohibit the sale of liquor in another part, if 
the discrimination as to places be not arbitrary and unreasonable.63 
68 Portland v. Schmidt, 13 Oreg. 17, 6 
Pac. Rep. 221. 
69 Cantril v. Sainer, 59 Iowa, 26,12 N. 
W. Rep. 753. 
60 State v. Garon, 50 N. J. Law, 358,13 
Atl. Rep. 26. 
61 Ex parte Hurl, 49 Cal. 557. 
62 In re Jones, 78 Ala. 419. 
63 People v. Cregier, (Ill. Sup.) 28 N. 
E. Rep. 812. 
272 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 228 
And so, authority in the charter of a city to "restrain, prohibit, and 
suppress" dram-shops, will sustain an ordinance licensing such houses 
and prescribing penalties for keeping one without a license. "The 
word 'restrain' is not synonymous with 'prohibit' or 'suppress.' 
It does not contemplate an absolute destruction of the business, but 
rather a placing it within bounds." 64 
§ 228. Power Granted to Municipality cannot be Del- 
egated. 
As a general rule, where power is conferred upon a municipal cor- 
poration to regulate any calling or business, it is without power to 
delegate its discretionary authority to others, or to any individual. 
Such bodies are created to aid the government in the preservation 
of good order, and to protect more effectually persons in the partic- 
ular community from injuries and annoyances that cannot be so 
readily guarded against by the general laws of the state. Their pow- 
ers are conferred with the intention that they shall be exercised by 
the body created, and in the mode prescribed. And any departure 
from such authority, or any attempt by the body to transfer their 
powers to others, is unwarranted. Hence, if the charter of a city 
confers the power to license and regulate the sale of liquor upon the 
city council, this manifestly intends that the power shall be exercised 
by the council itself, under reasonable and proper ordinances, and 
not that they shall authorize an individual or officer to grant or refuse 
a license, or to fix the amount which should be paid for a license. 
And the council cannot delegate such power to the mayor.65 In the 
proper exercise of the charter power, the city council should adopt 
general ordinances, prescribing a general rule by which licenses may 
be obtained. They might, no doubt, prescribe the character of per- 
64 Emporia v. Volmer, 12 Kans. 622. 
But in New Jersey, where a certain 
town was empowered by its charter to 
make ordinances "to license, regulate, 
and prohibit inns and taverns, and to 
prohibit all traffic in or sale of intoxi- 
cating drinks, " it was held, that the 
power was only to prohibit, and not to 
regulate, the sale of liquor. State v. 
Fay, 44 N. J. Law, 474. 
66 East St. Louis v. Wehrung, 50 Ill. 
28; Darling v. St. Paul, 19 Minn. 389, 
(Gil. 336;) In re Wilson, 32 Minn. 145, 
19 N. W. Rep. 723; City of Kinmundy 
v. Mahan, 72 Ill. 462; State v. Kantler, 
33 Minn. 69, 21 N. W. Rep. 856. 
INTOX.LIQ. 18 
273 § 229 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
sons who might or might not obtain licenses; or they might, in their 
regular or called meetings, in such manner as they might ordain, 
grant such licenses. The ordinance should be of that general char- 
acter that all persons coming within its requirements should be enti- 
tled, by complying with its provisions, to receive a license. And the 
amount to be paid should be determined by ordinance or order of the 
council, and not left within the discretion of a single officer of the 
city.66 And on the same principle, an ordinance restricting the busi- 
ness of liquor-selling to certain districts of the city "to be designated 
by the mayor," is invalid in respect to the attempted restriction.67 
§ 229. Power of Municipality to Require Licenses. 
"The grant of a license," says Judge Cooley, "may be made by the 
state directly, or it may be made indirectly through one of the munic- 
ipal corporations of the state. Of the indirect grant, it is to be 
observed that a municipal corporation as such has no inherent power 
to grant licenses or exact license fees; it must derive all its authority 
in this regard from the state, and the power must come by direct 
grant and cannot be taken by implication."68 It follows, therefore, 
that if a city or town is not empowered by its charter, or by a law of 
the state applicable to municipal corporations, to require a license of 
any person for selling intoxicating liquor within its limits, any attempt 
to impose such a condition on the business is unauthorized and 
nugatory, since the necessary powrer could be derived from no other 
source.69 But on the other hand, if adequate authority is granted 
to the municipality, it may undoubtedly provide for the issuing of 
licenses to suitable persons, and prohibit, under penalties, the sale of 
liquor by unlicensed persons; and an ordinance intended to effect 
these objects is not open to objection as being in restraint of trade, 
nor as depriving the citizen of his liberty, rights, or property.70 The 
66 East St. Louis v. Wehrung, 50 Ill. 
28. 
67 State v. Kantler, 33 Minn. 69, 21 N. 
W. Rep. 856. 
68 Cooley, Taxation, 597. 
69 Deutschman v. Charlestown, 40 
Ind. 449; Steinmetz v. Versailles. Id. 
249; Martinsville v. Frieze, 33 Ind. 507. 
70 City of Rochester v. Upman, 19 
Minn. 108, (Gil. 78;) Lawrenceburg v. 
Wuest, 16 Ind. 337; Cheny v. Shelby- 
ville, 18 Ind. 84; Ex parte Schneider, 11 
Oreg. 288, 8 Pac. Rep. 289. 
274 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 229 
prohibition of the sale of liquors without the required license will be 
valid and operative, notwithstanding such sale is not prohibited by 
the laws of the state.71 And conversely, although the statute may 
make it an offense to sell without a license from the state or county, 
this does not interfere with the power of the municipality, if duly 
authorized, to provide a license system of its own, and enact penal- 
ties for its violation.72 When it is intended to confer this power 
upon a municipal corporation, the appropriate word to use in its char- 
ter is without doubt the word "license." But there are certain other 
terms, frequently found in this connection, which, though less directly 
significant of the legislative intention to grant the power in question, 
have been held sufficient to convey it. Thus, it appears that power 
given to "restrain and prohibit" the sale of liquor includes the power 
to license persons or houses for such sale and to impose a penalty for 
pursuing the business without license.73 And the same consequence 
is deduced from a grant of power to "regulate or prohibit" the sale 
of liquor and to "impose a tax on such sale."74 And power given to 
a municipality either to "tax" or to "restrain" such sale is held to 
carry with it the authority to grant licenses therefor.75 As to the 
power of a municipality, under such a grant of authority, to regulate 
the sale of liquor at wholesale, or to fix the quantity which shall 
determine the difference between wholesale and retail, there is some 
conflict among the authorities. In Illinois, it is held that an ordi- 
nance requiring a license to legalize the sale of spirits or wine in 
quantities of a gallon or more at a time, is authorized and valid.76 
But in Minnesota, where the state law authorizes sales in quantities 
of five gallons and upwards without license, it appears that the ordi- 
nances of municipalities must observe the same distinction, although 
their validity, in this respect, cannot be questioned by one who is 
71 City of Burlington v. Kellar, 18 
Iowa, 59. 
72 City of Elk Point v. Vaughn, 1 
Dak. 113, 46 N. W. Rep. 577; State v. 
Pfeifer, 26 Minn. 175, 2 N. W. Rep. 474; 
State v. Fleckenstein, 26 Minn. 177, 2 
N. W. Rep. 475. 
73St. Louis v. Smith, 2 Mo. 113; Em- 
poria v. Vclmer, 12 Kans. 622. 
74 Keokuk v. Dressell, 47 Iowa, 597. 
But compare Burlington v. Bumgard- 
ner, 42 Iowa, 673. 
76 Town of Mt. Carmel v. Wabash Co., 
50 Ill. 69. 
76 Ammon v. Chicago, 26 Ill. App. 
641; Dennehy v. Chicago, 120 Ill. 627, 
12 N. E. Rep. 227. 
275 § 230 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
proceeded against for an unlicensed sale in a quantity below that 
limit.77 The power of a municipal corporation to regulate the liquor 
traffic, being a branch of the police power, extends no further than is 
necessary for the protection of the particular community. But a 
licensing ordinance is effective as against one selling liquor within 
the territorial jurisdiction of the municipality, though outside its cor- 
porate limits, and though the seller himself is a resident of another 
township.78 Where a municipality has power to provide for a sys- 
tem of licenses, it has also, by necessary implication, the power to 
make such provisions as will tend to restrict the grant of licenses to 
persons who are suitable to be intrusted wfith the privilege, and to 
secure the lawful and orderly conduct of the business. Thus, it may 
require the applicant for a license to "produce the written recommen- 
dation of four of his nearest neighbors."79 And it may also require 
licensees to furnish a bond.80 And it has power to provide that the 
sale of liquor without a license shall be a punishable offense.81 Finally, 
it is to be remarked that a city ordinance generally prohibiting the 
sale of liquor, under a penalty, will be repealed by a later ordinance 
prohibiting its sale without a license.82 
§ 230. Power to Exact License Fees. 
If a municipal corporation, by its charter or a general la tv, is 
invested with power to require liquor-dealers to take out a license, 
it also has the authority to require the payment of a fee for the priv- 
ilege, and to fix the amount of the same witbin reasonable limits.83 
But if the sum chargeable for license fees is not left to the discretion 
77 State v. Priester, 43 Minn. 373, 45 
N. W. Rep. 712. 
78 Emerich v. Indianapolis, 118 Ind. 
279, 20 N. E. Rep. 795. 
79 Whitten v. Covington, 43 Ga. 421. 
Where the privilege is restricted to 
male inhabitants of the state, a person 
answering that description, being pros- 
ecuted for selling without license, can- 
not complain that an unjust discrimina- 
tion is made against women and non- 
residents. Wagner v. Garrett, 118 Ind. 
114, 20 N. E. Rep. 706. 
80 Ex parte Schneider, 11 Oreg. 288, 8 
Pac. Rep. 289. 
81 Schweitzer v. Liberty, 82 Mo. 309. 
82 Barton v. Gadsden, 79 Ala. 495. 
83Portland v. Schmidt, 13 Oreg. 17, 6 
Pac. Rep. 221; In re Stuart, 61 Cal. 374; 
Ex parte Wolters, 65 Cal. 269, 3 Pac. 
Rep. 894. 
276 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 230 
of the municipal authorities, but is regulated, in respect to its maxi- 
mum amount, by the provisions of the charter or statute, it is plain 
that the corporation cannot act in excess of its authority, and an 
ordinance attempting to impose a higher license fee than the munic- 
ipality had lawful power to exact would be invalid.84 Further, the 
mode of fixing or estimating the amount chargeable must follow the 
terms of the grant of power. To illustrate, where a city is empow- 
ered to exact license fees "from each brewer or distiller, not less than 
$50, nor more than $500," and to "grade, class, and fix the rate of 
license within the minimum and maximum amounts designated," 
and it passes an ordinance requiring brewers to pay "one-tenth of 
one per cent, on the amount of liquor manufactured," with a proviso 
that each brewer shall be required to pay at least $15 per annum, 
such ordinance is unauthorized and invalid, by reason of its want of 
conformity to the statutory grant of power.85 As a rule, the confer- 
ring upon a municipal corporation of the power to license the sale of 
liquor, does not contemplate the employment of this species of taxa- 
tion as a means of raising revenue, but only as a police regulation 
for the protection of the good order and public interests of the commu- 
nity. But a provision in a city charter giving the common council 
power to regulate the sale of liquors, and to fix the amount to be paid 
for licenses, and directing that the money received for licenses shall 
be paid to the treasurer for the use of the city, is held to confer the 
taxing power for revenue purposes.86 An ordinance raising the 
amount of the license fee is not retroactive in declaring that all sales 
made thereafter without the payment of the additional fee are ille- 
gal.87 Further, the power to impose a license fee includes the power 
to provide for its collection, as by designating the person to whom 
84Drew Co. v. Bennett, 43 Ark. 364; 
State v. Chase, 33 La. Ann. 287. Where 
cities were authorized to demand a 
license fee for the sale of intoxicating 
liquors of not more than $250, and a 
city ordinance provided for a license 
fee of $250, and for a fee of $1 to the 
clerk issuing the same, held, that one 
who refused to take out a license, and 
continued to sell, in violation of the 
ordinance, would not be heard to com- 
plain that the fee of $1 was in excess 
of the authority granted to the city. 
Moore v. Indianapolis, 120 Ind. 483, 22 
N. E. Rep. 424. 
85Kniper v. Louisville, 7 Bush, 599. 
86 State v. Plainfield, 44 N. J. Law, 
118. 
87 Moore v. Indianapolis, 120 Ind. 483, 
22 N. E. Rep. 424. 
277 § 231 
[Ch. 10 
LAW OF INTOXICATING LIQUORS. 
such fees shall be paid.88 And an ordinance requiring the payment 
of a license fee every ninety days, for the privilege of selling liquor, 
is not unreasonable or unconstitutional.89 But the power of a city to 
license and collect license charges being a delegated police power, the 
legislature retains the power to so amend its charter as to divert a 
part of such license charges into the treasury of the county.90 
§ 231. Limitation of Municipal Power as to Amount of 
Fee Chargeable. 
As a general rule, a grant of power to a municipal corporation to 
license trades or pursuits for police purposes only, must be exercised 
as a means of regulation alone, and cannot be converted into a 
source of revenue. But a license for regulation, in such sum as may 
be reasonably necessary to promote the legitimate objects of the 
police power (which includes the protection of the lives, health, and 
property of citizens, the preservation of the public morals, and the 
maintenance of the peace and good order of the community) in the 
district in which the ordinance is designed to operate, will be held an 
exercise of the police power and not of the power of taxation. In 
determining whether the ordinance is to be construed as an exercise 
of one or the other of these powers, the amount required as the price 
of a license is material. And it is material also in determining 
whether the ordinance is intended for regulation only, or is so exor- 
bitant as to be virtually prohibitive and therefore ultra vires. In the 
case of useful trades or employments, and a fortiori in the case of 
such as are noxious or dangerous, the amount exacted for a license, 
in the exercise merely of the police power, and designed for regula- 
tion only, is not to be confined to the expense of issuing the license, 
but a reasonable compensation may be charged for the additional 
expense of municipal supervision over the particular business or 
vocation at the place where it is licensed; and the courts will not 
scrutinize the amount too narrowly, with the view of adjudging it a 
tax for revenue.91 It is of course impossible to state any precise 
88 Ex parte Lawrence, 69 Cal. 608, 11 
Pac. Rep. 217. 
89 Ex parte Hurl, 49 Cal. 557. 
90 Winona v. Whipple, 24 Minn. 61. 
91 Van Hook v. Selma, 70 Ala. 361; 
Cooley, Const. Lim. 201. 
278 Ch. 10] 
§ 232 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
amount beyond which a license fee would be regarded, in all instances, 
as entering the field of taxation for revenue. This must be deter- 
mined, in each case, with reference to the population, character, and 
peculiar circumstances of the municipality, and the general policy of 
the state with reference to its liquor legislation. In several states, 
it is held that an ordinance fixing the fee for a retail liquor-dealer's 
license at $500, or less, is not unreasonable or objectionably pro- 
hibitory.92 But it has been ruled that a fee of $1000 is too great to 
be merely designed as a regulation, and amounts in effect to prohi- 
bition.93 
§ 232. Differential and Discriminating Rates. 
That the fee for a liquor license is not the same in amount in all 
the municipalities in a state is not a valid objection to a legislative 
grant of power to a city to exact license fees, or to an ordinance 
putting such power into operation. For although taxes must be 
uniform throughout the city levying them, they need not be the 
same throughout different cities.94 And it is also settled that a city 
cannot be required to tax all avocations or pursuits alike, but may 
discriminate against such as are hurtful or dangerous to the com- 
munity, by subjecting them to the payment of a larger license fee 
than is required of others.95 On similar principles, a county ordinance 
regulating the licensing of the liquor traffic, is not invalid because 
it fixes a less rate for selling at a wayside tavern or watering-place 
than in a village or city.96 Furthermore, within the same city, the 
ordinance may properly impose different rates according to the 
locality in which the licensed shop is situated, provided it does not 
discriminate between persons. That is, it may be differential in its 
character, based upon the relative advantages of locality, if it does 
not discriminate as between persons having equal facilities for profit.97 
92 Perdue v. Ellis, 18 Ga. 586; Sweet 
v. Wabash, 41 Ind. 7; Wiley v. Owens, 
39 Ind. 429; City of Elk Point v. Vaughn, 
1 Dak. 113, 46 N. W. Rep. 577. 
w Ex parte Burnett, 30 Ala. 461. 
94 Wiley v. Owens, 39 Ind. 429. 
96 Ex parte Hurl, 49 Cal. 557; Mayor 
of Columbia v. Beasly, 1 Humph. 232, 
34 Am. Dec. 646. 
96 Amador Co. v. Kennedy, 70 Cal. 
458, 11 Pac. Rep. 757. 
97 East St. Louis v. Wehrung, 46 Ill. 
392. 
279 § 233 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
And in Pennsylvania, it is held that a city ordinance dividing liquor- 
dealers into different classes, according to the amount of their sales, 
and imposing a license tax varying in amount according to the class, 
is not in conflict with the provision of the state constitution that 
"all taxes shall be uniform upon the same class of subjects." 98 So in 
Kansas, under the statutes, there is a difference between druggists 
who have permits to sell intoxicating liquors and those who have 
not; and therefore a city may levy a higher license tax on those of 
the former class than on those of the latter.99 
§ 233. Providing for Revocation of License. 
Where power is conferred upon a municipal corporation to prohibit 
entirely the sale of intoxicating liquors, or to regulate or license the 
same, at discretion, it may grant the privilege of selling such liq- 
uors on such terms and conditions as it may see fit to impose, and it 
has ample power to provide, as a condition, that a license granted 
shall be subject to revocation on the violation of any of the statutes 
or ordinances regulating the traffic.100 And where the grant of power 
to the municipality contains a provision to the effect that no license 
shall be granted for a less term than one year, this does not deprive 
the municipal authorities of the right, in the exercise of their power 
of regulation, to revoke a license before the expiration of the year 
for which it was issued.101 In Florida, however, an act was held 
unconstitutional which attempted to invest the boards of county 
commissioners with judicial power to hear, try, and determine com- 
plaints against holders of licenses, and to impose penalties by revok- 
98 Gross v. Allentown. 132 Pa. St. 319, 
19 Atl. Rep. 269. In this case it was 
said: "It is argued here that the grad- 
ing of the license tax according to the 
amount of the annual gross sales is 
illegal, because it is not uniform, (that 
all liquor sellers should be required to 
pay the same amount,) and that, by 
making the amount of sales a basis, it 
is, in effect, an income tax. But this 
is not a taxing of the person of the 
liquor-seller, but of his property, esti- 
mated by the volume of the annual 
sales. A tax of this character, graded 
in the same way, for state purposes, has 
been levied and collected for many 
years. " 
99 Tulloss v. Sedan, 31 Kans. 165,1 Pac. 
Rep. 285. 
100Schwuchow v. Chicago, 68 Ill. 444; 
Sprayberry v. Atlanta, (Ga.) 13 S. E. 
Rep. 197; State v. Rouch, (Ohio,) 25 N. 
E. Rep. 59. 
101 State v. Dwyer, 21 Minn. 512. 
280 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 234 
ing licenses, on the ground that it was an attempt to create courts 
not authorized by the constitution.102 
§ 234. Ordinances Regulating Sale of Liquor. 
When a municipal corporation is invested with power to license 
or regulate the sale of intoxicating liquors, it has the implied author- 
ity to make all such ordinances as may be necessary to make the 
grant of power effectual, and to accomplish the ends of municipal 
good order and public security intrusted to its care. Thus, as a 
necessary incident to the power to license the traffic, it possesses the 
power to prohibit the bartering or giving away of liquor without a 
license.103 So a city ordinance regulating the sale of unfermented 
cider, by prohibiting its sale in less quantities than a gallon, and 
forbidding the drinking of the same at the place of sale, violates no 
private right, and is not an unreasonable restraint of trade.104 So 
also, the municipality may lawfully adopt an ordinance prohibiting 
the sale or gift of intoxicating liquors to an habitual drunkard.105 
And it may make reasonable regulations as to where the sale of 
liquor may be carried on, e. g., within what parts, districts, or pre- 
cincts of the city.106 And power to license places for the sale of 
liquor justifies an ordinance which forbids such sale in unlicensed 
places.107 It is also held that a city may provide that no liquor shall 
be used or kept in any refreshment saloon or restaurant within the 
city for any purpose whatever.108 As to the persons who may be 
accorded the privilege, and the purposes for which they may exercise 
it, the municipality has also a proper measure of discretion. Thus, 
an ordinance prohibiting druggists from selling liquor except for 
medicinal purposes, is within a granted charter power to license, 
regulate, or restrain, and is not unreasonably oppressive or against 
public policy.109 But on the other hand, a grant of authority to pro- 
102 State v. Brown, 19 Fla. 563. 
103 Vinson v. Monticello, 118 Ind. 103, 
19 N. E. Rep. 734. 
104 Lawrence v. Monroe, 44 Kans. 607, 
24 Pac. Rep. 1113. 
105 Woods v. Prineville, 19 Oreg. 108, 
23 Pac. Rep. 880. 
106 In re Wilson, 32 Minn. 145, 19 N. 
W. Rep. 723. 
107 State v. Beverly, 45 N. J. Law, 288. 
State v. Clark, 28 N. H. 176. 
109 Provo City v. Shurtliff, 4 Utah, 15, 
5 Pac. Rep. 302. 
281 § 235 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
hibit tippling-houses or dram-shops does not empower the town to 
forbid sales in any quantity or for any purposes except medicinal 
and mechanical purposes.110 As to the practice and procedure before 
the municipal tribunals, in cases of violations of such ordinances, the 
corporation may make such regulations as it may deem expedient, 
provided that they are not inconsistent with the laws of the state.111 
§ 235. Ordinance Prohibiting Sale on Sunday. 
When a municipal corporation is invested with power to regulate 
and license the sale of intoxicating liquors, and to provide by ordi- 
nance for the peace, good order, and security of the community, it 
has unquestionably the power to command that all bar-rooms and 
drinking-saloons within its limits shall be closed on Sunday, and to 
prohibit, under penalties, the sale of liquor on that day.112 Nor is 
it necessary that the ordinance should except from its operation cases 
of necessity, charity, or conscientious observance of the seventh day 
of the week.113 But where the law of the state authorizes the sale 
of liquor, by licensed innkeepers, to lodgers and lawful travelers on 
Sunday, a city ordinance which prohibits such sales, as between such 
persons is, to that extent, unauthorized and invalid by reason of its 
conflict with the statute.114 Whether the same act of sale may con- 
stitute an offense against both a statute and a municipal ordinance, 
each directed against selling on Sunday, or whether the ordinance 
would be nugatory where the subject was already provided for by the 
state law, is not entirely clear upon the authorities.115 No doubt 
much would depend upon the language of the statute, as showing its 
degree of comprehensiveness, and the terms of the grant of power to 
the-municipality. 
110 Strauss v. Pontiac, 40 Ill. 301. 
111 Jackson v. Boyd, 53 Iowa, 536, 5 
N. W. Rep. 734. 
112Schwuchow v. Chicago, 68 Ill. 444; 
Piqua v. Zimmerlin, 35 Ohio St. 507; 
Nashville v. Linck, 12 Lea, 499; Gabel 
v. Houston, 29 Tex. 335; Minden v. Sil- 
verstein, 36 La. Ann. 912; Megowan v. 
Comm., 2 Mete. (Ky.) 3. 
113Piqua v. Zimmerlin, 35 Ohio St. 
507. 
114 Wood v. Brooklyn, 14 Barb. 425. 
115 See City of Elk Point v. Vaughn, 1 
Dak. 113, 46 N. W. Rep. 577; People v. 
Furman, (Mich.) 48 N. W. Rep. 169; Ex 
parte Peacock, 25 Fla. 478. 6 South. Rep. 
473. 
282 Ch. 10] 
REGULATION OF TRAFFIC BY MUNICIPALITIES. 
§ 236 
§ 236. Prescribing Hours of Closing Saloons. 
In the exercise of its police power for the protection of the public 
peace and tranquillity, and of its power to regulate the liquor traffic, 
a municipal corporation may lawfully provide that all licensed houses 
shall close their doors and cease doing business at a proper and rea- 
sonable hour of the evening. What hour may be designated,-keep- 
ing in view both the right of the citizens to protection against noctur- 
nal disturbances and the right of the licensed vendor to ply his voca- 
tion without unreasonable hindrance,-is a question that cannot be 
determined arbitrarily, but must depend, in some measure at least, 
upon the character, population, and habits of the particular com- 
munity. A regulation which would be reasonable and proper in a 
village of farmers might be quite the reverse in a populous city. 
Ordinances have been held valid which required saloons to be closed 
at eleven o'clock at night,116 or at ten o'clock,117 or even at nine 
o'clock.118 But on the other hand, an ordinance forbidding licensed 
retailers to sell between the hours of six in the evening and six in the 
morning has been thought unreasonable and invalid.119 And so an 
ordinance requiring all such persons to close their doors and cease 
selling whenever "any denomination of Christian people are holding 
divine service" anywhere in the town, is not valid.120 And in another 
case, where the board of police commissioners of a city were author- 
ized to order the closing of all drinking-saloons "temporarily," when- 
ever, in their judgment, the public peace required it, and they issued 
an order that drinking-saloons "be so temporarily closed until further 
notice," it was held that, although the legislature could lawfully con- 
fer the power it had granted, yet the board had authority only to 
118 Decker v. Sargeant, 125 Ind. 404,25 
N. E. Rep. 458. 
117 State v. Washington, 44 N. J. Law, 
605, 45 N. J. Law, 318, 43 Am. Rep. 402; 
Ex parte Wolf, 14 Nebr. 24, 14 N. W. 
Rep. 660; Morris v. Rome. 10 Ga. 532; 1 
Dillon, Munic. Corp. § 400. 
118 Smith v. Knoxville, 3 Head, 245. 
119 Ward v. Greeneville, 8 Baxt. 228. 
Said the court: "We are of opinion that 
a prohibition which deprives a party of 
several hours of daylight, in which he 
is forbidden to exercise a right con- 
ferred by the state, is unreasonable and 
oppressive. " See, also, Grills v. Jones- 
boro, 8 Baxt. 247. 
120 Gilham v. Wells, 64 Ga. 192. 
283 § 237 
LAW OF INTOXICATING LIQUORS. 
[Ch. 10 
close the saloons for a short and definite interval, and consequently 
the order in question was void.121 
§ 237. Prohibiting Employment of Women in Saloons. 
Where a municipal corporation is invested with power to "regulate" 
bar-rooms and drinking-saloons, it is held to be a reasonable and 
proper exercise of this authority to prohibit the employment of women 
in such places.122 In California, however, where the constitution 
provides that no person shall be disqualified by sex from pursuing 
any lawful vocation, a decision has been rendered that an ordinance 
forbidding the proprietors of drinking-saloons to permit any female 
to be there after a certain hour of the evening, is unconstitutional.123 
121 State v. Strauss. 49 Md. 288. 
122Bergiuan v. Cleveland, 39 Ohio St. 
651. 
123 In re Maguire, 57 Cal. 604, 40 Am 
Rep. 125. 
284 Ch. 11] 
§ 238 
LAWS AGAINST ADULTERATION OF LIQUOR. 
CHAPTER XI. 
LAWS AGAINST ADULTERATION OF LIQUOR. 
§ 238. Statutes Prohibiting Adulteration. 
239. Constitutionality of Such Statutes. 
240. Construction and Operation of Statutes. 
241. Oath and Bond against Adulteration. 
§ 238. Statutes Prohibiting Adulteration. 
In many of the states, laws have been enacted against the adul- 
teration of liquor, sold or intended for sale, -with any substance that 
is poisonous in its nature or deleterious to human health. Various 
means have been adopted by different legislatures to accomplish the 
same end. In some jurisdictions, the adulteration of liquor is made 
a criminal offense. Thus, in Massachusetts, the statute is expressed in 
the following very specific terms: "Whoever adulterates, for the pur- 
pose of sale, any liquor used or intended for drink, with Indian cockle, 
vitriol, grains of paradise, opium, alum, capsicum, copperas, laurel 
water, logwood, Brazil wood, cochineal, sugar of lead, or any other 
substance which is poisonous or injurious to health, and whoever 
knowingly sells any such liquor so adulterated, shall be punished by 
imprisonment in the state prison not exceeding three years, and the 
articles so adulterated shall be forfeited."1 A similar statute in 
Connecticut prohibits the manufacture, sale, or keeping for sale of 
any adulterated liquors, under penalty of a fine of not more than 
$250.2 In other states, persons who receive licenses to sell intoxi- 
cating liquors are required to take an oath that they will not adul- 
terate the commodities which they offer for sale, and to furnish a 
bond conditioned upon their due observance of this obligation.3 In 
others, it is enacted that the impure, vitiated, or adulterated condi- 
tion of any liquors sold shall constitute a full defense to an action 
jPub. St. Mass. 1882, c. 208, § 4. 
2Gen. St. Conn. 1888, § 3100. 
3 Acts Tenn. 1859, c. 81, § 4; Levi v. 
State, 4 Baxt. 289; State v. Ferguson, 72 
Mo. 297. 
285 § 240 
[Ch. 11 
LAW OF INTOXICATING LIQUORS. 
for the recovery of their price or value.4 And in still others, a sys- 
tem of inspection is provided, by which it is intended to detect and 
condemn impure articles of this character. 
§ 239. Constitutionality of Such Statutes. 
It is a settled principle of constitutional law that the legislature of 
a state, in the exercise of its police power, has authority to enact rea- 
sonable and proper laws for the protection of the public health. And 
statutes intended to secure the purity and wholesomeness of food prod- 
ucts have, from the earliest times, been adjudged valid. If, there- 
fore, the law-making body has general police control over the liquor 
traffic, and if the use of alcoholic beverages is intimately connected 
with the health of the community, and if, further, the evils which 
such use engenders are, in a considerable degree, aggravated by the 
sale and consumption of doctored and adulterated articles, there is 
no reasonable ground to question the constitutionality of the statutes 
under consideration. These laws cannot, in any proper sense, be said 
to deprive the citizen of his liberty or property without due process 
of law, unless their restrictions are so unreasonable and oppressive 
as to be palpably in excess of the exigencies of the occasion.6 
§ 240. Construction and Operation of Statutes. 
The laws against adulteration, it is held, are intended to reach 
spirituous liquors containing poisonous or deleterious ingredients, and 
prevent the sale of them, whether those ingredients were added to 
pure liquors, or were used in compounding an imitation, or were 
added to the imitation. And it is not necessary to a conviction, under 
their penal provisions, that it should be proved that the defendant 
knew that the liquor was adulterated.6 But in Pennsylvania, where 
the statute provides that, in all actions for the price or value of liq- 
uor sold, the fact that it was impure, vitiated, or adulterated shall 
constitute a good and sufficient defense, it is held that this applies 
4 Act Penna. Mar. 29, 1860. 
5 Ex parte Kohler, 74 Cal. 38, 15 Pac. 
Rep. 436. 
6 State v. Stanton, 37 Conn. 421. 
286 Ch. IV 
§ 241 
LAWS AGAINST ADULTERATION OF LIQUOR. 
only in those cases where the quality or value of such liquor has been 
impaired by the impurity or adulteration.7 In California, there is a 
statute providing that "it is desired and required that all and every 
grower, manufacturer, trader, holder, or bottler of California, when 
selling or putting up for sale any California wine, . . . shall 
plainly stencil, brand, or have printed where it will be plainly seen, 
-first, 'Pure California Wine,' and secondly, his name, or the firm's 
name, as the case may be, on label of bottle or package." It is held 
that this law is merely directory, and no punishment can be inflicted 
for selling pure California wine without such label or brand, or the 
label furnished by the state.8 
§ 241. Oath and Bond against Adulteration. 
In some of the states, as already remarked, persons dealing in the 
sale of liquor are required by statute to take an oath and furnish a 
bond against the adulteration of their commodities. It is held that 
these provisions apply to druggists. They cannot lawfully sell liq- 
uor, even upon a physician's prescription, without taking the stat- 
utory oath not to adulterate.9 And they are not exempted from giv- 
ing the statutory bond, notwithstanding the fact that, by another sec- 
tion of the same statute, they are permitted to mix or adulterate 
liquors in compounding medicines or preparations for mechanical 
uses.10 It is also considered that statutory requirements of this char- 
acter should be closely complied with. For example, where the law 
requires a liquor-seller to take an oath not to "mix or adulterate 
with any substance whatever," it is not a sufficient compliance with 
this provision if he takes an oath not to "mix or adulterate with 
any poisonous substance whatever." 11 These statutes are not to be 
considered as repealed by a later act providing for the inspection of 
liquors offered for sale.12 But where a sale of liquor is made after 
the enactment of an inspection law, but before an inspector is 
7 Clohessy v. Roedelheim, 99 Pa. St. 
56. 
8 Ex parte Kohler, 74 Cal. 38, 15 Pac. 
Rep. 436. 
9 Newman v. State, 7 Lea, 617. 
10 State v. Ferguson, 72 Mo. 297. 
11 Hall v. State, 9 Lea, 574. 
12 State v. Martin, 3 Heisk. 487. 
287 § 211 
LAW OF INTOXICATING LIQUORS. 
[Ch. 11 
appointed and qualified for the particular county or district, the omis- 
sion to have the liquor inspected will not preclude the vendor from 
recovering the agreed price, in an action for that purpose, where it is 
not shown that the liquor was impure or adulterated.13 
13Smith v. Kibbee, 9 Ohio St. 5G3. 
288 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 242 
CHAPTER XII. 
EFFECT OF LIQUOR LAWS ON CONTRACTS AND RIGHTS OF ACTION. 
§ 242. Property in Intoxicating Liquors. 
243. Liquor is a Subject of Larceny. 
244. Action for Wrongful Taking or Conversion of Liquor. 
245. Statute Forbidding Recovery of Possession or Value. 
246. Mortgage of Liquors. 
247. Insurance of Liquors. 
248. No Recovery on Illegal Contract. 
249. No Action for Price of Liquors Illegally Sold. 
250. Proof of Illegality of Sale. 
251. Entire and Divisible Accounts. 
252. Appropriation of Payments on Account Partly Illegal. 
253. Recovery on Liquor Contract by Award. 
254. Revival of Right of Action by Repeal of Law. 
255. Laws Forbidding Credit for Liquor Sold. 
256. Note Given on Illegal Sale of Liquor is Void. 
257. Proof of Illegality of Note. 
258. Consideration of Note Illegal in Part. 
259. Rights of Innocent Holder for Value. 
260. Proof of Character of Holder. 
261. Purchaser of Note after Maturity. 
262. Judgment for Price of Liquor Sold. 
263. Money Paid for Liquor cannot be Recovered Back at Common 
Law. 
264. Executory Contract may be Repudiated. 
265. Statutory Action to Recover Back Payments on Liquor Contracts. 
266. Recovery for Liquors Sold in Another State. 
267. Determination of Place of Sale. 
268. Same; Agent Taking Order. 
269. Knowledge of Buyer's Illegal Purpose not Sufficient to Prevent 
Recovery. 
270. Participation in Illegal Design Defeats Action. 
271. Contract Void where Made Void Everywhere. 
272. Statute Forbidding Recovery on Foreign Sales. 
273. Laws Forbidding Soliciting of Orders. 
274. Contracts against Policy of Liquor Laws. 
275. Avoidance of Leases. 
276. Who may Take Advantage of Illegality. 
INTOX.LIQ.-19 
289 § 242 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
§ 242. Property in Intoxicating Liquors. 
Although intoxicating liquors, by reason of the evils attending their 
misuse or excessive use, are regarded as proper subjects for close 
police surveillance, and are put under the ban of the law whenever 
owned, kept, or transferred for any illegal purpose, it does not follow 
that they are incapable of being lawfully held in possession, or that 
they are not subjects over which ownership can be exercised. On the 
contrary, such liquors, when not held under circumstances to consti- 
tute their possession a nuisance or a penal offense, are property, 
and are entitled to protection as such.1 Even in a state where a gen- 
eral prohibitory liquor law exists, it is possible to own and possess 
intoxicating liquors lawfully. For a person may have purchased such 
property outside the state, intending it for his private consumption, 
or he may have bought it from an authorized agent within the state 
for medicinal or mechanical purposes. Hence, if the liquor was pur- 
chased in another state, the owner may maintain an action against 
a common carrier who was bringing it to him, and by whose fault or 
negligence it was lost or destroyed. And in such action the plaintiff 
is not bound, as against the defendant, to show the lawfulness of his 
ownership. For the presumption against his lawful ownership for a 
proper use could not arise while the liquor was in transit, or until it 
had reached his hands. But if the carrier would defend on the ground 
that the liquor was held for an unlawful purpose, the burden is on 
him to show that the ownership existed under such circumstances as 
to constitute the liquor a nuisance.2 On similar principles, it is held 
that liquors of domestic manufacture, if not kept for illegal sale, are 
subject to taxation like any other species of property.3 And it is no 
defense to an action by one partner against another for conversion of 
1 Brown v. Perkins, 12 Gray. 89. 
2 Bowen v. Hale, 4 Iowa, 430. In a 
later decision in the same state, (Som- 
mer v. Cate, 22 Iowa, 585.) it was held 
that the plaintiff must allege and prove 
that he owned or possessed the liquor 
with lawful intent and not for the pur- 
pose of sale. The court said that "this 
precise question" was not presented or 
determined in Bowen v. Hale. But it is 
difficult to escape the conclusion that it 
wax involved in that case and was rightly 
determined. The later decision is not 
so satisfactory or so well supported by 
principle. 
3 Dunbar v. Boston, 101 Mass. 317. 
290 Ch. 12] 
§ 244 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
partnership property that the firm were unlawfully engaged in sell- 
ing intoxicating liquors.4 
§ 243. Liquor is a Subject of Larceny. 
From the conception of intoxicating liquor as property, it follows 
that it is a subject in respect to which larceny may be committed. 
And the authorities hold that it is not a good defense to an indict- 
ment for stealing such liquor, that the same was bought, kept, owned, 
or intended for sale, in violation of law.6 "It is a principle or rule 
of property, as old as the common law itself, that the possession of 
one is good against all others who cannot show a better right of pos- 
session. Hence he who steals a stolen article of property from a 
thief may be himself convicted, notwithstanding the criminality of 
the possession by his immediate predecessor in crime."6 And it is 
laid down that whatever is produced by wrong is the subject of lar- 
ceny, the same as the products of right.7 A fortiori, money received 
for intoxicating liquors, sold contrary to the inhibitions of a penal 
statute, may be stolen with the same consequences as any other 
money.8 
§ 244. Action for Wrongful Taking or Conversion of 
Liquor. 
We have seen that intoxicating liquor, when not kept for an 
unlawful purpose, has the character of property; and that the title 
of the holder must prevail against any person who cannot show a 
better right to the possession. It follows that the wrongful taking of 
liquor from the possession of a person who is not holding it in viola- 
tion of law is a tort, and the person injured may maintain an action 
against the wrong-doer.9 Thus, in the absence of a statute to the 
contrary, if liquor belonging to one person is seized under an execu- 
4 Howe v. Jolly, (Miss.) 8 South. Rep. 
513. 
6 Comm. v. Coffee, 9 Gray, 139; State 
v. May, 20 Iowa, 305. 
6 State v. May, supra, citing 1 Hale, 
P. C. 507; Ward v. People, 3 Hill, (N. 
Y.) 309. 
7 2 Bishop, Crim. Law, § 690. 
8 Comm. v. Rourke, 10 Cush. 397. 
9 Harrison v. Nichols, 31 Vt. 709. 
291 § 245 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
tion against another person, the owner may properly replevy and 
recover it from the possession of the officer.10 And where a statute 
prohibits the maintenance of suits upon contracts made for liquor 
illegally sold, this will not be construed to prohibit actions of trover 
for the unlawful taking and conversion of such liquor, even though 
the plaintiff founds his possession on a purchase which was in viola- 
tion of law.11 So intoxicating liquors purchased for a lawful pur- 
pose are not liable to attachment in the hands of the purchaser at 
the suit of a creditor of the seller.12 But a vendor, who has sold 
liquor in violation of law, cannot maintain replevin against attach- 
ing creditors of the vendee, or the sheriff executing the process, to 
recover possession thereof, on the ground that, the sale being void, 
he is entitled to such possession. For courts will not assist parties 
to regain what they have parted with for an illegal purpose, and the 
same principle obtains where they seek to recover what they sold in 
violation of law. In pari delicto mclior est conditio possidentis.13 And 
the owner of liquors seized by virtue of a warrant in due form against 
him, under the search and seizure law, cannot replevy them from 
the possession of the officer who executed the process.14 
§ 245. Statute Forbidding Recovery of Possession or 
Value. 
In several of the states, as an adjunct to the prohibitory system 
of liquor legislation, statutes have been enacted forbidding the main- 
tenance of any action for the recovery of the possession or value of 
any intoxicating liquors. If given an effect fully commensurate with 
their broad terms, these statutes would entirely destroy all property 
in such liquors, and would deny a remedy even to an innocent and 
10 Monty v. Arneson, 25 Iowa, 383. 
But the owner of intoxicating liquors, 
suing to recover damages from an of- 
ficer who had been adjudged to have no 
authority for their detention, must al- 
lege and prove that he owned and kept 
them with a lawful intent, and not for 
the purpose of sale contrary to law. 
Walker v. Shook, 49 Iowa, 264. 
11 Sullivan v. Park. 33 Me. 438; Breck 
v. Adams, 3 Gray, 569. 
12Niles v. Fries, 35 Iowa, 41. 
13 Marienthal v. Shafer, 6 Iowa, 223. 
14Musgrave v. Hall, 40 Me. 498; State 
v. Harris, 38 Iowa, 242; Weir v. Allen, 
47 Iowa, 482. 
292 Ch. 12] 
§ 245 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
lawful owner who had been deprived of his possession by a mere 
tort-feasor. But the courts have been unwilling to put such a con- 
struction upon the acts in question. They hold that the statutes 
apply only in cases where the liquors, for the possession or value of 
which the action is brought, were kept for an illegal purpose and 
under such circumstances as to render them liable to seizure and for- 
feiture, or were sold, or intended for sale, in violation of law. Beyond 
this, it is held, the statutes could not constitutionally be carried.15 
Under this construction, it becomes a question of the lawfulness of 
the plaintiff's possession. And in an action of trespass, for example, 
for taking the plaintiff's liquors without legal authority, there can 
be no recovery, if the jury believe that the liquors were intended for 
sale in violation of law.16 This legality of possession, as a requisite 
15 Preston v. Drew, 33 Me. 558, 54 Am. 
Dec. 639; Jones v. Fletcher, 41 Me. 254; 
Lord v. Chadbourne, 42 Me. 429, 66 
Am. Dec. 290; Robinson v. Barrows, 48 
Me. 186. In Preston v. Drew, supra, 
the determination of the court was 
stated and justified in the following 
language: "The court cannot decide 
by an application of the rules of the 
common law, or by the provisions of 
the act, that property cannot be ac- 
quired in spirituous and intoxicating 
liquors. The language of the act, 
which declares that no action shall be 
maintained for the recovery or posses- 
sion of such liquors or their value, is 
without limitation, and, by a literal 
construction, it would deprive one who 
had purchased them of a town or city 
agent, for allowable purposes, of the 
right to maintain an action to recover 
them or their value from a person who 
had taken them from his possession 
without any right or authority, or who 
had wantonly destroyed them. It would 
also deprive the town and city agents 
of all right to maintain an action for 
the recovery of such liquors which had 
been purchased by them for sale ac- 
cording to the provisions of the act, 
and which had been unlawfully taken 
from them or destroyed. It would also 
deprive a person of all remedy for the 
protection of such property by action, 
when procured for his private use and 
not intended for sale, and when he was 
carrying it through the state without 
any intention of sale in this state. Can 
one conclude that an intelligent legis- 
lature could have intended to hold out 
such temptations for the lawless sub- 
traction or destruction of private prop- 
erty? The results are too extraordi- 
nary and unjust to allow an intelligent 
and considerate mind to believe that 
they could have been foreseen and ap- 
proved. The general language must 
therefore be restricted so as to accom- 
plish the general intent and declared 
purpose of the act, without producing 
such results, or the provision now un- 
der consideration must be pronounced 
to be a plain violation of the provisions 
of the constitution, and void. The 
general intent and declared purpose of 
the act would in no degree be infringed 
by regarding the general language to 
be so limited as to forbid the mainte- 
nance of any action for the recovery of 
possession of such liquors or their 
value, which were liable to seizure and 
forfeiture, or intended for sale in vio- 
lation of the provisions of the act. " 
16 Dolan v. Buzzell, 41 Me. 473. 
293 § 246 
LAW OF INTOXICATING LIQUORS. 
[Ch.12 
to the maintenance of the action, must be shown as well by a person 
claiming a special or qualified property in them, when such person 
sues for their conversion, as by the general owner. Thus, under a 
prohibitory law, spirituous liquors cannot legally be attached on 
mesne process or seized on execution, because a public sale of them 
would come within the prohibition of the act. And an attachment 
of such liquors, though made in due form, can confer upon the attach- 
ing officer no special property or right of possession, as his posses- 
sion could only be for the purpose of an unlawful sale. Hence an 
attaching officer, though in the actual possession of such liquors, but 
claiming no rights in them except under the attachment, cannot, 
under the statutes in question, maintain an action for the forcible 
taking of them from his possession, even though such taking be by 
one having no right or authority.17 But in such a case, the attach- 
ment upon the liquors being void, the owner is not prevented from 
recovering them from the officer.18 And at common law, even where 
the liquors were held and intended for illegal sale, the owner may 
maintain trespass upon the unauthorized conversion of them by a 
sheriff.19 In Connecticut, under a statute similar to those we have 
been considering, it is held that the owner cannot maintain replevin 
for liquors which his agent was selling contrary to law, and which 
were levied on by a creditor of the agent.20 And in Vermont, it is 
said that the right of stoppage in transitu cannot be enforced by suit 
as to intoxicating liquors sold contrary to law.21 
§ 246. Mortgage of Liquors. 
The validity of a chattel mortgage upon a stock or quantity of 
intoxicating liquor, presents a question of serious difficulty, and 
one which has not been uniformly decided by the courts. In the first 
17 Nichols v. Valentine, 36 Me. 322. 
18 Barron v. Arnold, 16 R. I. 22, 11 
Atl. Rep. 298. Compare Oviatt v. Pond, 
29 Conn. 479. 
19 Hamilton v. Coding, 55 Me. 419. 
This case is not inconsistent with the 
rulings in Preston v. Drew, Lord v. 
Chadbourne, etc., cited above, because 
it was decided under a later and much 
narrower statute, which limited the de- 
nial of a remedy to actions on claims or 
demands contracted or given for intox- 
icating liquor sold in violation of the 
act. 
20 Donohue v. Maloney, 49 Conn. 163. 
21 Howe v. Stewart, 40 Vt. 145. 
294 Ch. 12] 
§ 246 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
place, while a chattel mortgage is a species of security for a debt, it 
cannot be denied that it is also a conditional sale of the mortgaged 
property, and operates, when valid, to transfer the legal title to the 
mortgagee, to be defeated only by a full performance on the part of 
the mortgagor of all the conditions. Now in some states, all persons 
are forbidden to sell liquor, save for medical and mechanical pur- 
poses, and in others, all persons except those duly licensed. Hence, 
except in a very limited number of cases, it would appear that the 
conditional sale, by way of mortgage of such articles must be unlawful. 
Again, the mortgagee in a valid chattel mortgage has the right to sell 
the property upon condition broken. But if the mortgaged property 
consists of liquor, he could not, except under very exceptional circum- 
stances, exercise this right. Therefore, for want of the means of 
enforcing its terms, the security seems to be a nullity. For these 
reasons, in some of the states, the courts have been led to hold that 
a mortgage of liquors is entirely void for all purposes.22 But in other 
jurisdictions, while the force of the foregoing arguments is not denied, 
it is still considered that such a mortgage must be held good as 
between the parties to it, and as against creditors of the mortgagor, 
(unless fraudulent,) and as possessing sufficient validity to sustain 
an action by the mortgagee against one taking the property from his 
possession without authority.23 In the case cited from Massachusetts, 
it is said that even if the mortgage must be considered a sale, that 
does not in any degree affect the rights of the mortgagee. "Notwith- 
standing the statute, spirituous liquors are still property in this com- 
monwealth. An action may be maintained against a wrong-doer 
who interferes with the possession or property of the owner. A sale, 
even when made under such circumstances as the law forbids, yet 
passes the property to the purchaser. The seller commits an offense 
for which he is punishable, but he does not retain his property in 
the article sold. It has never been held, under any of the statutes 
regulating the sale of spirituous or intoxicating liquors in this com- 
22 Korman v. Henry, 32 Kans. 49, 3 
Pac. Rep. 764; Gerlach v. Skinner, 34 
Kans. 86, 8 Pac. Rep. 257; Flersheim v. 
Cary, 39 Kans. 178, 17 Pac. Rep. 825; 
Hay v. Parker, 55 Me. 355. 
23 Cobb v. Farr, 16 Gray, 597; Baggv. 
Jerome, 7 Mich. 145. See United States 
v. Distilled Spirits, 5 Sawy. 421. 
295 § 248 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
monwealth, that the purchaser was guilty of any offense or was 
particeps criminis. A mortgage is a sale, defeasible upon a condition, 
but it passes the title, subject to the right of redemption. As it is 
not criminal in the buyer to take an absolute title, we cannot see 
that it is criminal in him to take a defeasible title, or that he will 
fail to acquire all the rights of property which such a title usually 
gives." 
§ 247. Insurance of Liquors. 
A stock of intoxicating liquor, although illegally kept for sale, may 
nevertheless be lawfully insured against destruction or damage by 
fire.24 It is true that policies insuring an illegal traffic are held void, 
as in the case of marine policies on unlawful voyages and insurances 
upon lottery tickets. But these cases are not parallel with the case 
we have supposed, because they rest upon the fact that in each 
instance it is made a necessary condition of the policy that the 
illegal act shall be done. If it were attempted to insure a person sell- 
ing liquor against loss by fine or forfeiture, there would be a complete 
analogy between the cases, but not otherwise. When the property 
itself is insured, the risks insured against are not the consequences 
of illegal acts, but of accidents. "By insuring his property, the 
insurance company have no concern with the use he may make of 
it, and as it is susceptible of lawful uses, no one can be held to con- 
tract concerning it in an illegal manner, unless the contract itself is 
for a directly illegal purpose. Collateral contracts in which no 
illegal design enters, are not affected by an illegal transaction with 
which they may be remotely connected."25 
§ 248. No Recovery on Illegal Contract. 
The course of our discussion now brings us to an examination of 
contracts directly connected with the sale or transfer of intoxicating 
liquors, and the effect upon them of statutes regulating or prohibit- 
24 Niagara Fire Ins. Co. v. De Graff, 
12 Mich. 124; Carrigan v. Lycoming 
Fire Ins. Co., 53 Vt. 418, 38 Am. Rep. 
687; Hinckley v. Germania Fire Ins. 
Co., 140 Mass. 38, 1 N. E. Rep. 737. 
^Niagara Fire Ins. Co. v. De Graff, 
12 Mich. 124. 
296 Ch. 12] 
§ 249 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
ing the sale of such articles. And first it is necessary to advert to 
the general principles of law applicable to the subject. It may be 
stated, as a general rule, that contracts are void which are repugnant 
to justice, or founded upon an immoral consideration, or which are 
against the general policy of the common law, or contrary to the 
provisions of any statute, (even where such statute does not expressly 
declare them void, if it enacts a penalty for doing the act which con- 
stitutes the basis of the contract,) and that a party who is obliged to 
trace through such a contract his right to a debt alleged to be due 
him, cannot recover.26 Even if the statute does not provide a penalty 
for the specific act, it is enough to invalidate the contract if the act 
is prohibited. "The fact that a thing is prohibited, if it be in the 
nature of a public wrong, makes its commission an offense, and in 
any view vitiates a contract for its performance. "27 The fundamental 
principle of public policy upon which this rule rests is expressed in 
the maxim, ex dolo malo non oritur actio. No court will lend its aid 
to a man who founds his cause of action upon an immoral or illegal 
act. "It is upon that ground the court goes, not for the sake of the 
defendant, but because they will not lend their aid to such a plain- 
tiff. So if the plaintiff and defendant were to change sides, and the 
defendant was to bring his action against the plaintiff, the latter 
would then have the advantage of it; for where both are equally at 
fault, potior est conditio defendentis."2* 
§ 249. No Action for Price of Liquors Illegally Sold. 
Applying the principles stated in the preceding section, we deduce 
the rule that, wherever the statute prohibits the sale of liquor except 
by a person holding a license or permit, or prohibits the sale alto- 
gether, a sale made by a person not so protected, or made under any 
other circumstances amounting to a violation of law, is void, and the 
seller cannot maintain an action against the purchaser for the price 
262 Parsons, Contr. 673; 1 Wharton, 
Contr. § 363; Pollock, Contr. 253; Hare, 
Contr. 654; Bishop, Contr. § 547; 2 
Benj. Sales, § 818; Melchoir v. McCar- 
ty, 31 Wis. 252. 
271 Wharton, Contr. § 363. 
28 Holman v. Johnson, Cowp. 341. 
297 § 249 
[Ch. 12 
LAW7 OF INTOXICATING LIQUORS. 
or value.29 "It is everywhere held that whenever an indictment can 
be sustained for the illegal sale of liquors or other goods, there the 
price cannot be recovered."30 A party who sells liquor to a man. 
after being notified by the purchaser's wife not to make such sales, 
as provided by statute, cannot recover the price.31 And where the 
owner of liquor intrusts it to an agent, for the purpose of being sold 
by him in violation of law, the former cannot recover the proceeds 
of such sales in an action against the latter.32 On the same prin- 
ciple, a contract between the manufacturers of certain bitters, con- 
taining intoxicating liquor as the chief ingredient, (and therefore 
within the terms of the particular statute,) and a licensed liquor- 
dealer, whereby the latter is supplied with the bitters which he sells, 
with a warranty that they may be sold without a license, is contrary 
to public policy and void, and the manufacturers cannot maintain 
an action for the price.33 So where liquor is sold to a druggist for 
the express purpose of enabling him to retail it as a beverage, in 
violation of law, the price cannot be recovered by suit, even though 
the sale itself was not illegal.34 But where, as under some statutes, 
towns are authorized to sell spirituous liquors for certain purposes, 
this necessarily implies an authority to purchase them, for otherwise 
the law would be nugatory, and consequently an action will lie for 
the price.35 And the fact that a town agent is made liable for pur- 
chasing liquors from any other person than the state agent, does not 
make the party selling in pari delicto, and the latter may recover of 
the town for the liquors so sold.36 It is further to be observed that 
29 Griffith v. Wells, 3 Denio, 226; Cobb 
v. Billings, 23 Me. 470; Lewis v. Welch, 
14 N. H. 294; Boutwell v. Foster, 24 Vt. 
485; Bancroft v. Dumas, 21 Vt. 456; 
Briggs v. Campbell, 25 Vt. 704; Moog 
v. Espalla, (Ala.) 9 South. Rep. 596; 
Vannoy v. Patton, 5 B. Mon. 248; Dol- 
son V. Hope, 7 Kans. 161; Alexander v. 
O'Donnell, 12 Kans. 608; Solomon v. 
Dreschler, 4 Minn. 278, (Gil. 197;) Mel- 
choir v. McCarty, 31 Wis. 252; Bach v. 
Smith, 2 Wash. Ter. 145, 3 Pac. Rep. 
831. See Evans v. Hall, 45 Pa. St. 235. 
30 Jones v. Surprise, 64 N. H. 243, 9 
Atl. Rep. 384, citing Bliss v. Brainard, 
41 N. H. 256. 268; Smith v. Godfrey, 28 
N. H. 384; Caldwell v. Wentworth, 14 
N. H. 431; Lewis v. Welch, Id. 294; 
Pray v. Burbank, 10 N. H. 377. 
31Lorangerv. Jardine, 56 Mich. 518, 
23 N. W. Rep. 203. 
82 Galligan v. Fannan, 7 Allen, 255. 
83 O'Bryan v. Fitzpatrick, 48 Ark. 487, 
3 S. W. Rep. 527. 
34 Kohn v. Melcher, 43 Fed. Rep. 641. 
85 Kidder v. Knox, 48 Me. 551. 
36 Butler v. Northumberland, 50 N. H. 
33. If the town agent was induced, by 
298 Ch. 12] 
§ 250 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
the omission or neglect to comply with statutory conditions after 
a sale,-such as keeping a record of sales, or reporting them to 
designated officers,-though it may expose the seller to penalties, will 
not necessarily invalidate the sale so as to prevent a recovery.37 
And although the statute prohibits sales on Sunday, yet a recovery 
may be had on a promise made on a secular day, to pay for liq- 
uors sold on credit and delivered on Sunday, if the sale was otherwise 
lawful.38 
§ 250. Proof of Illegality of Sale. 
In an action to recover the price of liquors sold, it is not incum- 
bent upon the plaintiff, as a part of his case, to prove that he was 
duly authorized to make the sale, or that the sale was made in conform- 
ity to the restrictions of the law. Illegality, in such a case, is matter of 
defense. And if the defendant would escape liability on this ground, 
the burden is on him to allege and prove that the sale was contrary 
to law. The plaintiff, for example, is not required, in the first 
instance, to show that he has a license to sell, but the pleadings and 
evidence of the defendant must negative the existence of a license, if 
that is the ground of defense.39 In some of the states, there is a 
statutory presumption, arising from the mere delivery of intoxicat- 
ing liquor, that there was an unlawful sale. But this is limited to 
the cases for which it is specially provided, viz., criminal prosecu- 
tions. And therefore it is held that in an action for the rent of a 
tenement alleged by the defendant to have been knowingly let for 
the illegal sale of liquor, the plaintiff is entitled to have the jury 
instructed that the presumption of law is that sales of liquor made 
false representations of the seller that 
he was a state agent, to purchase from 
him, the town, on discovery of the 
fraud, may rescind the contract, if done 
in a reasonable time, by offering to re- 
store what they have received under it, 
or they may ratify and confirm the con- 
tract. Id. 
37 Barnard v. Houghton, 34 Vt. 264. 
^Melchoir v. McCarty, 31 Wis. 252. 
39 Kidder v. Norris, 18 N. H. 532; Ol- 
son v. Hurley, 33 Minn. 39, 21 N. W. 
Rep. 842; Herlock v. Riser, 1 McCord, 
481. Where the defendant does not 
appear, plaintiff is entitled to recover, 
though he gives no evidence of a 
license. In a civil action, the question 
of license arises collaterally, and the 
license will be presumed until evi- 
dence to the contrary. Herein it dif- 
fers from a criminal action, in which 
the license is the main part of defend- 
ant's case. Smith v. Joyce, 12 Barb. 
21. 
299 § 251 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
on the premises were lawful.40 And by analogy, the same instruc- 
tion would be proper in an action for the price of liquor so sold. 
When the defendant alleges that the liquor in question was sold to 
him in a county where the local option law was at the time in force, 
it is not enough for him to show that there was a contract to sell in 
that county, but be must also prove the actual consummation of the 
sale by the delivery of the goods there.41 If the illegality arose from 
the character or situation of the purchaser, this is also a matter 
which he may allege and prove. Thus, he may show that he him- 
self was not authorized to sell liquor, that he bought the goods in 
question from the plaintiff for the purpose of retailing them, and that 
the plaintiff knew of this illegal purpose; and for the purpose of 
bringing home this knowledge to the plaintiff, he may give evidence 
of former similar transactions between them tending to show the 
plaintiff's connivance in his illegal course of business.42 Under 
a prohibitory liquor law, formerly in force in Michigan, it was pro- 
vided that, to entitle the seller to recover, there must be "positive 
proof" that the liquors sold were imported from abroad and sold in 
the original packages. And it was held that this requirement was 
not sufficiently complied with, where an account was presented, 
opposite each item of which were added the words "imported and 
sold in the original packages," and the defendant admitted the cor- 
rectness of the account.43 
§251. Entire and Divisible Accounts. 
If the plaintiff's cause of action consists in part of a demand for 
the price of liquors illegally sold, his recovery will depend upon the 
question whether the contract or transaction sued on was entire or 
severable, and whether the consideration as a whole was tainted with 
illegality or was apportionable and partly good.44 Where goods are 
40 Jones v. McLeod, 103 Mass. 58. 
41 Clohessy v. Roedelheim, 99 Pa. St. 
56. 
4' Briggs v. Rafferty, 14 Gray, 525. 
43 Niles v. Rhodes, 7 Mich. 374. 
44Dr. Wharton states and explains 
the general rule as follows: "When 
there are several stipulations in a par- 
ticular agreement, the fact that one of 
these stipulations is Illegal does not de- 
feat a recovery on the other, when the 
stipulations are divisible, and the con- 
300 Ch. 12] 
§ 251 
EFFECT OF LIQUOR LAW'S ON CONTRACTS, ETC. 
sold, the sale of a portion of which is prohibited by law, and the 
sale is not for a gross sum as the price of the whole, but at stipu- 
lated prices for the prohibited goods and stipulated prices for the 
residue, the illegality of the sale of the portion prohibited will not 
render the sale of the residue illegal.45 Thus, where an entire stock 
of goods is sold at one and the same time, but each article at a sep- 
arate and distinct agreed value, the contract of sale is not to be 
regarded as entire and indivisible, and if the sale of some of the arti- 
cles be prohibited by law, the illegality will not vitiate the sale of the 
other articles.46 On the other hand, if the sale of a stock of goods 
is entire and for a gross sum, and it embraces liquors which the ven- 
dor was not authorized to sell, the whole sale is void.47 So, if intox- 
icating liquors are illegally sold, with an agreement that the vessels 
containing them, which are sold at the same time, may be returned 
and the buyer credited with the price charged, no action can be 
maintained for the price of the vessels not returned.48 In a case in 
Pennsylvania, the keeper of a boarding-house, not having a license 
to sell liquor, rendered a bill to a boarder, including an item for 
liquor, but this item was afterwards withdrawn, and a suit com- 
menced for the board only; and it was thereupon held that the plain- 
tiff might recover.49 Where an auditor, examining a book account 
for "goods and medicine," finds that some of the charges were for 
sideration is not as a whole illegal. In 
other words, 'in cases where the con- 
sideration is tainted by no illegality, 
but some of the conditions or promises 
are illegal, the illegality of those which 
are bad does not communicate itself to 
or contaminate those which are good, 
except where, in consequence of some 
peculiarity in the contract, its parts are 
inseparable or dependent upon one an- 
other.' Smith's L. C., (7th Am. Ed.) 
681. A fo tiori. when a transaction is 
separated by the parties into two agree- 
ments, one legal and the other illegal, 
the legal agreement can be enforced, 
and the transaction pro tanto sustained. 
It is otherwise where the stipulations, 
legal and illegal, are so interwoven that 
the legal cannot be sustained without 
sustaining the illegal. 'The general 
rule is, that where you cannot sever the 
illegal from the legal part of a cove- 
nant, the contract is altogether void; 
but where you can sever them, whether 
the illegality be created by statute or 
by the common law, you may reject the 
bad part, and retain the good.' Willes, 
J., in Pickering v. Railroad Co., L. R. 
3 C. P. 250. " 1 Wharton, Contr. § 338. 
« Walker v. Lovell, 28 N. H. 138. 
46 Carleton v. Woods, 28 N. H. 290. 
47Ladd v. Dillingham, 34 Me. 316. 
48 Holt v. O'Brien, 15 Gray, 311. 
49 Chase v. Burkholder, 18 Pa. St. 48. 
And see Fowle v. Blake, 38 Me. 528; 
Cochrane v. Clough, Id. 25. 
301 § 253 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
liquors illegally sold, but cannot determine what part, the burden is 
then on the plaintiff to prove the validity and propriety of each 
item.60 
§ 252. Appropriation of Payments on Account Partly 
Illegal. 
Payments made generally on an account composed of items of 
debts, some of which are legal and some illegal, are first applied, by 
the law, to the items of legal debts due.61 But this rule does not 
derogate from the right of the parties to make such a specific appro- 
priation as they may choose. Thus, where an account consisted in 
part of charges for liquors sold in violation of law, and there were 
payments credited on the account, and it had been agreed between 
the parties that the payments as they were made should be applied 
first upon the charges for liquors sold, it was held that, though the 
agreement was void, and though the amount paid for the liquors could 
be recovered back in an action upon the statute in that behalf, yet 
so far as the payments had been already so applied under the agree- 
ment, they could not be diverted from that application and appro- 
priated to the other items of the account. For such action by the 
court would be in effect to "make a new contract for the parties 
against their wishes and intentions."62 
§ 253. Recovery on Liquor Contract by Award. 
Although one who sells liquor in violation of law cannot maintain 
an action for the price, yet it is said to be no sufficient objection to 
an award of arbitrators that the party objecting is thereby charged 
with the price of liquors illegally sold. The supreme court of New 
Hampshire, in making this decision, observed that "if the suit were 
upon the note, or upon the other claims, in a court of law, the defend- 
ant might object that the sale of the articles which formed the con- 
60 Graves v. Ranger, 52 Vt. 424. 
61 Dunbar v. Garrity, 58 N. H. 575; 
Solomon v. Deschler, 4 Minn. 278, (Gil. 
197.) 
82Tomlinson Carriage Co. v. Kinsella, 
31 Conn. 268. And see Plummer v. 
Erskine, 58 Me. 59. 
302 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 255 
sideration of the note, and the ground of the other claims, was pro- 
hibited by statute, and could not furnish the foundation of a judgment. 
The rule would then apply that a party cannot be heard in a court 
of justice who bases his right to recover upon the violation of the 
law; and this is irrespective altogether of the question whether the 
violated law be founded upon morals, or be merely a municipal reg- 
ulation, for the laws of either class are, by the later decisions, regarded 
alike in this particular. But the parties have elected their own tribu- 
nal. They have chosen to submit the controversy to a tribunal which 
was at liberty to disregard the law, and make its own view of the 
equity between the parties the guide in its decision."63 
§ 254. Revival of Right of Action by Repeal of Law. 
The subsequent repeal of an act prohibiting the sale of intoxicating 
liquors can have no effect to give a right of action on a contract made 
in contravention of the statute while it was in force.64 But in respect 
to the right of action, after the repeal of a statute forbidding actions 
on liquor contracts, or invalidating notes or other securities given in 
connection with such contracts, there is an important distinction, 
founded on the question whether the prohibiting statute merely pro- 
vided that no recovery should be had on such engagements or con- 
tracts, or declared that such contracts, and securities given in pur- 
suance of them, should be absolutely void. In the latter case, there 
can of course be no right of action after the repeal, because that 
which was by law an absolute nullity cannot be vivified by the repeal 
of the law. But in the former case, the prohibition, not going to the 
contract itself, but merely withholding a remedy, is removed, in this 
respect, by the repeal of the statute.65 
§ 255. Laws Forbidding Credit for Liquor Sold. 
In some of the states, statutes have been enacted forbidding tav- 
ern-keepers or other dealers in intoxicating liquors to sell the same 
63 Davis v. Wentworth, 17 N. H. 567. 
64 Hathaway v. Moran, 44 Me. 67. Nor 
can such contract support a new prom- 
ise made after the repeal of the law. 
Ludlow v. Hardy, 38 Mich. 690. 
65 Bird v. Fake, 1 Pin. (Wis.) 290; 
Gorsuth v. Butterfield, 2 Wis. 237. 
303 § 256 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
to any person on credit, beyond a designated small amount. Such 
a law prevents the maintenance of an action for the recovery of the 
price of liquors sold, except in the statutory amount. Thus, in Illi- 
nois, where a plaintiff's account is for spirituous liquors sold in less 
quantities than a quart, the entire claim, exceeding fifty cents, is 
made void by statute, and a recovery on it expressly prohibited. 
And where a due-bill is given for such liquors, sold in less quantities 
than a quart, no recovery can be had on the same, except as to fifty 
cents.68 
§ 256. Note Given on Illegal Sale of Liquor is Void. 
No action can be maintained upon a promissory note given for the 
price of intoxicating liquors sold by the payee in violation of law.67 
And it can make no difference that the vendor sold the liquors on a 
month's credit, and that the note was not given until the end of the 
month, and was then given on an extension of the time for payment, 
nor is the case altered by the fact that the note was dated as of a 
place in another state, (being in fact executed in the state where the 
sale was made,) and was made payable at a named bank in such 
place.68 And so, where intoxicating liquors are sold in a state where 
the sale is illegal and void by the law of the state, and the sale is 
made for the purpose of enabling the buyer to violate the law of that 
state, an action brought in another state, against the acceptor of a 
note given for the price of the liquors, cannot be sustained.69 And 
where the buyer, having given his notes for the price of the illegal 
sale, afterwards pays part of the notes to a bank where the seller pro- 
cured a discount of them with his own indorsement, and the rest to 
the seller himself, he may recover from the seller, in an action on the 
statute, the amount actually received by him on the notes both from 
the bank and from the plaintiff.60 But in order to invalidate the note, 
it is necessary that its consideration should be directly connected 
66 Sappington v. Carter, 67 Ill. 482. 
See, also, Brittain v. Bethany, 31 Miss. 
331. 
67 Turek v. Richmond, 13 Barb. 533; 
Glass v. Alt, 17 Kans. 444. 
68 Glass v. Alt, 17 Kans. 444. 
69 Weil v. Golden, 141 Mass. 364, 6 N. 
E. Rep. 229; Converse v. Foster, 32 Vt 
828. 
60 Orcutt v. Symonds, 107 Mass. 382. 
304 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 257 
with the unlawful sale, and not collateral'y only. Thus, where the 
sale of intoxicating liquor is illegal, it is no defense to a promissory 
note that the maker bought liquor from one who was indebted to the 
payee for rent, and, in payment for the liquor, assumed the debt for rent 
owing by the seller to the payee of the note, and executed the note 
therefor; because, in this case, the consideration of the note is the 
rent, and not the liquor.61 
§ 257. Proof of Illegality of Note. 
Where a plaintiff's cause of action is upon a promissory note, (which 
imports consideration,) the burden is upon the defendant to show by 
proof the illegality of the contract, that constituting his defense to 
the action.62 If, under the statute, all sales of liquor within the state 
are illegal, he will establish his defense by merely proving that the 
consideration of the note was the price of liquors sold in the state. 
But where the statute contains exceptions,-as, authorizing sales by 
persons holding licenses or permits, or allowing manufacturers to sell 
for exportation only,-then the burden is upon the defendant to sat- 
isfy the jury, by direct or circumstantial evidence, that the plaintiff 
is not within the excepted classes, or that the sale was not made for 
the excepted purposes.63 And if the illegality of the sale arises from 
the fact that the purchaser belonged to a class of persons to whom 
it is forbidden to sell, it is incumbent on him to establish this fact 
in defense. Where the defense is that the notes sued on were given 
for liquor sold to defendant at a time when he was, to the plaintiff's 
knowledge, a man of "known intemperate habits," evidence that 
defendant's general reputation was that of a man of intemperate hab- 
its, though not competent to prove the fact of such habits, is compe- 
tent to show the plaintiff's knowledge.64 It must be observed, however, 
that the common law rule in this regard has been changed by statute 
in some of the states, so that it is now incumbent upon the payee of 
61 Bowen v. Webber, 69 Iowa, 286, 28 
N. W. Rep. 600. 
62 Craig v. Proctor, 6 R. I. 547; Brig- 
ham v. Potter, 14 Gray, 522. 
63 Craig v. Proctor, 6 R. I. 547. 
64Collins v. Jones, 83 Ala. 365, 3 
South. Rep. 591. 
INTOX.LIQ.-20 
305 § 259 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
a note given for liquors to establish affirmatively the validity of the sale 
which constitutes the consideration.66 
§ 258. Consideration, of Note Illegal in Part. 
It is well settled upon the authorities, that if a promissory note is 
given in settlement of an account, of which some of the items are for 
intoxicating liquors sold by the payee to the maker in violation of 
law, the illegal part of the consideration cannot be separated from 
the legal, but taints the whole, and, as between the immediate par- 
ties and those taking with notice, the entire note is void.66 The rea- 
son of this rule is explained by the supreme court of Ohio as follows: 
"Whilst a partial want or failure of consideration avoids a bill or 
note only pro tanto, illegality in respect to the consideration avoids 
it in toto. The reason of this distinction is said to be founded, partly 
at least, on grounds of public policy, and partly on the technical 
notion that the security is entire and cannot be apportioned; and it 
has been said with much force, that where parties have woven a web 
of fraud or wrong, it is no part of the duty of courts of justice to 
unravel the threads, and separate the sound from the unsound. 
And, in general, it makes no difference as to the effect, whether the 
illegality be at common law or by statute."67 And on the same prin- 
ciple, if partial payments have been made on an account, less than 
the amount charged therein for liquor illegally sold, a note given for 
the balance is void.68 
§ 259. Rights of Innocent Holder for Value. 
♦ 
In accordance with well settled and acknowledged rules of law 
governing commercial paper, it is held that it is no defense to an 
action on a negotiable promissory note that it was given in whole or 
in part for the price of intoxicating liquors sold in violation of law, 
65 Doolittle v. Lyman, 44 N. H. 608; 
Brigham v. Potter, 14 Gray, 522. 
66 Widoe v. Webb, 20 Ohio St. 431; 
Coburn v. Odell, 30 N. H. 540; Kidder 
v. Blake, 45 N. H. 530; Braitch v. Gue- 
lick, 37 Iowa. 212; Deering v. Chap- 
man, 22 Me. 488. 
67 Widoe v. Webb, 20 Ohio St. 431. 
68 Deering v. Chapman, 22 Me. 488. 
306 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 259 
when the action is brought by an innocent holder, who received the 
note in due course of business, for a valuable consideration, and 
without notice of the illegality of the consideration.69 "The law 
extends this peculiar protection to negotiable instruments, because 
it would seriously embarrass mercantile transactions to expose the 
trader to the consequences of having a bill or note passed to him 
impeached for some covert defect."70 And this rule has been 
extended so far as to hold that a note, given upon an illegal sale of 
liquor, and discounted in good faith by a party without notice of the 
illegality, may be collected by a holder who purchased it from such 
party, although the holder himself, at the time he bought the note, 
knew of the illegality.71 There is, however, an exception to this rule 
which must here be noticed. It has been expressed as follows: 
"When a statute, expressly or by necessary implication, declares the 
instrument absolutely void, it gathers no vitality by its circulation, 
in respect to the parties executing it; though, even upon such instru- 
ments, an indorser may be held liable to a bona fide holder without 
notice."72 Thus, the statute in Vermont provides that "no action 
shall be had or maintained in any court in this state, for the recovery 
or possession of intoxicating liquor, or the value thereof, except such 
as is sold or purchased in accordance with the provisions of this 
chapter." And this, it is held, renders a note given for liquor, not 
so sold or purchased, absolutely void, so that a bona fide holder 
thereof for value and without notice cannot recover upon it.73 But 
where, as in Rhode Island, the statute does not declare liquor con- 
69 Hapgood v. Needham, 59 Me. 442; 
Field v. Tibbetts, 57 Me. 358; Baxter v. 
Ellis, Id. 178; Norris v. Langley, 19 N. 
H. 423; Doe v. Burnham, 31 N. H. 426; 
Great Falls Bank v. Farmington, 41 N. 
H. 32; Pindar v. Barlow, 31 Vt. 529; 
Johnson v. Meeker, 1 Wis. 436; 1 
Wharton, Contr. § 351. 
70 1 Daniel, Nego. Instr. § 197. 
71 Dillingham v. Blood, 66 Me. 140. 
This decision proceeds upon the ground 
that the holder succeeds to all the 
rights of the person who discounted 
the note. And again, the maker is not 
injured, because the discounter could 
have enforced it, and it must be imma- 
terial to the maker whether it is en- 
forced by A. or B. And besides, in anal- 
ogous cases, the rule has been held in 
the same way; e. g., where the plaintiff 
knows that the note was fraudulently 
obtained by the payee, but bought it 
from a prior holder against whom this 
defense could not be set up. 
72 1 Daniel, Nego. Instr. § 197. 
73 Streit v. Sanborn, 47 Vt. 702, con- 
struing Gen. St. Vt c. 94, § 32. 
307 § 261 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
tracts void, but enacts that payments and compensations made upon 
such contracts shall be deemed to be without consideration as between 
the original parties, this does not impair the settled rights of a bona 
fide holder of negotiable paper.74 
§ 260. Proof of Character of Holder. 
It may be stated, as a general rule, that when, in an action by an 
indorsee against the maker of a promissory note, the defendant has 
proved that the note was given for intoxicating liquor sold in viola- 
tion of law, the plaintiff cannot recover until he shows that he was 
a holder for a valuable consideration without notice of the illegality 
of the contract.76 But when he has shown that he purchased the 
note for value, in due course of business, and under circumstances 
not calculated to awaken suspicion, it will be presumed that he had 
no notice of the illegality, until the contrary is shown.76 And a pur- 
chaser of negotiable paper is not put upon inquiry, by mere knowl- 
edge that the payee is engaged in selling liquor, to ascertain whether 
the consideration of the paper was not the unlawful sale of liquor.77 
§ 261. Purchaser of Note after Maturity. 
As a rule, overdue commercial paper is subject, in the hands of 
all parties dealing with it, to defenses growing out of the infirmity 
of its consideration. Hence where a negotiable note, which is void 
as between the original parties, by reason of being given for the price 
of liquor sold contrary to law, is transferred to a stranger after matu- 
rity, it is void in his hands, although he paid value for it and had no 
notice of the illegality.78 But this rule may be varied somewhat by 
the terms of particular statutes. Thus, in Maine, the statutg pro- 
vides that the defense of illegality in the consideration of a note, 
which was given for the price of liquors illegally sold, "shall not 
74 Cobb v. Doyle, 7 R. I. 550. 
75 Cottle v. Cleaves, 70 Me. 256; Rock 
Island Nat. Bk. v. Nelson, 41 Iowa, 563. 
70 Swett v. Hooper, 62 Me. 54; Baxter 
v. Ellis, 57 Me. 178. 
77 Bottomley v. Goldsmith, 33 Mich. 
27. 
78 Bissell v. Gowdy, 31 Conn. 47; Bar- 
low v. Scott's Admr., 12 Iowa, 63. 
308 Ch. 12] . 
§ 263 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
extend to negotiable paper in the hands of any holder for a valuable 
consideration and without notice of the illegality of the contract." 
And it is held that the fact that the note was overdue when nego- 
tiated will not be sufficient to subject it to the defense of illegality 
on this ground, as this, under the statute, does not amount to notice 
of its defective consideration.79 
§ 262. Judgment for Price of Liquors Sold. 
If there is illegality in a plaintiff's cause of action, this is matter 
which must be interposed in defense to the suit. If a judgment is 
rendered on such a cause of action, it is not open to collateral im- 
peachment, nor can its merits be inquired into in a subsequent suit, 
although the illegality of the contract may, in some cases, furnish 
ground for vacating or enjoining the judgment in a proper proceed- 
ing.80 In Iowa, where the code provides that all sales, liens, pledges, 
etc., made on account of intoxicating liquors, shall be void, it is held 
that the word "lien" does not include the lien of a judgment. And 
if a judgment be rendered in favor of a party selling liquors, it can- 
not be pleaded in another action that such judgment is void because 
the subject-matter of the action comes within the prohibition of the 
statute.81 
§ 263. Money Paid for Liquor cannot be Recovered 
Back at Common Law. 
Although the vendor, in an illegal sale of liquor, cannot maintain 
an action for the price, yet if the purchaser voluntarily pays the 
money, the contract is executed, and the rights of the parties are not 
subject to further change, without the aid of a statute. "When a 
contract, not malum in se, made in violation of the provisions of a 
statute, has been executed, a party who has performed, by the pay- 
ment of money, cannot recover it back, unless he can show that it 
was not paid for value actually received, but was obtained wrongfully 
79 Field v. Tibbetts, 57 Me. 358. 
801 Black, Judgm. §§ 331, 379. 
81 Smith v. Leddy, 50 Iowa, 112. 
309 § 264 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
or by undue advantage, or unless he can exhibit a statute provision 
expressly authorizing such a recovery. By the common law, there- 
fore, a person who has purchased intoxicating liquors of one not 
licensed to sell them, and who has received and paid for such liq- 
uors, could not recover back the money so paid."82 On this prin- 
ciple, where the statute prohibits the giving of credit beyond a cer- 
tain amount for liquor sold at retail, this does not apply to the 
payment of a judgment by means of such an account; the statute 
restricts the enforcement of such account, beyond the designated 
amount, but does not authorize the recovery back of money paid 
upon it.83 And so, where a mortgage of goods, void because made 
to secure the price of liquors sold contrary to law, was foreclosed by 
a court having jurisdiction, and a decree passed ordering a public 
sale of the goods by an officer, to an amount sufficient to pay the 
mortgage debt, and an officer sold the goods pursuant to the order, 
and paid over the amount of the debt to the mortgagee, it was held 
that the officer was not liable for the amount of the sale to a party 
who had acquired, previous to the foreclosure, a valid title to the 
goods from the mortgagor.84 A garnishee is not permitted to deduct, 
out of the effects and credits in his hands, a demand against the 
principal defendant for money paid on the illegal sale of intoxicating 
liquor.85 
§ 264. Executory Contract may be Repudiated. 
It has been observed by a leading writer that "where money has 
been paid on an illegal consideration, it may be recovered back at 
any time while the contract is still unexecuted, by repudiating the 
agreement, supposing that the plaintiff is not using the process of 
the court as a criminal venture. . . . The reason is, that in 
such cases the plaintiff's claim is not to enforce, but to repudiate, an 
illegal contract. The object of the suit is not to get paid for some- 
82 Ellsworth v. Mitchell, 31 Me. 247, 
citing Lowry v. Bordien, Doug. 468; 
Tappenden v. Randall, 2 Bos. & Pul. 
467; White v. Franklin Bank, 22 Pick. 
181. And see Mudgett v. Morton, 60 
Me. 260; 1 Wharton, Contr. 336, 352. 
83 Smith v. Hickman, 68 Ill. 314. 
84 Carter v. Clark, 28 Conn. 512. 
85 Thayer v. Partridge, 47 Vt. 423. 
310 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 265 
thing illegally done, but to prevent the defendant from using an 
illegal pretext to retain money unlawfully detained."86 Hence, in 
an action to recover the value of goods exchanged for intoxicating 
liquors in violation of law, the plaintiff may treat the contract of 
exchange as void, and if it is set up as a valid defense, he may then 
show that it falls within the statutory prohibition.87 
§ 265. Statutory Action to Recover Back Payments on 
Liquor Contracts. 
In several of the states, as a means of discouraging illicit traffic in 
liquor, statutes have been enacted providing that all "payments and 
compensations for intoxicating liquors sold in violation of the statute 
shall be held to have been received in violation of law, and against 
equity and good conscience, and to have been received upon a valid 
promise and agreement of the receiver, in consideration of the receipt 
thereof, to pay, on demand, to the person furnishing such considera- 
tion, the amount of said money."88 From what we have already 
said, it will be seen that these acts afford a right of action not avail- 
able at the common law. A regulation of this character, it is held, 
is not such an interference with interstate commerce as to conflict 
with the federal constitution; for although it restricts the sale of a 
recognized article of property, it is legislation enacted merely in 
virtue of the police power, and only indirectly affects the commerce 
of the country.89 Under these statutes, a plaintiff, though he is him- 
self licensed to sell liquor, may recover back payments made to a 
manufacturer who has no authority to sell.90 And if a licensed 
retailer sells at wholesale, the purchaser may recover the price paid.91 
But the acts do not apply to payments on a sale of liquor for "mechan- 
ical, medicinal, and sacramental purposes," allowed by the statute, 
on the part of citizens of the state, although the sale was invalid by 
reason of the fact that the seller was a citizen of another state.92 
861 Wharton, Contr. § 354. 
87 Smith v. Grable, 14 Iowa, 429. 
88 Code Iowa, § 1550; Gen. St. R. I. c. 
79, § 54. 
89 Connolly v. Scarr, 72 Iowa, 223, 33 
N. W. Rep. 641. 
80 Becker v. Betten, 39 Iowa, 668. 
91Tobert v. Clough, 72 Iowa, 220, 33 
N. W. Rep. 639. 
92 Kohn v. Melcher, 29 Fed. Rep. 433. 
311 § 265 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
And an agent, who sells in violation of the law, but does not receive 
the price, is not liable.93 Further, the statute is aimed at sales in 
the ordinary sense of the term, where the title passes from one owner 
to a new and different one, and not to releases on the dissolution of 
a partnership. Accordingly, where one partner buys the other out, 
he cannot, under the statute, recover back the money paid.94 If a 
single payment in money is made for a stock in trade, only a part of 
which consisted of liquor, it is held that the purchaser may recover 
the proportional amount paid for the liquor.95 But if the statute 
allows the recovery of all "payments or compensation" for intoxicat- 
ing liquor, this does not enable a purchaser who gave his note for 
the goods to maintain an action, until he has paid such note. The 
giving of a note to the seller does not amount to a payment, and the 
fact that the note was transferred to a third party by the seller, and 
is still outstanding, does not change the rule.96 An action cannot be 
brought, under these statutes, without first making a demand for the 
money.97 But the amount of the payment may be pleaded as a set-off 
or counter-claim, as well as recovered directly by suit.98 The right 
of action given by these statutes, so it is held, is a vested right in all 
persons who have paid money on such illegal sales, and is not affected 
by subsequent changes in the law.99 And the action thereunder is 
barred only at the end of the same period which would bar a valid 
promise or agreement to pay the money in question; it is not a penal 
action such as is barred in two years.100 In such an action, when 
the contract of sale was entered into within the state, the presump- 
tion is that payment was intended to be made, and was in fact made, 
in the state, in the absence of evidence to the contrary.101 
93 Schober v. Rosenfield, 75 Iowa, 455, 
89 N. W. Rep. 706. 
94 Jacobs v. Stokes, 12 Mich. 381. 
96 McGuinness v. Bligh, 11 R. I. 94. 
"Carlin v. Heller, 34 Iowa, 256. 
97 Schober v. Rosenfield, 75 Iowa, 455, 
39 N. W. Rep. 706. 
"Tolman v. Johnson, 43 Iowa, 127. 
99 Peters v. Goulden, 27 Mich. 171. 
loo Woodward v. Squires, 41 Iowa, 677 
101 Connolly v. Scan, 72 Iowa, 223, 31 
N. W. Rep. 641. 
312 Ch. 12] 
§ 2GG 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 266 Recovery for Liquors Sold in Another State. 
A contract made in one state for the sale of liquors to be delivered 
in another state, such as would be valid at common law, and which 
is not shown to be invalid where made, will enable the seller to main- 
tain an action for the price in the state where the delivery is made, 
notwithstanding that, if made in the latter state, the contract would 
have been void.102 The single exception to this rule is in a case where 
the seller knew that the purchaser intended to make an illegal dispo- 
sition of the goods, and in some way abetted or participated in the 
unlawful enterprise.103 Of this point we shall have occasion to speak 
more fully in subsequent sections. But illegality will not be pre- 
sumed, nor will it be presumed, as against the validity of a contract, 
and in the absence of proof, that the statutes of another state have 
provisions similar to those of the state where the action is brought, 
and in derogation of the common law. Neither will it be presumed, 
in the absence of evidence or finding, that parties making a sale in 
another state, where it was presumably valid, of liquors to be trans- 
ported into the state of the forum, intended thereby to assist the pur- 
chaser in violating the laws of the latter state.104 A sale, for exam- 
102Roethke v. Philip Best Brewing 
Co., 33 Mich. 340; Wagner v. Breed, 
(Nebr.)46 N. W. Rep. 286; Hill v. Spear, 
50 N. H. 253; Webber v. Donnelly, 33 
Mich. 469; Kling v. Fries, 33 Mich. 275; 
Orcutt v. Nelson, 1 Gray, 536; Mona- 
ghan v. Reid, 40 Mich. 665. 
103 In this connection, the court in 
Iowa remarks that the rule that a con- 
tract good where made is good every- 
where "is subject to important excep- 
tions: 1. That neither the state nor its 
citizens may suffer any injury or incon- 
venience by giving legal effect to the 
contract, which should not, in itself, 
nor in the means used to give it effect, 
work any injury to the country where 
it is attempted to be enforced. Story, 
Confl. Laws, § 244. 2. That the con- 
sideration of the contract be not im- 
moral, and the giving effect to it will 
not have a bad tendency, or exhibit to 
the citizens of the state an example 
pernicious and detestable. No man 
ought to be heard in a court of justice 
to enforce a contract founded in, or 
arising out of, moral or political tur- 
pitude, or in fraud of the just rights of 
any foreign nation. 3. The contract 
must not be opposed to the policy and 
institutions of the state where it is 
sought to be enforced. In all such 
cases, the contracts will be held utterly 
void, whatever may be their validity in 
the country where they are made, as 
being inconsistent with the duties, the 
policy, or the institutions of the state 
where they are sought to be enforced. 
Story, Confl. Laws, § 259. " Davis v. 
Bronson, 6 Iowa, 410. 
104 Kling v. Fries, 33 Mich. 275. 
313 § 267 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
pie, to a town agent by a non-resident dealer is not illegal, and the 
vendor is not responsible for the intent with which the agent pur- 
chased, nor the use to which he puts the liquor sold.105 And even 
where the statute prohibits recovery of the price of any liquors "except 
such as are sold or purchased in accordance with the provisions of 
the act," a sale of liquors made elsewhere, to be delivered within the 
state, if made without any view to their illegal resale, is valid; for, 
in the contemplation of the law, all sales are made in accordance 
with the act, if they are not prohibited by the terms of the act, or by 
necessary implication from those terms.106 And if a sale in another 
state is valid, a note for the price, given in the state where the goods 
are to be delivered, is valid and binding.107 
§ 267. Determination of Place of Sale. 
It frequently becomes important to localize a sale of liquors, in 
order to determine whether the transaction must be regarded as tak- 
ing place in a foreign state, where it would be lawful, or in the state 
of the forum, where it would be illegal. Many elements may enter into 
the determination of this question, but those most important to be 
considered are the place where the order was given, the place where 
delivery is made, and the character of the sale, as final or condi- 
tional. In some of the states, it is held that if the order for the 
goods is taken by the vendor himself in the state of the forum and 
delivery made there, it is a contract of that state, though the goods 
are packed and shipped from abroad.308 But there are also numer- 
ous authorities which hold that, although the order may be given in 
the state of the purchaser, yet if the seller, residing and doing busi- 
ness in another state, there delivers the liquors to a common carrier 
for transportation to the purchaser, and it does not appear that the 
order was for any specific liquors, (i. e., such as would ascertain the 
individual article sold without more,) these facts show only an exec- 
utory contract of sale, made in the state of the purchaser, but com- 
Street v. Hall, 29 Vt. 165. 
106 Orcutt v. Nelson, 1 Gray, 536. 
107 Monaghan v. Reid, 40 Mich. 665. 
108 Webber v. Howe, 36 Mich. 150; 
Territt v. Bartlett, 21 Vt. 184; Keiwert 
v. Meyer, 62 Ind. 587. 
314 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 267 
pleted in the foreign state.109 Of course, if the order is sent by the 
purchaser by mail, it is regarded as given at the place where it is 
received, and then all the elements of the transaction are complete 
in the foreign state, including delivery, if made to a common car- 
rier.110 The place of delivery is not always the controlling element 
in these questions. Thus, where the plaintiff made an agreement, 
in Boston, for the sale of liquors belonging to him, which were stored 
in Concord, with an agent of the defendant, and the terms of the 
agreement were complied with, it was held that, as between the 
vendor and vendee, the title to the property passed without proof 
of a delivery, and that the sale wras complete in Boston, and hence 
not subject to the laws of New Hampshire.111 But if the sale does 
not become complete, by reason of an option to return the goods 
if not satisfactory, until the liquors reach the buyer's hands, then, 
notwithstanding the foreign residence of the vendor, the transaction 
is regarded as localized in the state of the purchaser.112 But if the 
contract gives the buyer the period of thirty days to see if the goods 
are as represented, with the right to return them if they do not cor- 
respond to representations, this alone does not make the sale condi- 
tional, so as to prevent its being complete in the foreign state.113 In 
a case in Nebraska, it appeared that, by a certain writing, plaintiff 
agreed to sell beer made by him to defendant, to be sold by the lat- 
ter in Nebraska, and that he would sell to no other person for sale 
there, and to give defendant credit for the same in a designated 
amount. Defendant agreed to "faithfully represent" the plaintiff, 
and "to act as his agent for the sale of his beer," and then, by the 
same instrument, mortgaged certain lots to secure him for credits 
to be given under the arrangement. It was held that this was not 
a contract of agency or of sale, and did not operate to localize and 
render void sales of beer afterwards made in another state, and valid 
there, but which were contrary to the laws of Nebraska.114 
109Arberger v. Marrin, 102 Mass. 70; 
Dolan v. Green, 110 Mass. 322; Boothby 
v. Plaisted, 51 N. H. 436; Schlesinger 
v. Stratton, 9 R. I. 578; Erwin v. Staf- 
ford, 45 Vt. 390; Backman v. Mussey, 
31 Vt. 547. 
110 Webber v. Donnelly, 33 Mich. 469. 
111 Felton v. Fuller, 29 N. H. 121. 
But see Myers v. Carr, 12 Mich. 63. 
112 Wilson v. Stratton, 47 Me. 120. 
113 Schlesinger v. Stratton, 9 R. I. <578; 
Mack v. Lee, 13 R. I. 293. 
114 Wagner v. Breed, (Nebr.) 46 N. W. 
Rep. 286. 
315 § 269 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
§ 268. Same; Agent Taking Order. 
It is generally held that where a person living and doing business in 
one state sends his agent into another state to solicit orders for goods, 
and the agent there takes orders and sends them to his principal's 
place of business, and the latter fills the orders, and, without any spe' 
cial arrangement as to the manner and place of delivery, delivers 
them to a carrier in his own state, to be transported at the expense 
of the purchaser to the latter's place, the place of sale is in the state 
where the agent's principal does business.118 In some of the cases, 
however, we find a rule applied that the sale is made at the place 
where the agent takes the order, if the agent's action is final and 
binding on the principal; but otherwise if the order is to be subject 
to the principal's approval before it is filled.116 A purchaser by sample 
has the right, independent of any express agreement, to refuse to 
receive the goods offered if they fail to correspond with the sample. 
Hence, where liquors are sold by a wholesale dealer in one state, 
through his agent, to a party in another state, the fact that such 
right is by express agreement reserved to the purchaser, does not 
change the locality of the contract.117 But no recovery can be had 
for liquors sold by a merchant in another state to a person residing 
in the state of the forum, in pursuance of a contract made, or orders 
sent, by an agent of the seller, in the latter state, who had notice at 
the time that the liquor was to be sold in the latter state contrary to 
its laws; because, in such a case, the vendor must be regarded as aid- 
ing and participating in the violation of the laws of such state.118 
§ 269. Knowledge of Buyer's Illegal Purpose not Suffi- 
cient to Prevent Recovery. 
Where a sale of liquor is made in one state, and is valid there, 
the vendor may maintain an action to recover the price in another 
115 Williams v. Feiniman, 14 Kans. 
288; McCarty v. Gordon, 16 Kans. 35; 
Snider v. Koehler. 17 Kans. 432; Fuller 
v. Leet, 59 N. H. 163. 
116 Taylor v. Pickett, 52 Iowa, 467, 3 
N. W. Rep. 514; Tegler v. Shipman, 33 
Iowa, 194. 
117 Gill v. Kaufman, 16 Kans. 571; 
McCarty v. Gordon, Id. 35; Snider v. 
Koehler, 17 Kans. 432. 
n8McConihe v. McMann, 27 Vt. 95. 
316 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 269 
state, where the purchaser resides and where the goods were deliv- 
ered, notwithstanding it was the intention of the purchaser to make 
an illegal use of the property,-as by reselling it contrary to the laws 
of his own state,-provided the seller did not in any way aid or par- 
ticipate in the unlawful design. And mere knowledge, on the seller's 
part, of the buyer's illegal purpose, will not be sufficient to defeat a 
recovery.119 The principle is illustrated by the rule applicable to the 
analogous case of goods purchased abroad and smuggled into the 
country. Here the true distinction is pointed out as follows: Where 
the foreign vendor takes an actual part in the illegal adventure, as in 
packing the goods in prohibited parcels, or otherwise, the contract 
of sale will not be enforced; but the mere sale of goods by a for- 
eigner in a foreign country, made with the knowledge that the buyer 
intends to smuggle them into his own country, is not illegal, and 
may be enforced.120 In the state of Iowa, while it is not held that 
119 Banchor v. Mansel, 47 Me. 58; Gas- 
sett v. Godfrey, 26 N. H. 415; Lauten v. 
Rowan, 59 N. H. 215; Fisher v. Lord, 
63 N. H. 514, 3 Atl. Rep. 927; Backman 
v. Wright, 27 Vt. 187; Gaylord v. So- 
ragen, 32 Vt. 110; Tuttle v. Holland, 43 
Vt. 542; Erwin v. Stafford, 45 Vt. 390; 
Dater v. Earl, 3 Gray, 482; Kreiss v. 
Seligman, 8 Barb. 439; Feineman v. 
Sachs, 33 Kans. 621, 7 Pac. Rep. 222; 
Whitlock v. Workman, 15 Iowa, 351; 
Second Nat. Bk. v. Curren, 36 Iowa, 
555; Webber v. Donnelly, 33 Mich. 469; 
Hodgson v. Temple, 5 Taunt. 181; 2 
Benj. Sales, § 791. Compare Fishel v. 
Bennett, 56 Conn. 40, 12 Atl. Rep. 102. 
In this connection we quote the follow- 
ing from Dr. Wharton's work on Con- 
tracts, (§ 343:) "It may be that a knowl- 
edge of the intention of the party sup- 
plied to use the supplies illegally is es- 
sential to put the party supplying in the 
position of a.particeps criminis. But the 
mere knowledge of such intention will 
not by itself suffice for this purpose. 
The unlawful intention must have been 
in some sense executed. Cogitationis 
poenam nemo patitur. There must be a 
union of purposes between the party 
supplying and the party supplied, in 
order to infect the former with the lat- 
ter's criminality. A money-lender may 
know that the person to whom he lends 
money intends to spend this money in 
gambling or in the purchase of illegal 
stimulants, but this will not prohibit 
his recovery in a suit on the loan. A 
capitalist may know that it is the inten- 
tion of a foreign government, with 
whom he is negotiating a loan, to apply 
the money borrowed to belligerent pur- 
poses; but this knowledge, if war has 
not yet broken out, does not infect the 
lender with complicity. The lender of 
money on a mortgage on a store is not 
precluded from recovering it by the fact 
that he knows the mortgagor intends to 
open gambling tables, or to store pro- 
hibited drugs on the premises. It is 
not enough, therefore, in order to 
establish such complicity as defeats a 
right to recover in such cases, that the 
party supplying the goods or money 
knows that the party supplied intends 
to use them for an illegal purpose. 
There must be a combination between 
them to effect such purpose. " 
120 Pellecat v. Angell, 2 C. M. & R. 311. 
317 § 270 
LAW OF INTOXICATING LIQUORS. 
[Ch. 12 
mere knowledge, on the part of the seller of intoxicating liquors in 
another state, that the purchase was made with an intention to vio- 
late the laws of Iowa, would be sufficient to defeat an action on the 
contract, yet it is ruled that such knowledge is a fact from which, 
with other circumstances, the jury may infer an intent of the seller 
to participate in the illegal design.121 In Massachusetts, there was 
formerly a statute providing that "no action of any kind shall be had 
or maintained in any court for the price of any liquor sold in any 
other state for the purpose of being brought into this commonwealth, 
to be here kept or sold in violation of law, under such circumstances 
that the vendor would have reasonable cause to believe that the pur- 
chaser entertained such illegal purpose."122 After the repeal of this 
statute, it was held that the vendor might maintain an action for the 
price, if the sale was lawful where made, although the liquor was 
bought for the purpose of illegal resale in Massachusetts, and the 
seller had reasonable cause to believe that such was the intention. 
The ground of this ruling was that, at common law, mere reasonable 
cause of belief, without actual knowledge, on the part of the seller of 
goods, that the purchaser buys for the purpose of carrying them into 
another state and there reselling them in violation of its laws, is not 
sufficient to invalidate the sale.123 
§ 270. Participation in Illegal Design Defeats Action. 
It is well settled that if a vendor of liquors in a foreign state in 
any way assists or participates in a design on the part of the pur- 
chaser to smuggle them into a state where they are prohibited, or to 
dispose of them unlawfully in such state, his complicity in the illegal 
scheme will prevent him from recovering the price in an action.124 
The general rule, on which the foregoing proposition depends, is well 
illustrated in the English case of Waymell v. Reed.™ It there 
121 Tegler v. Shipman, 33 Iowa, 194; 
Rindskoff v. Curran, 34 Iowa, 325. 
l22 Gen. St. Mass. 1860, c. 86, § 61. 
123 Adams v. Couilliard, 102 Mass. 167; 
Ely v. Webster, Id. 304; Hotchkiss v. 
Finan, 105 Mass. 86. 
124 Banchor v. Mansel, 47 Me.58; Back- 
man v. Wright, 27 Vt. 187; Gaylord v. 
Soragen, 32 Vt. 110; Foster v. Thurston, 
11 Cush. 322; Webster v. Munger, 8 
Gray, 584; Feineman v. Sachs, 33 Kans. 
621, 7 Pac. Rep. 222; Davis v. Bronson, 
6 Iowa, 410. 
126 5 Term, 599. 
318 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 271 
appeared that the defendant applied to the plaintiff, a foreigner 
residing at Lisle, for a quantity of lace, which he knew was to be 
smuggled into England, and for that purpose it was to be packed by 
the plaintiff in a peculiar manner, by the direction of the defendant, 
for the more easy conveyance of it without discovery. The defense 
to the suit was that it was a smuggling transaction, and it was held 
that as the plaintiff was concerned in giving assistance to the defend- 
ant to smuggle the goods, by packing them in a manner most suitable 
to that purpose, and with an intent to aid in it, he could not resort 
to the laws of England to assist him in carrying his contract into 
execution.126 In an analogous case, in New Hampshire, a decision 
was rendered against a foreign vendor of liquor, who aided the pur- 
chaser in his unlawful scheme by sending twenty-gallon kegs in 
sugar-barrels and smaller kegs in boxes packed in sawdust.127 And 
it is held that if the seller does in fact intentionally further the 
illegal plan of the buyer, by forwarding the goods in a concealed or 
disguised form, calculated to accomplish that object, he cannot 
recover, even though it was not agreed between the parties, prior to 
or at the time or on the occasion of the sale, that the seller would 
thus aid the purchaser.128 
§ 271. Contract Void Where Made Void Everywhere. 
If a sale of liquor is void in the state where it is made, because 
contrary to the laws of that state, it is held as void everywhere,' and 
the seller cannot maintain an action for the price in the state where 
the goods are delivered and where the purchaser resides.129 For 
example, the laws of Iowa prohibit the manufacture for sale or sell- 
ing of intoxicating liquors within the state for any purpose, except 
for pharmaceutical, medical, chemical, and sacramental purposes, 
and then only by persons holding permits from the proper authori- 
ties. A certain brewing company, without such permit, manufact- 
ured and sold in that state a quantity of beer for the purpose of being 
126 See, also, Biggs v. Lawrence, 8 
Term, 454; Clugas v. Penaluna, 4 Term, 
466. 
127 Fisher v. Lord, 63 N. H. 514, 3 AtL 
Rep. 927. 
328 Aiken v. Blaisdell, 41 Vt. 655. 
129 Dudley v. Buckfield, 51 Me. 254. 
319 § 272 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
transported into Nebraska. It was held that the sale was in viola- 
tion of said laws, and the contract, being prohibited by the laws of 
the state where made, was void there, and its invalidity constituted 
a good defense in an action upon the contract in Nebraska.130 But 
in such a case, the burden is upon the defendant to show that the 
sale was illegal in the state where it was made.131 
§ 272. Statute Forbidding Recovery on Foreign Sales. 
In some of the states, there have been enacted statutes designed 
to prevent a recovery of the price of liquors sold by a non-resident 
dealer, under circumstances where the common law would have sus- 
tained an action, as, where the seller, though cognizant of the buyer's 
intention to make an illegal use of the goods, did nothing to further 
or facilitate the execution of his design. Thus, in Connecticut, it is 
provided that no action shall be maintained in any court of that state 
for liquors sold in any other state with intent to enable any person to 
violate the domestic statutes. And it is held that this statute is con- 
stitutional, and that it will be enforced although the particular sale 
may have been valid in the state where made, and an action may be 
sustainable upon it in such state.132 By the terms of the statute 
in Maine, if a person purchases intoxicating liquors out of the state, 
with the intention of selling any part thereof within the state in vio- 
lation of its laws, the seller cannot recover the price of the goods, 
although he had no knowledge of such intention on the buyer's part.133 
By a law formerly in force in Massachusetts, but now repealed, it 
was provided that if the purchaser intended to make an illegal dispo- 
sition of the liquors, and the foreign vendor had reasonable cause to 
believe that such was the case, there could be no recovery.134 It was 
130 Tredway v. Riley, (Nebr.)49 N. W. 
Rep. 268. 
131 Portsmouth Brewing Co. v. Smith, 
(Mass.) 28 N. E. Rep. 1130. 
132 Reynolds v. Geary, 26 Conn. 179. 
This statute is not retrospective; it ap- 
plies to no sale prior to its enactment. 
Donahoe v. Coleman, 46 Conn. 319. If 
there has been an actual payment for 
the liquors, by a bill of sale of goods 
within the state, such bill of sale is not 
invalidated by the provisions of the act. 
Carter v. Clark, 28 Conn. 512. 
133 Meservey v. Gray, 55 Me. 540. See 
Rev. St. Me. 1883, c. 27, § 56. And see 
Barnard v. Field. 46 Me. 526; Dearborn 
v. Hoit. 41 Me. 120. 
134 Lindsey v. Stone, 123 Mass. 332; 
320 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 273 
held that in order to sustain a defense, on this ground, to an action 
on a promissory note given for the price of liquors sold in another 
state, it was not sufficient to prove simply that the plaintiff had rea- 
sonable cause to believe that the purchaser intended to sell the liquors 
in Massachusetts in violation of law, but it must also be proved that 
the purchaser actually entertained such an intention.135 And evi- 
dence that the seller knew that the buyer was a liquor-dealer does 
not necessarily prove the seller's knowledge that the buyer intended 
to resell the liquors in violation of law.138 
§ 273. Laws Forbidding Soliciting of Orders. 
In the absence of a statutory prohibition, the mere solicitation, by 
a dealer in liquors, of orders for such goods to be filled in the future, 
even though he may have had reasonable cause to believe, and did 
believe, that the liquors would be resold by the purchaser in viola- 
tion of the laws of the latter's state, is not such a circumstance as 
will affect the validity of a subsequent sale of such liquors in a state 
where the sale is not prohibited.137 But in New Hampshire (and 
perhaps in some other states) statutes have been enacted which 
make the mere soliciting or taking of such orders, or the going from 
place to place soliciting or taking such orders, with knowledge or 
reasonable cause to believe that the liquors will be transported into 
the state and sold in violation of law, without any other act in further- 
ance of the vendee's design, a criminal offense punishable by fine or 
imprisonment.138 Under this law, a person who has solicited orders 
for the sale of liquors, with the knowledge or reasonable cause of 
belief mentioned in the act, cannot recover the price of the same by 
suit, although the contract of sale may have been lawful in the state 
where it was made.139 Whether a particular sale was in fact made 
Bligh v. James, 6 Allen, 570; Finch v. 
Mansfield, 97 Mass. 89; Charlton v. Don- 
nell, 100 Mass. 229. 
136 Savage v. Mallory, 4 Allen, 492. 
136 Frank v. O'Neil, 125 Mass. 473. 
137 Hill v. Spear, 50 N. H. 253; Jones 
v. Surprise, 64 N. H. 243, 9 Atl. Rep. 
384; supra, § 269. 
138 Gen. Laws N. H. c. 109, § 18. 
139 Jones v. Surprise, 64 N. H. 243, 9 
Atl. Rep. 384; Dunbar v. Locke, 62 N. 
H. 442; Holden v. Brooks, (N. H.) 20 
Atl. Rep. 247; Lang v. Lynch, 38 Fed. 
Rep. 489. 
The decision in Dunbar v. Locke and 
Jones v. Surprise, supra, has been over- 
INTOX.LIQ. 21 
321 [Ch. 12 
§ 274 
LAW OF INTOXICATING LIQUORS. 
in violation of the terms of such a statute, is a question of fact to be 
determined by the jury.140 In Connecticut, there is a law which for- 
bids all persons, without a license therefor, to sell intoxicating liquor 
"by sample, or by soliciting or procuring orders." And it is held 
that a contract for a sale, made in that state by a travelling agent 
of a firm in another state, of liquors to be delivered in such other 
state, is in violation of the statute.141 
§ 274. Contracts against Policy of Liquor Laws. 
There are various species of contracts and transactions between 
parties which, though not expressly prohibited by statute, are con- 
sidered void because contrary to the policy and purpose of the liquor 
laws, or by reason of their being so closely connected with illicit deal- 
ings in liquor as to be infected with the illegality. For example, an 
attempted assignment of a liquor license is void. And hence a con- 
tract by which, in consideration of a gross sum, the plaintiff leased 
the bar of his hotel to defendant, conveyed to defendant the right to 
sell liquor under a license obtained by plaintiff, and agreed to board 
defendant during the lease, was held to be totally void, the legal part 
of the agreement being inseparable from the illegal.142 So where the 
plaintiff, with others, was interested in a quantity of spirituous liquor, 
which was placed, by a mutual arrangement between the parties, in 
the hands of the defendant to sell, and he sold the same, in violation 
of the license law, and the plaintiff derived his title to his proportion 
ruled in the recent case of Durkee v. 
Moses, (N. H.) 23 Atl. Rep. 793, on the 
ground that the statute in question was 
an unconstitutional restriction of in- 
terstate commerce, as shown by Leisy 
v. Hardin, 135 U. S. 100, 10 Sup. Ct. 
Rep. 681. And it is held that the price 
of liquors so sold by a foreign vendor 
may be recovered, notwithstanding the 
statute, where the sale was made be- 
fore the passage of the Wilson Act (supra, 
§76.) But since that act is generally 
understood to put the power of the 
states exactly where it was supposed 
to stand before the decision in Leisy v. 
Hardin, it would seem that the New 
Hampshire statute should now be re- 
garded as in full force and virtue, and 
that a recovery should be denied on all 
sales made, in the forbidden manner, 
since August 8, 1890. 
140 Dunbar v. Locke, 62 N. H. 442. 
141 State v. Ascher, 54 Conn. 299, 7 
Atl. Rep. 822. 
142 Sanderson v. Goodrich, 46 Barb. 
616; supra, § 130. See, also, Ritchie v. 
Smith, 6 C. B. 462. 
322 Ch. 12] 
EFFECT OF LIQUOR LAWS ON CONTRACTS, ETC. 
§ 275 
of the money received by defendant upon such sale, through such 
arrangement or contract, and it also being necessary for the plaintiff, 
in order to sustain his action, to prove the arrangement under which 
the liquor went into the hands of the defendant and the illegal sale 
itself, it was held that the contract was so connected with the illegal 
sale of the liquor that the plaintiff could not recover any portion of 
the money received upon such sale.143 On a similar principle, a plain- 
tiff cannot recover for his personal services, portions of which were 
rendered in an employment of selling liquors unlawfully, the contract 
of service being an entirety; but he is not to be prevented from recov- 
ering for his services contracted to be rendered in a lawful employ- 
ment, merely because, during the time of his employment, he occa- 
sionally assists his employer in such unlawful business gratuitously, 
not expecting or seeking any compensation therefor.144 In accordance 
with the same general principle, it is held that no action lies upon a 
warranty given upon the sale of a horse, the price of which was paid 
in spirituous liquors which the purchaser could not legally sell.145 
And so, where an assignment of rent is made in consideration of 
intoxicating liquors, the assignee cannot maintain an action for its 
recovery.146 But on the other hand, as the public policy of the state 
is to restrain the traffic in intoxicating liquors, it follows that a con- 
tract in restraint of that traffic, if made upon a sufficient consideration, 
will be enforced by the courts, though the restraint be territorially 
co-extensive with the state.147 
§ 275. Avoidance of Leases. 
In several of the states, the statutes are so framed as to permit a 
landlord, whose tenant is using the demised premises for the unlaw- 
ful sale of intoxicating liquors, to cancel the lease and recover pos- 
session of the property. Under these acts, an action of forcible entry 
and detainer may be maintained, for the restoration of the landlord 
to possession, without any previous judicial proceeding to ascertain 
and declare the forfeiture of the lease.148 And the tenant cannot 
143 Buck v. Albee, 27 Vt. 184. 
144 Goodwin v. Clark, 65 Me. 280; 
Timson v. Moulton, 3 Cush. 269. 
146 Howard v. Harris, 8 Allen, 297. 
146 Davis v. Slater, 17 Iowa, 250. 
147 Harrison v. Lockhart, 25 Ind. 112. 
148 McGarvey v. Puckett, 27 Ohio St. 
669. 
323 § 276 
[Ch. 12 
LAW OF INTOXICATING LIQUORS. 
defeat the proceedings by showing that he has paid rent in advance 
for the entire term.149 The landlord may also dispossess his lessee 
from the whole premises, notwithstanding the wrong-doer is not his 
immediate lessee, but is a sub-tenant, and of a part only of the 
building.150 In Ohio, under one section of the statute, the use of the 
premises by the tenant for the unlawful sale of liquor renders the 
lease void at the election of the lessor; but where the lease was made 
for the purpose of having the premises so used, and this purpose is 
afterwards accomplished by the tenant, then, under another section, 
the lease becomes void as to both parties.151 And in New Hamp- 
shire, under a law imposing a penalty on any person owning or con- 
trolling any premises who shall suffer them to be used for the sale of 
spirituous liquors, it is held that a person who owns a building and 
has knowledge that his tenant at will is using the premises for the 
sale of liquor, and raises his rent in consequence, but not for the 
purpose of ousting him, cannot recover for their use and occupa- 
tion.152 
§ 276. Who may Take Advantage of Illegality. 
A contract in violation of a statute, when introduced as evidence 
of a right to recover thereon, may be effectually resisted by a party 
to it, or by one in legal privity, but not by a mere stranger. Hence, 
where a mortgage is made to secure a claim for liquor sold in viola- 
tion of law, and a subsequent mortgage of the same property is made 
to another person to secure a lawful debt, the receiving of the money 
by the first mortgagee, for his claim, by a sale or discharge of the mort- 
gage, will not subject him to an action by the second mortgagee to 
recover such money.183 Nor does a prohibitory liquor law go far 
enough to avoid all dealings not immediately between buyer and 
seller, or prevent such dealings from being included within grounds 
of estoppel and agency; and one who has authorized another to pay 
money on his behalf cannot recall the agency, or repudiate the pay- 
ment, after the agent has performed his instructions.154 
149 McGarvey v. Puckett, 27 Ohio St. 
669. 
150 People v. Bennett, 14 Hun, 63. 
181 Justice v. Lowe, 26 Ohio St. 372. 
162 Mitchell v. Scott, 62 N. H. 596. 
153 Ellsworth v. Mitchell, 31 Me. 247. 
154McGunn v. Hanlin, 29 Mich. 476. 
324 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 277 
CHAPTER XIII. 
CIVIL DAMAGE LAWS. 
Part I. Civil Damage Statutes. 
§ 277. Terms of the Statutes. 
278. Constitutionality of Statutes. 
279. Construction of Statutes. 
280. Statutes not Extra-Territorial. 
281. Nature and Form of Action. 
282. Limitation of Action. 
Part II. What Persons are Entitled to Sue. 
283. Wife or Widow. 
284. Husband. 
285. Father. 
286. Dependent Mother. 
287. Son or Daughter. 
288. Employer. 
289. Stranger Injured by Intoxicated Person. 
290. Town or Poor District. 
291. Intoxicated Person as Plaintiff. 
292. Seller cannot Recover. 
293. Joinder of Plaintiffs. 
Part III. What Persons are Liable. 
294. Immediate and Remote Vendor. 
295. Person not a Liquor-Seller. 
296. Personal and Bonded Liability. 
297. Sureties on Dealer's Bond. 
298. Liability of Master for Acts of Servant. 
299. Joint Liability. 
300. Plaintiff can have but one Satisfaction. 
301. Liability of Lessor of Premises. 
302. Knowledge and Consent of Owner. 
303. Establishment of Lien on Premises. 
Part IV. The Cause of Action. 
304. Elements of the Right of Action. 
305. Illegality of Sale Necessary to Found Action. 
306. Injuries to Person. 
807. Injuries to Property. 
808. Injuries to Means of Support. 
809. Disgrace and Mental Suffering. 
810. Death of Husband as Ground of Action. 
325 [Ch. 13 
§ 277 
LAW OF INTOXICATING LIQUORS. 
Part IV. The Cause of Action-Continued. 
§ 311. Intoxication as Cause of Death. 
312. Proximate and Remote Causes of Injury. 
313. Caring for Intoxicated Person. 
314. Sale after Notice not to Sell. 
Part V. Defenses to Action. 
315. Defenses in General. 
316. License is no Protection. 
817. Contributing Act or Negligence of Plaintiff. 
818. Concurrence of Intoxicated Person. 
Part VL Pleadings in the Action. 
319. Allegations of Complaint. 
320. Negativing Contributory Negligence. 
821. Correspondence of Pleading and Proof. 
822. Amendment of Declaration. 
Part VIL Damages Recoverable. 
823. Proper Elements of Damage. 
324. Measure of Damages. 
325. Exemplary Damages. 
326. Reduction or Mitigation.of Damages. 
Part VIII. Evidence in Civil Damage Actions. 
327. Admissibility of Evidence in General. 
828. Competency of Husband as Witness. 
329. Evidence of Antecedent Facts. 
830. Evidence Confined to Injury Alleged. 
831. Proof of Character of Plaintiff. 
832. Proof of Sale by Defendant. 
833. Proof of Intoxication as Cause of Injury. 
834. Evidence of Decedent's Expectation of Life. 
835. Evidence to Charge Lessor of Premises. 
336. Evidence on Question of Exemplary Damages. 
337. Weight and Sufficiency of Evidence. 
Part I. Civil Damage Statutes. 
§ 277. Terms of the Statutes. 
The statutes which are now familiarly known as "civil damage 
laws" are intended to impose a civil responsibility upon liquor deal- 
ers for some of the evils which their traffic engenders. These laws 
give a right of action, against such persons, to innocent parties who 
326 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 277 
sustain injury by the intoxication of persons supplied with liquor by 
the defendants, or the consequences of such intoxication, or by the 
acts of intoxicated persons, or by the furnishing of liquor to minors 
or drunkards after warning given not to do so. The terms of the 
civil damage laws, in the various states where they have been enacted, 
are not uniform, but they are all addressed to one or other of the 
objects just mentioned. The following synopsis will exhibit the lan- 
guage and scope of these statutes with sufficient detail for the present 
purpose. 
Illinois. "Every husband, wife, child, parent, guardian, employer, 
or other person, who shall be injured in person, property, or means 
of support, by any intoxicated person, or in consequence of the intox- 
ication, habitual or otherwise, of any person, shall have a right of 
action in his or her own name, severally or jointly, against any person 
or persons who shall, by selling or giving intoxicating liquors, have 
caused the intoxication in whole or in part of such person or persons. 
And any person owning, renting, leasing, or permitting the occupa- 
tion of any building or premises, and having knowledge that intox- 
icating liquors are to be sold therein, or who, having leased the same 
for any other purpose, shall knowingly permit the sale therein of any 
intoxicating liquors that have caused in whole or in part the intox- 
ication of any person, shall be liable, severally or jointly with the 
person or persons selling or giving intoxicating liquors aforesaid, for 
all damages sustained, and for exemplary damages."1 
Statutes substantially the same as the foregoing are in force in 
Arkansas,2 Colorado,3 Iowa,4 Kansas,5 Maine,6 Michigan,7 New Mex- 
1 Rev. St. Ill. 1889, c. 43, § 9. 
2 Laws Ark. 1873, p. 386, § 4. But this 
statute is confined to the county of 
Washington. 
3Mill's Ann. St. Colo. 1891, § 1513. 
But it is here confined to cases of sales 
to habitual drunkards, and notice not 
to sell to such persons must first have 
been given to the dealer. 
4 McClain's Ann. Code Iowa 1888, §§ 
2418, 2419. 
5 Comp. Laws Kans. 1885, § 2301. The 
owner or lessor is liable for fines and 
costs assessed under the general liquor 
law, (§ 2304,) but apparently not for 
damages in a civil damage suit. 
6 Rev. St. Me. 1883, c. 27, § 49. But 
here the cause of action may be for in- 
jury to "person, property, means of 
support, or otherwise. " 
7 3 How. Ann. St. Mich. § 2283, cl. 20. 
(As in Maine; but no liability is imposed 
on the lessor.) 
327 § 277 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
ico,8 New York,9 Ohio,10 Washington,11 West Virginia,12 and Wiscon- 
sin.13 
In Connecticut, the law provides that "every person who by him- 
self or his agent shall sell any spirituous and intoxicating liquor to 
any other person to be drunk on the premises, who thereby becomes 
intoxicated, and who, while so intoxicated, shall in consequence of 
such intoxication injure the person or property of another, shall pay 
just damages to the person injured, to be recovered in an action on 
this statute."14 
In Dakota, the law provides for the giving of notice not to sell, at 
the instance of any relative of a person addicted to excessive drink- 
ing, and the seller who violates the notice forfeits his license, is sub- 
ject to a fine, and is "liable in a civil action at the suit of such rela- 
tive to pay him, her, or them, the sum of five hundred dollars dam- 
ages for each offense." 18 
Indiana. "Every person who shall sell, barter, or give away any 
intoxicating liquors in violation of any of the provisions of this act, 
shall be personally liable ... to any person who shall sustain 
any injury or damage to their persons or property or means of sup- 
port on account of the use of such intoxicating liquors, so sold as 
aforesaid, to be enforced by appropriate action in any court of com- 
petent jurisdiction."16 
In Kentucky, a licensed liquor-seller is liable to a fine of $20 for 
furnishing liquor to a known inebriate. And "for every violation of 
this section, the wife or any relative of the inebriate may recover not 
less than a like amount for her or his benefit, before any court of 
competent jurisdiction. Notice in writing that the person is an ine- 
briate, and forbidding the sale or giving of such liquors to him, shall 
be given to the person so licensed, by the wife or relative of such 
8 Laws New Mex. 1887, p. 45. The 
same as in Colorado. 
9 2 Rev. St. N. Y. p. 1309, § 15; Laws 
N. Y. 1873, c. 646. 
10 Rev. St. Ohio 1890, § 4357. But no- 
tice not to sell must have been given. 
ii Code Wash. 1881, § 2059. 
12 Code W. Va. 1891, c. 32, § 20, p. 236. 
13 Rev. St. Wis. § 1560. But here it is 
confined to sales to minors and habit- 
ual drunkards, and notice not to sell 
must first have been given. 
14 Gen. St. Conn. 1888, § 8101. 
18 Polit. Code Dak. 1885, c. 35, § 4. 
16 Acts Ind., Special Sess. 1875, p. 59, 
§20. 
328 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 277 
inebriate, before the action provided for in this section can be main- 
tained." 17 
Massachusetts. "The mayor of a city or any one of the selectmen 
of a town in which a person lives who has or may hereafter have the 
habit of drinking spirituous or intoxicating liquor to excess, may give 
notice in writing, signed by him, to any person, requesting him not 
to sell or deliver such liquor to the person having such habit. If the 
person so notified, at any time within twelve months thereafter, sells 
or delivers any such liquor to the person having such habit, or per- 
mits such person to loiter on his premises, the person giving the 
notice may, in his own name, in an action of tort, brought at his 
election for the benefit either of the husband, wife, child, parent, or 
guardian of the person having such habit, recover of the person so 
notified such sum, not less than one hundred nor more than five hun- 
dred dollars, as may be assessed as damages."18 
In Minnesota, after the revocation or forfeiture of a license, "the 
person who has so violated the conditions of the said bond shall 
. . . be liable for all damages done by persons intoxicated by 
liquors obtained from him; and the sureties on said bond shall be 
jointly and severally liable with the principal for the payment of 
said damages, to be recovered in a civil action." 19 
Nebraska. Here the statute provides that "the person so licensed 
shall pay all damages that the community or individuals may sus- 
tain in consequence of such traffic; he shall support all paupers, 
widows, and orphans, and the expenses of all civil and criminal pros- 
ecutions, growing out of, or justly attributed to, his traffic in intoxi- 
cating drinks. It shall be lawful for any married woman, or any 
other person at her request, to institute and maintain, in her own 
name, a suit on any such bond for all damages sustained by herself 
and children on account of such traffic, and the money when collected 
shall be paid over for the use of herself and children."20 
In New Hampshire, the law provides for the giving of notice by any 
near relative, or the guardian or employer, of an habitual drunkard, 
17 Gen. St. Ky. 1888, p. 1235. 
18 St. Mass. 1885, c. 282. 
19 Gen. St. Minn. 1887, c. 16, § 3. 
20 Comp. St. Nebr. 1891, p. 555, §§ 15, 
16. 
329 § 277 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
to liquor-sellers not to sell to him, and that, upon disregard of the 
notice, the person who gave the same may recover from the person 
notified, in an action of tort, from $50 to $500 as damages.21 
North Carolina. "The father, or if he be dead, the mother, guard- 
ian, or employer of any minor, to whom a sale or gift shall be made 
in violation of the preceding section, shall have a right of action in 
a civil suit against the person or persons so offending by such sale 
or gift, and upon proof of such illicit sale or gift, shall recover from 
such party or parties so offending such exemplary damages as a jury 
may assess; provided that such assessment shall not be less than 
twenty-five dollars."22 
Pennsylvania. "Any person furnishing intoxicating drinks to any 
other person, in violation of any existing law, or of the provisions of 
this act, shall be held civilly responsible for any injury to person or 
property in consequence of such furnishing; and any one aggrieved 
may recover full damages against such person so furnishing, by 
action on the case." And another section provides for giving notice 
not to sell to an habitual drunkard, and for the recovery, in an action 
of tort, of from $50 to $500 as damages for violation of such notice.23 
Rhode Island. "If any person in a state of intoxication commits 
any injury to the person or property of another, the person who fur- 
nished him with any part of the liquor which occasioned his intoxi- 
cation, if the same was furnished in violation of this act, shall be 
liable to the same action by the party injured as the person intoxi- 
cated would be liable to; and the party injured, or his legal repre- 
sentative, may bring either a joint action against the person intoxi- 
cated and the person who furnished the liquor, or a separate action 
against either."24 
In South Carolina, the statute provides for giving notice not to sell 
to a minor, drunkard, or lunatic; and if the prohibition of the notice 
is violated, the seller shall be "responsible for any injury to person 
or property which may occur in consequence of such furnishing, 
and any one aggrieved may recover damages against the person so 
si Gen. Laws N. H. 1878, c. 109, § 28. 
22 Code N. Car. 1883, § 1078. 
23 Bright. Purd. Dig. Pa. p. 1082, § 47. 
24 Laws R. L, May Sess. 1886, c. 596, § 
48. 
330 Ch. 13] 
§ 278 
CIVIL DAMAGE LAWS. 
furnishing. . . . And in case any wife shall give such notice, 
she shall be entitled to recover of the person furnishing intoxicating 
liquor to her husband, in an action in her own name, such damages 
as any court or jury may award, for the maintenance of herself and 
family during the period when her husband, by reason of such fur- 
nishing, is incapable of providing for the proper support of her or 
them."26 
Utah. "It shall be lawful for any married woman to institute and 
maintain, in her own name, a suit on any such bond, for all dam- 
ages sustained by herself and children, or either, on account of such 
traffic, and the money when collected shall be paid over for the use 
of herself and children, or either."26 
Vermont. "Whenever any person is confined in jail, the house of 
correction, or the state prison, by reason of intoxication, or by rea- 
son of any criminal act done or committed while intoxicated, the wife 
of such person in her own name, and in case such person has no 
wife, his minor child or children, may, in an action founded on this 
statute, recover of the person who by himself, clerk, servant, or agent, 
illegally sold, furnished, or gave away to such person, any part of the 
intoxicating liquor upon which such person became intoxicated, the 
sum of two dollars per day for all the time such person may be thus 
confined, to be recovered at the end of such confinement, or at the 
end of each and any month of such confinement, with double costs." 
And the lessor of the seller may be joined as a defendant, if cognizant 
of the illegal sale of liquor on the premises.27 
§ 278. Constitutionality of Statutes. 
The validity of the civil damage laws, on constitutional grounds, 
has often been called in question, but never with success. They are 
held to be proper and legitimate exertions of the legislative power, 
and their constitutionality is now well established.28. Although a per- 
25 Gen. St. S. Car. § 1738. 
26 Laws Utah 1882, p. 32, § 7. 
27 Laws Vt. 1886, No. 36, p. 30. 
28Bedore v. Newton, 54 N. H. 117; 
Stanton v. Simpson, 48 Vt. 628; Moran 
v. Goodwin, 130 Mass. 158, 39 Am. Rep. 
443; Baker v. Pope, 2 Hun, 556; Frank- 
lin v. Schermerhorn, 8 Hun, 112; Sibila 
v. Bahney, 34 Ohio St. 399; Horning v. 
Wendell, 57 Ind. 171; Werner v. Ed- 
331 § 279 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
son sought to be made liable under such a statute was duly licensed 
to sell liquor at the time the law went into effect, yet it is not an 
unconstitutional invasion of his rights. For a license, as already 
explained, is not a contract, the obligation of which is protected from 
impairment, and when the holder acquired the privilege which it con- 
ferred, he took it subject to any additional burdens or responsibilities 
which the law might impose.29 And if the statute requires a bond, as 
a condition precedent to a license to sell, conditioned that the dealer 
will not sell to any husband after notification from the wife, this does 
not abridge the privileges or immunities of citizens guarantied by the 
federal constitution.30 Nor is the law unconstitutional,-as holding 
one man responsible for the act of another,-when it makes the seller 
liable for an injury to which his unlawful sale or furnishing con. 
tributed "in part" only. It simply puts him in the position of a joint 
tort-feasor, who, on common law principles, is liable for the entire 
damages.31 Further, if the statute authorizes a recovery against the 
owner or lessor of the premises on which the sale is made, he know- 
ing and consenting to the carrying on of the traffic on such premises, 
it cannot be considered an unlawful "taking" or "depriving" of his 
property, within the meaning of the constitution.32 
§ 279. Construction of Statutes. 
The civil damage law, being highly penal in its character, and 
introducing remedies unknown to the common law, and, as the stat- 
utes are framed in some jurisdictions, giving to the party prose- 
cuting a decided advantage over the party defending, should receive 
a strict construction.33 Hence, for example, no person can maintain 
an action under its provisions to whom a right of action is not given 
by its terms.34 But on the other hand, "while a statute of this char- 
miston, 24 Kans. 147; Kreiterv. Nichols, 
28 Mich. 496; State v. Ludington, 33 
Wis. 107; supra, § 56. 
29 Moran v. Goodwin, 130 Mass. 158, 
39 Am. Rep. 443; Baker v. Pope, 2 Hun, 
556; Horning v. Wendell, 57 Ind. 171. 
89 Bell v. State, 28 Tex. App. 96, 12 S. 
W. Rep. 410. 
81 Sibil a v. Bahney, 34 Ohio St. 399. 
82Bertholf v. O'Reilly, 74 N. Y. 509, 
30 Am. Rep. 323. 
88Meidel v. Anthis. 71 Ill. 241; Freese 
v. Tripp, 70 Ill. 496; Fentz v. Meadows, 
72 Ill. 540. 
84 Schneider v. Hosier, 21 Ohio St 98. 
332 § 281 
Ch. 13] 
CIVIL DAMAGE LAWS. 
acter should not be enlarged, it should be interpreted, where the lan- 
guage is clear and explicit, according to its true intent and meaning, 
having in view the evil to be remedied and the object to be obtained. 
The evident object was to suppress the sale and use of intoxicating 
liquors, and to punish those who, in any form, furnished means of 
intoxication, by making them liable for damages which might arise, 
which were caused by the parties who furnished such means."35 
And indeed it would be a gross failure of justice to put so narrow a 
construction upon these acts as to impair the effects they were 
intended to produce. Their beneficent purpose is not to be defeated 
by technical or verbal niceties. 
§ 280. Statutes not Extra-Territorial. 
A civil damage law is enacted for the benefit of the citizens of the 
particular state, and intends that the cause of action shall arise 
within the state. It has no extra-territorial operation or effect. 
Hence, for example, where a person residing in Vermont went into 
the state of New York, and there bought liquor from A. and became 
intoxicated, and in that condition returned to his home and did dam- 
age to the property of B., it was held that B. could not maintain an 
action against A., under the civil damage law of New York, in the 
courts of that state.86 
§ 281. Nature and Form of Action. 
The action given under the civil damage laws is entirely statutory, 
and hence must be governed wholly by the provisions of the statute. 
At the common law, it was not an actionable wrong to either sell or 
give intoxicating liquors to a strong and able-bodied man.37 The 
effect of the statutes in question is to create a new cause of action in 
tort. A suit brought under them is purely and entirely an action ex 
delicto; and not only that, but it is for a personal tort and injury, 
35 Mead v. Stratton, 87 N. Y. 493, 41 
Am. Rep. 386. 
36 Goodwin v. Young, 34 Hun, 252. 
37 Cruse v. Aden, 127 Ill. 231, 20 N. E. 
Rep. 73. And at common law, a seller 
cannot be liable for improper use made 
of liquors, unless he knows of the in- 
tended improper use. Struble v. Nod- 
wift, 11 Ind. 64. 
333 § 283 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
as much so as in the case of an assault and battery. It follows, 
therefore, that the cause of action is not assignable.88 Where the 
common law system of pleading is in force, it appears that case is the 
proper form of action under the civil damage laws. And a demand 
so pleaded cannot properly be joined with a count in assumpsit for 
the recovery, under the statute, of money paid for liquors.89 If the 
civil damage law is repealed, it is held that the repeal destroys all 
rights of action previously acquired or vested under it, even in the 
case of pending suits, unless the repealing act contains an express 
saving clause.40 
§ 282. Limitation of Action 
The ground of an action for personal injuries is the tortious act 
against the person injured, although the right of action therefor is 
conferred by statute in certain cases upon the husband or wife or per- 
sonal representatives. Hence, in a case arising under the civil dam- 
age law, the statute of limitations begins to run from the date of sell- 
ing or furnishing the liquors which caused the intoxication, and not 
from the day when that intoxication occasioned damage or loss or 
injury to the plaintiff.41 In Massachusetts, it is held that such an 
action is an action to recover a penalty or forfeiture, within the mean- 
ing of a statute prescribing a limitation for such suits, and if not 
brought within one year after the sales take place, it is barred by 
said statute.42 
Part II. What Persons are Entitled to Sue. 
§ 283. Wife or Widow. 
The great majority of actions under the civil damage laws are 
brought by injured and impoverished wives, in so much that the 
statutes might seem to have been enacted for their especial benefit. 
88 McGee v. McCann, 69 Me. 79. 
39 Friend v. Dunks, 37 Mich. 25; Scha- 
fer v. Boyce, 41 Mich. 256, 2 N. W. 
Rep. 1. 
40 Curran v. Owens, 15 W. Va. 208. 
41 Emmert v. Grill, 89 Iowa, 690. 
42 O'Connell v. O'Leary,145 Mass. 311, 
14 N. E. Rep. 143. 
334 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 284 
The fact that such laws specifically mention the "wife" of an intoxi- 
cated person as one to whom the right of action is given, has occa- 
sioned some question as to her right to maintain an action when the 
injury complained of is the death of the husband. It is argued that 
the statute is to be strictly construed, and no one has a right of 
action to whom it is not expressly given; that when the husband 
dies the plaintiff is no longer a "wife;" and that, as the act does 
not mention the "widow," she cannot sue. But the courts have 
unanimously repudiated this contention. The term used is descrip- 
tive of a class, and it is sufficient if she sustained the relation of 
wife at the time of the intoxication which caused the husband's 
death. The relation of wife, although essential, by the language of 
the statute, to the inception of the right of action, is not necessary 
in the prosecution of the remedy. The right of action vests in her 
at the time the defendant causes the intoxication of the person who 
subsequently dies, and having vested, the statute does not divest it 
upon the death of the husband, nor does it abate upon common law 
principles. By the death the plaintiff loses her character of wife, 
but her identity is not changed.43 
§ 284. Husband. 
A husband may maintain an action, under the civil damage law, 
for injury to his means of support, by the intoxication of his wife, 
caused by liquor sold her by the defendant; as when, in consequence 
of such intoxication, she is rendered incapable of doing her custom- 
ary work in the keeping of plaintiff's house and the care of his chil- 
dren, and he thereby loses her services in those respects. The wife 
is under no legal obligation to support the husband, but she may be, 
in fact, wholly or in part a means of support to him.44 But in 
Nebraska, where the statute provides that "the amount recovered 
shall be for the exclusive benefit of the widow and next of kin," it is 
held that the husband cannot recover for himself, in case of the death 
43Schneider v. Hosier, 21 Ohio St. 98; 
Hackett v. Smelsley, 77 Ill. 109; Roose 
v. Perkins, 9 Nebr. 304, 2 N. W. Rep. 
715, 31 Am. Rep. 409; Jackson v. Brook- 
ins, 5 Hun, 530. 
44 Moran v. Goodwin, 130 Mass. 158, 
39 Am. Rep. 443. 
335 § 286 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
of the wife, because, under the law of that state, he does not inherit 
from the wife, and therefore cannot be considered as within the 
designation "next of kin;" nor can he maintain an action as executor, 
unless it appears that there are next of kin who are entitled to the 
amount to be recovered, and the petition should state the existence 
of such persons.45 
§ 285. 
Father. 
Where liquor is sold to a minor, whereby he becomes intoxicated, 
and he thereafter becomes sick in consequence thereof, and the father 
is deprived of his services, and is compelled to expend money for 
medical attendance upon him, the father may maintain an action, 
under the civil damage law, to recover the damages occasioned 
thereby.46 But if the son is a major, and there is neither a subsist- 
ing family relation nor the relation of master and servant between his 
father and himself, the father is not within the terms of a statute 
which renders the seller of liquor to one already intoxicated civilly 
liable to "any one aggrieved" in person or property in consequence 
thereof; and if the father voluntarily expends money for medical serv- 
ices, etc., for the benefit of the son, he cannot recover against the liq- 
uor-seller.47 But on the other hand, if the father has voluntarily 
assumed the support of an indigent adult son, who is a "poor person" 
within a statute requiring a father, if of sufficient ability, to support 
such a son, he can recover against one who, by furnishing liquor to 
the son, rendered him helpless and a burden on his father, though 
the officers having charge of the poor have never taken the son into 
their custody.48 
§ 286. Dependent Mother. 
A widow who is dependent on her son for her support may main- 
tain an action in her own name, under the civil damage law, against 
a liquor-seller who, by his sales to the son, has deprived her of her 
45 Warren v. Englehart, 13 Nebr. 283, 
13 N. W. Rep. 401. 
46 Volans v. Owen, 9 Hun, 558. See 
Stevens v. Cheney, 36 Hun, 1. 
47Veon v. Creaton, 138 Pa. St. 48, 20 
Atl. Rep. 865. 
48 Clinton v. Laning, 61 Mich. 355, 28 
N. W. Rep. 125. 
336 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 288 
means of support or injured her therein.49 And in Massachusetts, it 
is held that the action given by the statute to the "parent" of a minor 
to whom liquor has been sold, may be maintained by his mother with- 
out proof that he has no father.60 
§ 287. Son or Daughter. 
Under the civil damage laws, as they are usually framed, the right 
of a child to maintain an action for damages caused by the furnish- 
ing of liquor to his parent depends upon his sustaining some personal 
or pecuniary injury, or being deprived of the means of support. But 
under the statute in Massachusetts, it is held that the right of action 
given to the child of a person in the habit of drinking liquor to ex- 
cess, against the person selling liquor to the parent, does not depend 
upon the minority of the child, or his inability to support himself by 
his own exertions. "The statute contemplates that the habitual drunk- 
enness of a husband or wife, parent or child, is a substantial injury to 
these bound together in domestic relations, and gives such a right to 
recover damages in the nature of a penalty, not only for any injury 
to the person or property, but for the shame and disgrace brought 
upon them. "61 
§ 288. Employer. 
Where the civil damage act gives a right of action to any "em- 
ployer" injured by acts falling within its terms, it is held that rail- 
road contractors may maintain a suit against a person who sells in- 
toxicating liquor to their hired hands, whereby such employes become 
intoxicated, so that they not only do not work themselves, but also 
prevent others of the hired hands from working. In such a case, the 
plaintiffs are injured in respect to their property and their means of 
support.62 
49McClay v. Worrall, 18 Nebr. 44, 24 
N. W. Rep. 429. 
so McNeil v. Collinson, 130 Mass. 167. 
81 Taylor v. Carroll, 145 Mass. 95, 13 
N. E. Rep. 348. 
62 Duroy v. Blinn, 11 Ohio St. 331. 
See Northern Pac. R. Co. v. Whalen, 3 
Wash. Ter. 452, 17 Pac. Rep. 890. 
intox.liq.-22 
337 § 290 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
§ 289. Stranger Injured by Intoxicated Person. 
If the statute, as is commonly the case, gives a right of action to 
any "husband, wife, . . . or other person who shall be injured, " 
etc., it is not necessary that the plaintiff should stand in any busi- 
ness or personal relation to the intoxicated person who did the dam- 
age. It is enough if he has been injured, in his person, property, or 
means of support, by a drunken man, whose intoxication was caused 
by the defendant. Thus, an action may be maintained by a person 
prevented from following his usual occupation by being beaten and 
wounded by an intoxicated person, against the seller of the liquor by 
which the intoxication was produced, and it is not necessary to make 
such intoxicated person a party defendant.53 So an action was sus- 
tained in a case where the intoxicated person, driving his buggy 
recklessly along the public street, ran into the plaintiff's vehicle and 
killed the plaintiff's horse.54 So, where defendant sold liquor to 
plaintiff's son-in-law, who, becoming intoxicated thereby, drove a 
team, behind which plaintiff's wife was riding, so recklessly as to 
upset the wagon and break the wife's arm, it was held that the plain- 
tiff was entitled to recover for the loss of her services and the expenses 
of medical attendance upon her.55 
§ 290. Town or Poor District. 
The civil damage law, it is held, does not extend so far as to ena- 
ble a town upon which a person not previously drawing support 
becomes dependent, under the poor laws, through injuries sustained 
in consequence of intoxication, to recover for support furnished to 
him, against the seller of the liquor. Thus, where one bought liquor 
and became intoxicated, and by reason of exposure in his helpless 
condition his feet were frozen, and he came upon the town for sup- 
port, and the town sued the liquor-seller for reimbursement, it was 
held that the plaintiff could not recover.56 
63English v. Beard, 51 Ind. 489; Bodge 
v. Hughes, 58 N. H. 614. 
64Flower v. Witkovsky, 69 Mich. 371, 
37 N. W. Rep. 364. 
65 Aldrich v. Sager, 9 Hun, 537. 
66 Hollis v. Davis, 56 N. H. 74. 
338 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 292 
§ 291. Intoxicated Person as Plaintiff. 
Under the civil damage law in Nebraska, which declares that a 
person licensed to sell liquor "shall pay all damages that the com- 
munity or individuals may sustain in consequence of such traffic," it 
has been held that the intoxicated person himself may in some cases 
have a right of action against the seller. Thus, where a person vol- 
untarily went to a licensed liquor-saloon, and bought and drank 
liquor, and became intoxicated, and lay down in the road in a stupe- 
fied and unconscious condition, and thereby his legs were frozen so 
that they had to be amputated, it was adjudged that he might recover 
damages against the person who sold him the liquor.57 This decis- 
ion, however, cannot be regarded as good law. It seems very clear 
that the case was one calling for the application of the maxim, volenti 
non fit injuria. And as for the words in the statute, italicized above, 
it must be perfectly apparent that they were intended to apply only 
to innocent third persons who might be injured by the fact or the 
consequences of the intoxication. In Michigan, where the law gives 
to "every wife ... or other person" a right of action against a 
liquor-seller for injury done the plaintiff by reason of the intoxication 
of any person, it is held that this does not entitle the intoxicated 
person himself to maintain an action against the dealer for money 
stolen from him while drunk.58 
§ 292. Seller Cannot Recover. 
However broad the terms of the statute may be, they will not 
authorize the vendor of liquor to maintain an action for damage 
which he sustains by the acts or behavior of a drunken man whose 
intoxication he himself brought about by furnishing him with liquor. 
By his acts he participates in the wrong. Whatever injury the intox- 
icated person may do to the person or property of the liquor-seller, 
the civil damage laws give the latter no redress. For the injury is 
57 Buckmaster v. McElroy, 20 Nebr. 
557, 31 N. W. Rep. 76. 
58 Brooks v. Cook, 44 Mich. 617, 7 N. 
W. Rep. 216, 38 Am. Rep. 282. 
339 § 293 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
regarded as the consequence of a state of affairs which he either 
intended or at least consented and contributed to.69 
§ 293. Joinder of Plaintiffs. 
Where the consequences of the intoxication of a person are pro- 
ductive of injury to more than one person,-as, to his wife and also 
to his children,-it becomes a question whether such persons are 
properly joined as plaintiffs in an action under the civil damage law, 
or should bring separate suits. In Nebraska, it is held that a mar- 
ried woman and her minor children, constituting one family, may 
join in an action for loss of the means of support against one who 
furnished liquor to the husband and father.60 And the same result is 
deducible from the language of the statutes in some other states. 
But elsewhere it is held that the wife and minor children may each 
maintain a separate action for damages, and hence they cannot prop- 
erly join as plaintiffs, nor can the wife, suing as sole plaintiff, recover 
any allowance in respect to her minor children.61 In a case in New 
York, where the cause of action was for the loss of certain money 
stolen from the intoxicated person, and his family consisted of a 
wife and four children, it was held that the wife, as plaintiff, could 
recover only her proportionate share of the amount, or one-fifth 
thereof. The court observed that although the law probably 
intended to give a single right of action and single damages to one 
person, yet it was so vaguely expressed that it did in effect give a 
right of action to the husband or wife and also to each of the chil- 
dren.62 As these statutes give a right of action to a wife in her 
own name, it is not necessary that the husband, whose intoxication 
69 Aldrich v. Harvey, 50 Vt. 162. 
60 Roose v. Perkins, 9 Nebr. 304, 2 N. 
W. Rep. 715, 31 Am. Rep. 409; Kerkow 
v. Bauer, 15 Nebr. 150, 18 N. W. Rep. 
27; Wardell v. McConnell, 23 Nebr. 152, 
36 N. W. Rep. 278; Jones v. Bates, 26 
Nebr. 693, 42 N. W. Rep. 751. 
61Rosecrants v. Shoemaker, 60 Mich. 
4, 26 N. W. Rep. 794; Larzelere v. Kirch- 
gessner, 73 Mich. 276, 41 N. W. Rep. 
488; Johnson v. Schultz, 74 Mich. 75, 41 
N. W. Rep. 865; Thomas v. Dansby, 74 
Mich. 398, 41 N. W. Rep. 1088; Delfel 
v. Hauson, (Wash.) 26 Pac. Rep. 220; 
Secor v. Taylor, 41 Hun, 123; Durein v. 
Pontious, 34 Kans. 353, 8 Pac. Rep. 428; 
McGee v. McCann, 69 Me. 79; Huggins 
v. Kavanagh, 52 Iowa, 368, 3 N. W. 
Rep. 409; Welch v. Jugenheimer, 56 
Iowa, 11, 8 N. W. Rep. 673. 
62 Franklin v. Schermerhorn, 8 Hun, 
112. 
340 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 294 
caused the injury of which she complains, should be joined as a 
co-plaintiff.63 
Part III. What Persons are Liable. 
§ 294. Immediate and Remote Vendor. 
As a rule, the liability under the civil damage laws is confined to 
the person who directly caused the intoxication complained of, by 
furnishing liquor to the inebriate. If the same liquor has passed 
through several hands, this does not establish a joint or successive lia- 
bility on the part of all those who have sold it. Thus, if A. sells liquor 
to B., and B. sells it to C., and C. thereby becomes intoxicated and 
injures D., the latter has a right of action against B. but not against 
A.64 But it is said that if the seller knew or had good reason to 
believe, when he sold the liquor, that the purchaser intended to share 
it with another person, and such other person does afterwards become 
intoxicated by it and is the cause of damage, then the seller will be 
liable to the person who is injured.65 If two separate liquor-sellers 
furnish liquor at different times to the same person, producing two 
separate fits of intoxication, with an interval of sobriety between, and 
injury results from the second fit of intoxication, the first seller is not 
liable therefor.66 Where a partnership engaged in selling liquors is 
dissolved, one of the partners retiring, and subsequently the other 
partner in good faith sells out the entire business to a stranger, and 
the license issued to the firm is surrendered, the retiring partner 
cannot be held liable, under the license and bond, for loss of sup- 
port to a wife caused by the death of her husband, resulting from 
the sale of liquor to him by the stranger who succeeded to the busi- 
ness of the firm.67 
63 Mitchell v. Ratts. 57 Ind. 259. 
64 Bush v. Murray, 66 Me. 472. 
65 Dudley v. Parker, 55 Hun, 29, 8 N. 
Y. Supp. 600. See Gullikson v. Gjourd, 
82 Mich. 503, 46 N. W. Rep. 723. 
66 Barks v. Woodruff, 12 III. App. 96. 
67 Scott v. Chope, (Nebr.)49 N. W. 
Rep. 940. 
341 § 297 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
§ 295. Person not a Liquor Seller. 
The terms of the civil damage laws, as they stand in most of the 
states, are broad enough to include all persons who furnish liquor to 
others and thereby cause intoxication and consequent injury. And 
in proper cases a liability might well be fastened upon persons who 
are not personally engaged in the business of selling liquor. But 
considerations drawn from the purpose and policy of such statutes, 
as well as from the forms of expression employed, show that they are 
not intended primarily to apply to persons who are not, either directly 
or indirectly, or in any way or to any extent, engaged in the liquor 
traffic. Hence, for example, the civil damage law does not give a 
right of action against one who gives, in his own home or elsewhere, 
a glass of liquor to a friend as a mere act of courtesy or hospitality, 
without any purpose or expectation of pecuniary gain or profit.68 
§ 296. Personal and Bonded Liability. 
The bonds required to be furnished by licensed dealers in liquor are 
in some states, as we have already seen,69 conditioned for the pay- 
ment of judgments recovered against them under the civil damage 
laws, as well as of fines and costs assessed for violations of the gen- 
eral liquor law. It is held, however, that the fact that the saloon- 
keeper furnishing the liquor is made liable on his bond does not pre- 
vent the wife and minor children of the person to whom it was 
furnished from suing him personally; the effect of the law is to give 
a double remedy or a choice of remedies.70 
§ 297. Sureties on Dealer's Bond. 
The sureties on a liquor-dealer's bond, conditioned for the pay- 
ment of any judgment recovered under the civil damage laws, are of 
course responsible only after a recovery against the principal has 
<« Cruse v. Aden, 127 Ill. 231, 20 N. E. 
Rep. 73; s. c., 21 Ill. App. 391. 
• Supra, §§ 197,198. 
70 Jones v. Bates, 26 Nebr. 693, 42 N. 
W. Rep. 751; Mulcahy v. Givens, 115 
Ind. 286, 17 N. E. Rep. 598. 
342 Ch. 13] 
§ 298 
CIVIL DAMAGE LAWS. 
been adjudged. But if it is covenanted in the bond that the dealer 
will not sell to certain persons, (as, to one whose wife has forbidden 
such sale,) and the condition of the bond is made to include the 
keeping and performance of such covenant, then the wife's right of 
action, upon a sale in violation of the covenant, at once accrues 
against principal and sureties jointly, and she need not first obtain a 
judgment against the principal.71 The sureties are liable for exem- 
plary as well as compensatory damages to any amount not exceeding 
the bond.72 And where, during the existence of a license based on 
such bond, the principal sells to one who is disqualified to earn a 
support for his family by reason of his intoxication, the liability of 
the surety attaches, and continues throughout the period of such dis- 
qualification, whether it terminates during the license year or con- 
tinues longer.73 Further, principals and their sureties on license 
bonds are liable to an action for damages jointly with the principals 
and sureties on other bonds of a like character, where all the princi- 
pals have contributed to the same injury.74 
§ 298. Liability of Master for Acts of Servant. 
In accordance with the general principles governing the relation 
of master and servant, it is held that a liquor-dealer is responsible 
for actionable injuries under the civil damage laws, caused by sales 
of liquor made by his agents or servants within the general scope 
of their employment, though the particular sale in question was made 
without the knowledge or consent of the master, and even though it 
was made in disobedience of his general or specific orders.76 In 
Illinois, however, it is held that where, in good faith, the employe of 
a liquor-dealer is instructed not to sell to a person who is in the 
71 Anthony v. Krey, 70 Mich. 629, 38 
N. W. Rep. 603. 
72 Richmond v. Shickler, 57 Iowa, 486, 
10 N. W. Rep. 882. 
73 Wardell v. McConnell, 23 Nebr. 152, 
36 N. W. Rep. 278. 
74 Wardell v. McConnell, 23 Nebr. 152, 
36 N. W. Rep. 278. 
75 George v. Gobey, 123 Mass. 289, 35 
Am. Rep. 376; Bodge v. Hughes, 53 N. 
H. 614; Smith v. Reynolds, 8 Hun, 128; 
Barnaby v. Wood, 50 Ind. 405; Keedy v. 
Howe, 72 Ill. 133; Worley v. Spurgeon, 
38 Iowa, 465; Kreiter v. Nichols, 28 
Mich. 496; Kehrig v. Peters, 41 Mich. 
475, 2 N. W. Rep. 801; Gullikson v. 
Gjourd, 82 Mich. 503, 46 N. W. Rep. 
723. 
343 § 299 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
habit of becoming intoxicated, and the servant wilfully disobeys 
the instructions, the principal is not liable to exemplary damages.76 
And this rule appears to be very well founded, inasmuch as, in the 
case supposed, the master could not be charged with malicious, 
wanton, or wilful conduct. And it is apparent that the general prin- 
ciple must be restricted to the case of persons actually in the 
employment of the defendant or in some way authorized by him to 
make the sales complained of. If the liquor was dispensed by a mere 
volunteer or trespasser, meddling with defendant's property with- 
out any permission or authority, the defendant cannot be held respon- 
sible, even though he afterwards demands and receives payment for 
the liquor.77 Where the statute provides that "any person who shall 
. . . cause the intoxication of any other person" shall be liable 
in damages, the person who actually makes the sale of liquor is per- 
sonally liable for the injurious consequences which result, whether 
he be the owner himself or the clerk, servant, or agent of the owner.78 
§ 299. Joint Liability. 
If several persons, by selling or furnishing liquor, contribute to an 
intoxication which results in actionable injuries under the civil dam- 
age law, their responsibility is that of joint tort-feasors. That is, 
they are all jointly liable, and each is severally liable, for the entire 
damages; the plaintiff may proceed against any one of the wrong- 
doers, without any reference to the extent or degree in which his own 
sales contributed to the state of intoxication, or against all jointly; 
and a recovery against one (without satisfaction) will not bar an 
action against another.79 "The cause of action under the statute is 
76 Brantigam v. While, 73 Ill. 561; 
Keedy v. Howe, 72 Ill. 133; Fentz v. 
Meadows, Id. 540. 
77 Kreiter v. Nichols. 28 Mich. 496. 
See, also, Kennedy v. Sullivan, (Ill. 
Sup.) 26 N. E. Rep. 382. 
78 Worley v. Spurgeon, 38 Iowa, 465; 
Barnaby v. Wood, 50 Ind. 405. 
79 Bryant v. Tidgewell, 133 Mass. 86; 
Taylor v. Wright, 126 Pa. St. 617, 17 
Atl Rep. 677; Boyd v. Watt, 27 Ohio St. 
259; Fountain v. Draper, 49 Ind. 441; 
O'Leary v. Frisbey, 17 Ill. App. 553; 
Buckworth v. Crawford, 24 Ill. App. 
603; Kearney v. Fitzgerald, 43 Iowa, 
580; Roose v. Perkins, 9 Nebr. 304. 2 N. 
W. Rep. 715, 31 Am. Rep. 409; Wardell 
v. McConnell, 23 Nebr. 152, 36 N. W. 
Rep. 278; Jones v. Bates, 26 Nebr. 693, 
42 N. W. Rep. 751. Compare Jackson 
v. Brookins. 5 Hun, 530; Morenus v. 
Crawford, 15 Hun, 45. 
344 Ch. 13] 
§ 299 
CIVIL DAMAGE LAWS. 
in the nature of a tort. Persons contributing to the injury may be 
sued jointly or separately. When jointly sued, the recovery may be 
against all of the defendants or against part of them only; and the 
judgment recovered may be reversed as to some and affirmed as to 
others."80 Hence, in an action against a sole defendant, under 
these statutes, it is no defense for him to show that part of the liquor 
causing the intoxication was sold by others, if he furnished the rest.81 
At the same time, it must be remembered that a defendant is only 
liable for damages resulting from the particular act or state of affairs 
to which he contributed, notwithstanding it may be difficult to sepa- 
rate from them the damages to which he did not contribute.82 It 
therefore makes an important difference whether the injury com- 
plained of is the result of one specific state of intoxication, or is a 
particular grievance or injury preceded and induced by a condition 
of habitual intemperance. For example, if one continuous debauch 
ends in a disaster, all the sellers who have furnished liquor to the 
drunkard during its progress are liable for the result. A dealer who 
furnishes liquor to a partially intoxicated person is liable for that 
person's death resulting from intoxication a few hours later, although, 
during the interval, he drank at other saloons.83 "In such a case," 
says the court in Pennsylvania, "it would be impossible for the jury 
to say which particular glass of liquor was the proximate cause of 
his death. Each glass did its share of the work."84 But on the 
other hand, where the injury complained of proceeds not from a 
particular state of intoxication, but rather from a general besotted 
condition, those who may have contributed to such condition by the 
sale of liquors are not jointly liable with those who may have con- 
tributed to the immediate act.88 Thus, where a woman sued in one 
80 Reugler v. Lilly, 26 Ohio St. 48. 
81 Woolheather v. Risley, 38 Iowa, 
486; Hackett v. Smelsley, 77 Ill. 109; 
Werner v. Edmiston, 24 Kans. 147. 
82 Huggins v. Kavanagh, 52 Iowa, 
368, 3 N. W. Rep. 409; Flint v. Gauer, 
66 Iowa, 696, 24 N. W. Rep. 513. In an 
action under the civil damage law, an 
instruction that if defendant sold the 
liquor which, with that sold to plain- 
tiff's husband by others, produced "fits 
of intoxication, " he was liable for all 
the damage caused, was held erroneous, 
as each seller was only liable severally 
for his own acts. Richmond v. Shick- 
ler, 57 Iowa, 486,10 N. W. Rep. 882. 
83 Mayers v. Smith, 25 Ill. App. 67; 
affirmed, 121 Ill. 442, 13 N. E. Rep. 216. 
84 Taylor v. Wright, 126 Pa. St. 617,17 
Atl. Rep. 677. 
85 Hitchner v. Ehlers, 44 Iowa, 40. 
345 § 300 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
action several liquor-dealers to recover damages caused by the 
demoralization and death of her husband, he having long been addicted 
to drinking, and having lost his life from an accident resulting from 
his intoxication, it was held that the fact of his being an habitual 
drunkard could not be deemed, in a legal sense, the cause of his 
death, although but for that he might not have drunk the liquor 
which intoxicated him on the day of his death; and that the dealers 
who contributed to his habitual intoxication could not be jointly sued 
with those who caused the particular intoxication resulting in bis 
death.86 But if the plaintiff's cause of action is not founded upon a 
specific act of injury resulting from a particular fit of intoxication, 
but upon injury to her property or means of support caused by the 
habitual drunkenness of her husband, extending over a period of 
time, then all the dealers who furnish him with liquor during such 
time, knowing his habit of intemperance, and whose sales contribute 
to keep up such habit, are liable for the damages, though there was 
no concert or connection between them.87 
§ 300. Plaintiff can have but one Satisfaction. 
The party having a cause of action under the civil damage law 
may elect to proceed severally or jointly against the persons who 
caused the intoxication, but there can be but one satisfaction for the 
injury. A recovery and satisfaction by the party injured against one 
would constitute an effectual bar to any recovery against another who 
may have in part contributed to cause the intoxication.88 And when 
separate judgments have been recovered against the several parties 
liable, the plaintiff must elect upon which of the judgments he will 
rely, as a lien on the premises where the sale took place, as the sat- 
isfaction of one judgment will discharge the rest.89 But if the causes 
86 Tetzner v. Naughton, 12 Ill. App. 
148. 
87 Rantz v. Barnes, 40 Ohio St. 43; 
Cox v. Newkirk, 73 Iowa, 42, 34 N. W. 
Rep. 492; Arnold v. Barkalow, 73 Iowa, 
183, 34 N. W. Rep. 807. See Kirchner 
v. Myers, 35 Ohio St. 85, 35 Am. Rep. 
598. 
88 Emory v. Addis, 71 Ill. 273; Com- 
stock v. Hopkins, (Sup.) 15 N. Y. Supp. 
908. See 2 Black, Judgm. § 782. 
89Putney v. O'Brien, 53 Iowa, 117, 4 
N. W. Rep. 891. 
346 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 301 
of action in two suits brought against different defendants are in fact 
distinct, although the declarations are identical in form, the accept- 
ance, by the plaintiff, of a sum of money in satisfaction and discharge 
of the cause of action in one suit will be no defense in the other case.90 
Under a statute giving an action, either severally or jointly, against 
the person or persons contributing to the intoxication of another by 
selling or giving him liquor, in favor of the party injured thereby, it 
is held that a release of one person against whom such a demand 
exists, by the payment of a sum of money, is a release of another 
liable for the same injury, although their liability arose from inde- 
pendent and distinct sales, having no connection with each other.91 
Where the local practice allows a plaintiff, having obtained a verdict 
against two jointly and severally liable, to dismiss as to one and take 
judgment against the other, this course may be pursued in an action 
against two under the civil damage law.92 
§ 301. Liability of Lessor of Premises. 
In many of the states, the civil damage laws provide that the owner 
or lessor of property, who knowingly permits the sale of liquor on the 
premises, shall be liable for all actionable injuries caused by such 
sale on the premises. Although the cause of action is the causing 
or contributing to the intoxication of a person, whether done by sell- 
ing liquor or owning the building in which liquor is sold or kept for 
illegal sale with the knowledge of the owner,93 yet the saloon-keeper 
and the owner of the premises are not to be regarded as joint tort- 
90 Miller v. Patterson, 31 Ohio St. 419. 
And in such action, evidence that plain- 
tiff has commenced another similar ac- 
tion against another liquor-seller, for 
damages accruing during the same pe- 
riod, is not admissible. Ward v. Thomp- 
son, 48 Iowa, 588. 
91 Aldrich v. Parnell, 147 Mass. 409, 
18 N. E. Rep. 170. Per contra, Jewett v. 
Wanshura, 43 Iowa, 574. But the court 
in Massachusetts, in the case cited, dis- 
tinguished Jewett v. Wanshura, on the 
ground that the Iowa statute gave no 
joint right of action, and the court, in 
the case referred to, held that in the cir- 
cumstances of the case, no joint action 
would lie, because the sales by the sev- 
eral parties were on separate days, and 
that each seller was only liable for the 
injury produced by his own acts. Kear- 
ney v. Fitzgerald, 43 Iowa, 580, was 
cited in support of this distinction. 
92 Buckworth v. Crawford, 24 Ill. App. 
603. 
93 McGee v. McCann, 69 Me. 79. 
347 § 301 
[Ch. 13 
LAW OF INTOXICATING LIQUOKS. 
feasors.94 And although the two persons may be joined as defend- 
ants in one action,95 yet this is not absolutely necessary; but an 
action may be first prosecuted to judgment against the saloon-keeper, 
and the judgment afterwards established as a lien on the premises 
in a suit against the landlord.96 This provision in the statute, it is 
held, does not apply to the owner of property who himself sells 
liquor therein, but applies to owners who permit others to occupy 
and use the property for such purposes.97 And it should not be con- 
strued to make liable those having only reversionary or contingent 
interests in the property, and who do not control the letting.98 A wife 
owning a building and knowingly permitting her husband to carry on 
the business of selling intoxicating liquors therein, is liable under the 
civil damage act, even though her title and the joint possession were 
acquired before the passage of the act; because it is presumed that 
the possession originally taken was continued in view of the laws of 
the state thereafter enacted.99 And one who, subsequent to the com- 
mencement of an action for damages for the unlawful sale of liquors, 
purchases from a party defendant real property upon which a lien 
is sought to be established, takes the same subject to the judgment 
that may finally be recovered against such owner therein.100 But the 
statute does not apply to the owner of a steamboat navigating a river, 
which has a bar-room on board where the sales complained of were 
made. Such a vessel is not within the meaning of the words "build- 
ing or premises" as used in the act.101 Where the action is brought 
jointly against the seller and his landlord, the latter, in the absence 
of any evidence to show that he had knowledge of the circumstances 
under which the particular sale was made, is held, in some states, not 
liable to pay exemplary damages.102 But in other states, the act 
94 McVey v. Marratt, 80 Iowa, 132, 45 
N. W. Rep. 548. 
96 Jackson v. Brookins, 5 Hun, 530; 
La France v. Krayer, 42 Iowa, 143; 
Buckham v. Grape, 65 Iowa, 535, 17 N. 
W. Rep. 755. 
96 McVey v. Marratt, 80 Iowa, 132, 45 
N. W. Rep. 548. 
97 Barnaby v. Wood, 50 Ind. 405. 
98 Castle v. Fogerty, 19 Ill. App. 442. 
99 Mead v. Stratton, 87 N. Y. 493, 41 
Am. Rep. 386. 
ioo O'Brien v. Putney, 55 Iowa, 292, 7 
N. W. Rep. 615. 
101 Rouse v. Catskill & N. Y. Steam- 
Boat Co. (Sup.) 13 N. Y. Supp. 126, 35 
N. Y. St. Rep. 491. 
102 Ketcham v. Fox, 52 Hun, 284, 5 N. 
Y. Supp. 272. Compare Reid v. Ter- 
williger, 42 Hun, 310. 
348 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 302 
expressly declares that he shall be liable to such damages. And if 
the provision is merely for the enforcement against his property of the 
judgment recovered against the tenant, it is of course immaterial 
whether or not punitive damages enter into the composition of the 
judgment. 
§ 302. Knowledge and Consent of Owner. 
Under the statutory provisions adverted to in the last section, the 
knowledge and consent of the owner, in relation to the use of his 
premises for the sale of liquor, should not be left to mere inference 
or conjecture, but should be established by clear and satisfactory 
proof.103 This, however, does not preclude the use of circumstantial 
evidence to show these facts. And where the owner or his agent, 
knowing the entire business carried on to be unlawful, consents to 
the use of the property for such purpose, the property is liable, though 
neither of them knew of the particular sales complained of.104 Where 
the evidence showed that complainant's husband was a notorious 
drunkard, and was habitually drunk on the streets and in the saloon, 
and that the owner lived near the saloon and sometimes visited it, 
this was held sufficient to show the knowledge and consent of the 
owner.105 So the plaintiff may prove that the tenant was indebted 
to the landlord for liquors and for rent, to show their business 
relations.106 The knowledge of the owner may also in some cases 
be constructive or imputed. Thus, a wife, whose husband rents the 
premises to a liquor-dealer and looks after the property for her, is 
chargeable with his knowledge that intoxicating liquors are being 
sold on the premises contrary to law.107 So where the owner resides 
in another place, and leaves the entire management and control of 
the premises to a resident agent, and has no personal knowledge of 
the purpose for which the property is being used, still if the agent 
103 Mead v. Stratton, 8 Hun, 148; Myers 
v. Kirt, 64 Iowa, 27, 19 N. W. Rep. 846. 
104 Wing v. Benham, 76 Iowa, 17, 39 
N. W. Rep. 921. 
105 McVey v. Marratt, 80 Iowa, 132, 45 
N. W. Rep. 548. 
106 Campbell v. Schlesinger, (Sup.) 1 
N. Y. Supp. 220, 16 N. Y. St. Rep. 435. 
107 Johnson v. Grimminger, (Iowa,)48 
N. W. Rep. 1052. 
349 § 303 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
knows that the building is Used as a liquor-saloon, the same knowl- 
edge is imputable to the principal.108 Besides the knowledge of the 
owner of the premises, it is also necessary, under these statutes, to 
show his consent to the use of the property as a liquor-saloon.109 
And such consent is not necessarily established by proof of circum- 
stances tending to show knowledge merely.110 Yet it need not be 
shown by any positive affirmative act, but may be inferred from 
circumstances, and from knowledge of the illegal sales under such 
conditions as properly to call forth a protest, and a failure to make 
any objection.111 Where a joint action is brought against the seller 
of the liquor and the owner of the premises, the latter is entitled to 
a trial by jury to determine whether he consented to or had knowl- 
edge of the sale.112 
§ 303. Establishment of Lien on Premises. 
In Iowa, the code provides that fines, costs, and judgments against 
any person for the unlawful sale of liquor shall be a lien on all 
property used or occupied for such purposes with the owner's knowl- 
edge. No lien attaches, it is held, until the fines or costs are assessed, 
or the judgments rendered, and an injunction on the sale of prop- 
erty alleged to have been so used and occupied, pending proceedings 
for unlawful sales, should be dissolved.113 The judgment against the 
saloon-keeper is not evidence of the amount to which the property 
of the landlord should be subjected, and, in order to prove the land- 
lord's liability as great as the amount of the judgment, it is not nec- 
essary to prove all the facts that went to make up the judgment, if 
such liability is established by other facts.114 The property may 
become liable by reason of sales made prior to the time when it was 
shown the owner first learned of the sales; for the statute does not 
108Hall v. Germain, (Sup.) 14 N. Y. 
Supp. 5. 
109 Meyers v. Kirt, 57 Iowa, 421, 10 N. 
W. Rep. 828. 
110 Cox v. Newkirk, 73 Iowa, 42, 34 N. 
W. Rep. 492. 
111 Loan v. Etzel, 62 Iowa, 429, 17 N. 
W. Rep. 611. 
112 Loan v. Hiney, 53 Iowa, 89, 4 N. 
W. Rep. 865. 
113 Bonesteel v. Downs, 73 Iowa, 685, 
35 N. W. Rep. 924. 
114 McVey v. Marratt, 80 Iowa, 132, 45 
N. W. Rep. 548. 
350 Ch. 13] 
§ 304 
CIVIL DAMAGE LAWS. 
contemplate that the judgment may-be split up and a part only 
charged as a lien on the building.115 It is also held that the front 
part of a house that is a homestead, used by the husband of the 
owner, with her consent, as a liquor-saloon, is not exempt from the 
lien of a judgment recovered under the civil damage laws.116 In Ohio, 
it is held that the lien of a judgment recovered under the liquor law 
of 1870 is limited to the real estate of the judgment-debtor; and the 
judgment-creditor acquires no interest in the property not owned by 
the judgment-debtor, until the commencement of the suit to subject 
the same to the payment of the judgment.117 
Part IV. The Cause of Action. 
§ 304. Elements of the Right of Action. 
Under the civil damage laws of the more usual type, any person 
may maintain an action for injuries of a certain character suffered 
by or inflicted upon him, through the intoxication of a third person, 
or by the acts of such person while drunk, when the intoxication was 
caused, entirely or in part, by liquor furnished by the defendant.118 
But as the action is statutory, all the statutory requisites must be 
present before the suit can be sustained. Thus, there must be a 
"sale," "gift," or "furnishing" of liquor, according to the terms of the 
act. If, for instance, an action is given against one who shall "sell 
or give" liquor to a minor, it does not apply to the case of liquor 
115 Arnold v. Barkalow, 73 Iowa, 183, 
34 N. W. Rep. 807. 
116 Arnold v. Gotshall, 71 Iowa, 572, 32 
N. W. Rep. 508. In this case it was 
said: "A part of the premises and build- 
ing upon and in which a family reside, 
which is not used for the purposes of a 
homestead, is not exempt from a judg- 
ment against the owner; that is, a build- 
ing and the lot on which it is situated 
may be partly a homestead, and partly 
subject to execution, depending upon 
the purposes for which the respective 
parts are used. . . . Code, § 1988, 
declares that ' where there is no special 
declaration of the statute to the con- 
trary, the homestead of every family, 
whether owned by husband or wife, is 
exempt from judicial sale.' In our 
opinion. Code, § 1566, is a ' special dec- 
laration of the statute ' to the effect 
that a homestead, or a part of a home- 
stead, used as a saloon, is subject to 
judgments obtained for violations of 
the laws against the sale of intoxicating 
liquors. " 
117 Bellinger v. Griffith, 23 Ohio St. 
619. 
118 Schafer v. State, 49 Ind. 460. 
351 [Ch. 13 
§ 306 
LAW OF INTOXICATING LIQUORS. 
delivered to a minor but ordered and paid for by another person.119 
Again, the fact that defendant has continually sold liquor to plain- 
tiff's husband against her request is not enough to give her a right 
of action; the intoxication of the husband must have been caused to 
the plaintiff's damage.120 And the liquor sold must contribute to the 
particular intoxication by which the plaintiff sustains injury.121 Fur- 
ther, if the statute defines the classes of injuries for which an action 
will lie, the particular case must be shown to involve an injury of 
one or other of these classes, otherwise no recovery can be had.122 
But it is not necessary, in order to maintain a suit under the civil 
damage law, against the seller of liquors, that an action should also 
be maintainable against the intoxicated person on the same state of 
facts.123 
§ 305. Illegality of Sale Necessary to Found Action. 
In several of the states, (though not in all,) the civil damage laws 
make it an essential prerequisite to the maintenance of an action 
thereunder that the sale or furnishing of liquor causing the intoxica- 
tion complained of should have been illegal, that is, contrary to the 
provisions of some statute of the state.124 In Indiana, where the 
right of action is given against any person who shall sell, barter, or 
give away any intoxicating liquors "in violation of any of the provis- 
ions of this act," it is held that the provision in question cannot be 
extended by construction to include violations of other statutes passed 
since it went into effect.126 
§ 306. Injuries to Person. 
The civil damage laws specify "injuries to the person" as one of 
the causes for which an action may be maintained against the liquor- 
119 St. Goddard v. Burnham, 124 Mass. 
578. 
120 McEntee v. Spiehler, 12 Daly, 435. 
121 Welch v. Jugenheimer, 56 Iowa, 
11, 8 N. W. Rep. 673. 
122Fentz v. Meadows, 72 Ill. 540. 
123 Quain v. Russell, 8 Hun, 319. 
124 Sibila v. Babney, 34 Ohio St. 399; 
Baker v. Beckwith, 29 Ohio St. 314; 
Granger v. Knipper, 2 Cin. R. 480; My- 
ers v. Conway, 55 Iowa, 166, 7 N. W. 
Rep. 481; Peacock v. Oaks, (Mich.) 48 
N. W. Rep. 1082. 
125State v. Cooper, (Ind. Sup.) 13 N. 
E. Rep. 861. 
352 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 307 
seller. It is held that an action cannot be sustained, under this 
clause, without showing an assault upon the plaintiff by the intoxi- 
cated person, or some actual violence, or some physical injury to the 
person or the health; and it is not sufficient to show mere mental 
anguish, disgrace, or a loss of society or companionship.126 Thus, 
abuse of a wife by cursing her, when under the influence of liquor,127 
or calling her a prostitute in the presence of her neighbors and 
threatening to kill her,128 does not constitute a ground for the recov- 
ery of damages against the liquor-seller, unless it is further shown 
that such conduct injured or impaired her health. But on the other 
hand, where an intoxicated husband, without actual violence, but 
by abusive language and intimidation, drove his wife out of the 
house and kept her out for several hours, it was held that she had 
been injured in her person, so as to sustain the action, and that, a 
substantial ground of action being thus shown, she might also recover 
for the injury to her feelings from the indignity suffered by her.129 
And of course, if the husband, while drunk, assaults and beats his 
wife, it is plain that she has a cause of action, under the clause in 
question, against the saloon-keeper who furnished him with liquor.130 
It is further to be remarked that a stranger who is injured in his per- 
son by the violent or reckless conduct of a drunken man, as by being 
set upon or beaten, or shot and wounded, has a right to recover dam- 
ages against the person or persons who supplied the liquor which 
caused the intoxication.131 
§ 307. Injuries to Property. 
Another ground of action specified by the civil damage laws is 
"injury to property." Under this clause, an action will lie against a 
vendor of liquor by a married woman for damages sustained by her 
by reason of her money being spent by her husband for liquor, or 
squandered by him while intoxicated, or in the saloon of the liquor- 
126 Mulford V. Clewell, 21 Ohio St. 191. 
127 Albrecht v. Walker, 73 Ill. 69. 
128 Calloway v. Laydon, 47 Iowa, 456, 
29 Am. Rep. 489. 
129 Peterson v. Knoble, 35 Wis. 80. 
130 Wilson v. Booth, 57 Mich. 249, 23 
N. W. Rep. 799. 
131 King v. Haley, 86 Ill. 106, 29 Am. 
Rep. 14; English v. Beard, 51 Ind. 489; 
Bodge v. Hughes, 53 N. H. 614. 
INTOX.LIQ. 23 
353 § 308 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
seller.132 So if a wife has a horse which she claims and uses as her 
own with the knowledge of her husband, and he sells it while drunk, 
and squanders the proceeds, she may recover its value from the seller 
of the liquor causing the intoxication.133 On the same principle, if 
the husband takes the wife's chattels and sells them to the liquor- 
dealer, she may maintain an action against the latter; and it is not 
necessary that she should first have demanded the return of the prop- 
erty, or notified the defendant that she claimed it as her own; because 
the action is not for the defendant's conversion of the property, but 
for the husband's conversion of it while under intoxication caused 
by defendant; the wrongful act of the defendant is not the conversion 
of the goods, but the sale of the liquor.134 In a recent case in the 
supreme court of New York-Strcever v. Birch, (Sup.) 17 N. Y. Supp. 
195,-it appeared that plaintiff entered into a verbal contract with an 
infant to provide him with board, medical attendance, care in case of 
sickness, etc., in consideration of services to be rendered during his 
minority. While working under such contract, the infant, being 
intoxicated by liquor furnished by defendant, fell and was seri- 
ously injured, and in consequence of such injury was incapacitated 
for services for a long time, during which time plaintiff duly cared for 
him under his contract. It was held that, as the contract with the 
infant was executory and not enforceable, and plaintiff could recover 
from the infant for the necessaries furnished, an action would not lie 
by the plaintiff under the civil damage law during the infant's minor- 
ity, plaintiff not being injured in his "property" within the meaning 
of the statute. 
§ 308. Injuries to Means of Support. 
The third ground of action provided for by the civil damage laws 
is injury to the plaintiff's "means of support." This, it is said, 
creates a new right of action; and it is not necessary, to sustain 
such an action, that the injury alleged should be a common law 
132 Greenlee v. Schoenheit, 23 Nebr. 
669, 37 N. W. Rep. 600. 
133 Woolheather v. Risley, 38 Iowa, 
486. 
134 Mulford v. Clewell, 21 Ohio St. 191. 
354 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 308 
injury or one previously remediable by suit.135 In regard to the 
phrase quoted, it has been remarked: "This phrase was in common 
use at the time and long before the passage of this statute. It then 
was and still is as well understood as most words and phrases in the 
English language. It is commonly used in the plural form, but often 
in a singular sense. In its general sense, it embraces all those 
resources from which the necessaries and comforts of living are or 
may be supplied, such as lands, goods, salaries, wages, or other 
sources of income. In its limited sense, it signifies any resource from 
which the wants of life may be supplied."136 
In the discussion of this subject, it is first necessary to remark 
that a wife has an interest in her husband's capacity to perform labor 
as a means of support. And if his intoxication, habitual or other- 
wise, so impairs or destroys his powers and faculties as to incapaci- 
tate him and render him unable to labor, or results in accidents or 
injuries which produce the same result, then the wife is injured in 
her means of support, so as to be able to maintain an action under 
the statute.137 And in such action, she may show, as bearing on 
the question of damages, that the husband was unable to obtain 
employment, in consequence of habits of intoxication caused by 
defendant's acts.138 So where a drunken man commits a murder, 
and is convicted and sentenced to imprisonment for life, the wife 
may recover damages from the dealer who sold him the liquor.139 
The same principle applies if the husband, without being incapaci- 
tated for labor, falls into such idle and dissolute habits and so neglects 
his opportunities for earning money, by reason of his addiction to 
drink, that his family, having no other resources, become objects of 
public charity.140 
In the next place, a married woman has the right to rely upon 
being supported by her husband, and is entitled to damages from the 
person who injures her in her means of support by the sale of liquor 
i33 Volans v. Owen, 74 N. Y. 526, 30 
Am. Rep. 337. 
136 Schneider v. Hosier, 21 Ohio St. 98. 
137 Schneider v. Hosier, 21 Ohio St. 98; 
Volans v. Owen, 74 N. Y. 526, 30 Am. 
Rep. 337; Elshire v. Schuyler, 15 Nebr. 
561, 20 N. W. Rep. 29. 
138 Roth v. Eppy, 80 Ill. 283. 
139 Beers v. Walhizer, 43 Hun, 254. 
140 Jockers v. Borgman, 29 Kans. 109, 
44 Am. Rep. 625. 
355 § 308 
LAW OF INTOXICATING LIQUORS 
[ :h. 13 
to her husband, irrespective of his conduct, as regards habits of 
industry or idleness, previous to such sales.141 Even though, for many 
years, he has been an habitual drunkard and has contributed noth- 
ing to her support, still she is not precluded from maintaining her 
action.142 And the fact that the wife has independent means of her 
own, or is able-bodied and can earn a livelihood for herself, will not 
defeat her right of action against a person who sells liquor to her 
husband which causes his intoxication and death, and thus deprives 
her of her legal supporter.143 But of course if, at the time of the 
husband's death, the plaintiff was in fact supported by his labor and 
had no other means of support, evidence of the fact is proper and 
admissible?44 And as she is required to show that, during the period 
of the sales complained of, she was deprived, in whole or in part, of 
the support of her husband, evidence that she was supported by her- 
self and by the county is material.145 
As concerns the degree in which the resources of a family must be 
reduced before it can be said that the wife and children are injured 
in their means of support, it is to be observed that "support" includes 
more than mere board, lodging, and clothing. Although the bare 
necessaries of life may remain, it does not follow that the means of 
support are not impaired. Neither beggary nor a mere subsistence 
is the point at which the right of action begins. It is true, as 
remarked by the court in Illinois, that the law was not intended as 
a means of speculation, but as a protection against injury to the wife 
and children of the drunkard, to preserve the property used by the 
family from destruction or injury, and to protect the family against 
immediate or probable want of adequate support; not to enable the 
affluent, or those well provided for, to sue and recover, merely because 
the husband and father becomes intoxicated, and, while in that con- 
141 Woolheather v. Risley, 38 Iowa, 
486. 
142 Rouse v. Melsheimer, 82 Mich. 172, 
46 N. W. Rep. 372. 
143 Hackett v. Smelsley, 77 Ill. 109. But 
on the question of whether or to what 
degree a woman is injured in her means 
-of support, by reason of defendant's 
sales of liquor to her husband, causing 
his intoxication and death, it may be 
shown that she has since married again. 
Sharpley v. Brown. 43 Hun, 374. 
144Mayers v. Smith, 121 Ill. 442, 13 N. 
E. Rep. 216. 
145Fox v. Wunderlich, 64 Iowa, 187, 
20 N. W. Rep. 7. 
356 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 308 
dition, loses time, neglects his business, or becomes injured, or earns 
less money, and hence is not possessed of as large means as he 
otherwise would have been.146 But it is equally true that a wife's 
right of support is not limited to the bare necessaries of life, but 
embraces comforts suitable to her situation and her husband's condi- 
tion in life. "The loss of those comforts which are suitable to her 
condition in life is as much an injury to the wife's means of support 
as the loss of the necessaries of existence."147 
In an action of this character, the plaintiff's husband may prop- 
erly be permitted to state about how much he had paid the defend- 
ant for liquors during the time for which damages are sought to be 
recovered, as a fact tending to show the injury the wife has received 
in her means of support.148 And the wife may testify as to the 
amount per week necessary to support the family comfortably; for 
while such evidence would not be competent as establishing the meas- 
ure of damages, yet it would be competent as tending to inform the 
jury as to the value of the means of support of which the plaintiff 
had been deprived.149 
Finally, it is proper to add that although actions for injuries to 
the means of support are most usually brought by the wives of drunk- 
ards, such right of action is by no means confined to such persons, 
but extends to all who come within the conditions of the statute. 
Minor children, for instance, dependent upon their parent, are clearly 
entitled to maintain a suit for this cause. And it is held that a 
husband may maintain an action for injury to his means of sup- 
port by the loss of his wife's services caused by her intoxication.160 
So also, where the employes of railroad contractors become intoxi- 
cated with liquor furnished by defendants, so as to be unable to 
work and so as to interfere with the labor of their fellow-servants, it 
is said that the employers are injured in respect to their means of 
148 Confrey v. Stark, 73 Ill. 187. 
147McMahon v. Sankey, (Ill. Sup.) 24 
N. E. Rep. 1027; Hackett v. Smelsley, 
77 Ill. 109; Thill v. Polman, 76 Iowa, 638, 
41 N. W. Rep. 385. 
148 Ward v. Thompson, 48 Iowa, 588; 
Horn v. Smith, 77 Ill. 381. 
149 Warrick v. Rounds, 17 Nebr. 411,22 
N. W. Rep. 785. 
160Moran v. Goodwin, 130 Mass. 158, 
39 Am. Rep. 443. 
357 [Ch. 13 
§ 309 
LAW OF INTOXICATING LIQUORS. 
support, and are entitled to recover damages.151 And many other 
cases might be supposed in which third persons would be thus damni- 
fied. 
§ 309. Disgrace and Mental Suffering. 
As the civil damage laws, in general, give redress only for injuries 
to the person, property, or means of support, the courts are compelled 
to hold that actions cannot be sustained except upon a showing of 
some one of these injuries. Mortification, sorrow, anxiety, shame, 
mental suffering, disgrace, loss of society or companionship,-these, 
poignant or severe as they may be, do not constitute a principal cause 
of action under these statutes, and for these alone no damages are 
recoverable.152 But if a cause of action falling within the statute has 
been established, and substantial ground shown for the recovery of 
compensatory damages, then the mental sufferings of the plaintiff, 
resulting from or connected with the principal cause of action, may 
properly be taken into account as a ground for the award of exem- 
plary damages.153 Indisputably this is the rule where the statute itself 
allows for the recovery of punitive damages. Thus, under such a stat- 
ute, it is held that a wife, as plaintiff, may show that she has been 
excluded from society on account of her husband's intemperate habits, 
and may give evidence of her mental sufferings generally caused by 
his drunkenness.154 And it is clear also that the plaintiff can recover 
for her mental suffering resulting from being beaten by her intoxicated 
husband, being repeatedly thrust violently out of doors by him, and 
compelled to stay out all night, as these things constitute injuries to 
her person within the statute.155 In a case of this character, the 
supreme court of Wisconsin, after noticing the general rule as stated 
at the beginning of this section, remarked: "But in this case we have 
that physical injury and suffering, namely, the turning the wife out 
161 Duroy v. Blinn, 11 Ohio St. 331. 
162 Mulford v. Clewell, 21 Ohio St. 191; 
Koerner v. Oberly, 56 Ind. 284, 26 Am. 
Rep. 34; Brantigam v. While, 73 Ill. 561; 
Freese v. Tripp, 70 Ill. 496; Flynn v. 
Fogarty, 106 Ill. 263; Kearney v. Fitz- 
gerald, 43 Iowa, 580; Jackson v. Noble, 
54 Iowa, 641, 7 N. W. Rep. 88; Welch 
v. Jugenheimer, 56 Iowa, 11, 8 N. W. 
Rep. 673; Clinton v. Laning, 61 Mich. 
355, 28 N. W. Rep. 125; Johnson v. 
Schultz, 74 Mich. 75, 41 N. W. Rep. 865. 
153 Pegram v. Stortz, 31 W. Va. 220, 6 
S. E. Rep. 485. 
164Friend v. Dunks, 37 Mich. 25. 
166 Ward v. Thompson, 48 Iowa, 588. 
358 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 310 
of doors and keeping her there some hours, which suffices to sustain 
the action; and where the action is so sustainable, then we under- 
stand that compensation for injury to the feelings of the plaintiff, and 
for the indignity suffered by reason of the principal act complained 
of and as a part of that act, constitute a portion of the actual dam- 
ages in the action which the plaintiff is entitled to recover. If a 
stranger, and not the husband, had been guilty of the act of turning 
the plaintiff out of doors and keeping her out, such compensation 
would have been recoverable as part of the actual damages; and it 
was the intention of the statute, no doubt, to give the same or an 
equivalent remedy against the person who sold the liquors, and by 
whose fault, in the statutory point of view, the injuries were 
caused."156 
§ 310. Death of Husband as Ground of Action. 
It has been held that, in an action under the civil damage laws, 
no damages can be awarded to the plaintiff for injury to her means 
of support by reason of the death of her husband caused by his intox- 
ication, the consequence of the defendant's furnishing him with liq- 
uor.157 But this doctrine, though supported by the decisions of sev- 
eral eminent courts, cannot be regarded as in accordance either with 
the weight of authority or the best legal reasoning. The statute 
gives an action for injury to the plaintiff's means of support. The 
husband's capacity to labor and to earn a living is the means to which 
the wife is legally entitled to look for her support. Death deprives 
him of this capacity. If, then, his death was a consequence of his 
intoxication, it seems too plain for argument that the person who 
caused the intoxication has inflicted an injury upon the wife's means 
of support. And if this is true, it cannot be denied that she is 
entitled to recover damages, not indeed for the death, but for the 
consequent injury to her means of support. And the majority of the 
decisions are to the effect that if these elements are present,-the 
156 Peterson v. Knoble, 35 Wis. 80. 
167 Pegram v. Stortz, 31 W. Va. 220, 6 
S. E. Rep. 485; Davis v. Justice, 31 
Ohio St. 359, 27 Am. Rep. 514; Kirch- 
ner v. Myers, 35 Ohio St. 85, 35 Am. 
Rep. 598; Barrett v. Dolan, 130 Mass. 
366, 39 Am. Rep. 456; Harrington v. 
McKillop, 132 Mass. 567. 
359 § 310 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
furnishing of liquor by the defendant, the intoxication of the husband, 
and the latter's death in consequence of such intoxication,-the widow 
may maintain an action for injury to her means of support and 
recover damages therefor.158 As observed by the court in New York: 
"If the injury which had resulted to the deceased in consequence 
of his intoxication had disabled him for life, or to such an extent as 
to incapacitate him for labor and for earning a support for his fam- 
ily, it would no doubt be embraced within the meaning and intent of 
the statute. That death ensued in consequence thereof, furnishes 
much stronger ground for a claim for a loss of means of support; 
and a different rule in the latter case would make provision for the 
lesser and temporary injury, while that which was greatest and most 
serious would be without any remedy or means of redress. Such 
could not have been the intention of the law-makers, and the statute 
was designed to embrace and most manifestly cover and include all 
injuries produced by the intoxication, and which legitimately result 
from the same. If it is an injury which can be repaired by dam- 
ages, as that arising from a temporary disability, or one where death 
comes as a natural and legitimate consequence of the intoxication, a 
case is made out within the statute which entitles the injured party 
to recover such damages."169 But the considerations which have 
chiefly hindered some of the courts from reaching right conclusions 
on this subject are, that the common law did not recognize the death 
of a human being as an actionable injury, whatever interest in his 
life the plaintiff may have had, and that, by way of innovation on 
the common law, the statutes modelled on Lord Campbell's Act have 
provided a remedy for death caused by negligence or wrongful act, 
which remedy must be regarded as exclusive. But there are two 
answers to this position: The first is, that if the civil damage law can 
158 Mead v. Stratton, 87 N. Y. 493, 41 
Am. Rep. 386, (explaining and limiting 
Hayes v. Phelan, 4 Hun, 733, and Brook- 
mire v. Monaghan, 15 Hun, 16;) McCar- 
ty v. Wells, 51 Hun, 171, 4 N. Y. Supp. 
672; Davis v. Standish, 26 Hun, 608; 
Emory v. Addis, 71 Ill. 273; Hackett v. 
Smelsley, 77 Ill. 109; Schroder v. Craw- 
ford, 94 Ill. 357, 34 Am. Rep. 236; Flynn 
v. Fogarty, 106 Ill. 263; Rafferty v. Buck- 
man, 46 Iowa, 195; Brockway v. Patter- 
son, 72 Mich. 122, 40 N. W. Rep. 192; 
Roose v. Perkins, 9 Nebr. 304, 2 N. W. 
Rep. 715, 31 Am. Rep. 409. 
Mead v. Stratton, 87 N. Y. 493, 41 
Am. Rep. 386. 
360 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 311 
be so construed, without violence to its terms, as to admit of redress 
for a confessedly grave and serious injury, it would be a gross fail- 
ure of justice to limit its application to less important injuries, merely 
because the graver wrong was not provided for by that very fragment- 
ary and incomplete system known as the common law. The second 
answer is presented in the following language by the court in Illinois, 
used with reference to the statute giving an action for death caused 
by wrongful act: "That statute gives an action only where the wrong- 
ful act causing the death is such as would, if death had not ensued, 
have entitled the party injured to maintain an action and recover 
damages in respect thereof. In this case, had not death ensued, S., 
the deceased husband, could not have maintained an action against 
defendants for selling him the liquor which, as alleged, produced the 
intoxication whereby he came to his death."160 
§ 311. Intoxication as Cause of Death. 
If the plaintiff, in an action under the civil damage laws, is to 
recover for injuries to the means of support resulting from the death 
of the intoxicated person, it is clear that the intoxication must have 
been the cause of the death. But it is not necessary that it should 
have been the immediate cause. That could happen only in case the 
liquor acted as a poison and killed the man. It is sufficient if the 
intoxication was the proximate cause of death.161 It will be remem- 
bered that "the proximate cause is the efficient cause, the one that 
necessarily sets the other causes in operation. The causes that are 
merely incidental or instruments of a superior or controlling agency 
are not the proximate causes and the responsible ones, though they 
may be nearer in time to the result. It is only when the causes are 
independent of each other that the nearest is, of course, to be charged 
with the disaster. The proximate cause is the dominant cause, not 
the one which is incidental to that cause, its mere instrument, though 
the latter may be nearest in place and time to the loss."162 In ap- 
160 Hackett v. Smelsley, 77 Ill. 109. 
161 Hart v. Duddleson, 20 Ill. App. 
618; Davis v. Standish, 26 Hun, 608; 
McClay v. Worrall, 18 Nebr. 44, 24 N. 
W. Rep. 429; Sellars v. Foster, 27 Nebr. 
118, 42 N. W. Rep. 907. 
162 2Etna Fire Ins. Co. v. Boon, 95 U. 
361 § 311 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
plication to our immediate subject, we find a very clear and correct 
exposition of this rule in an instruction given at a trial in one of the 
inferior courts of New York, and approved on appeal. It is as follows: 
"If the proof in any case under this law shows that the intoxication 
was to such an extent as to deprive the man of the normal use of his 
faculties, either physical or mental, so that he is rendered incapable 
of caring for himself and of protecting himself from the results of 
accidents or circumstances to which he is subjected, and by reason 
of such deprivation of his natural powers of body or mind his death 
is produced by his inability to protect or defend himself against cir- 
cumstances which threaten his life, it may be said in those cases, in 
general terms, that such intoxication is the proximate and direct 
cause of death. It is not necessary that the death, or the circum- 
stances which immediately led to or produced it, should have been 
within the contemplation of the person who sold the liquor. It is 
only necessary that the liquor sold or furnished should have pro- 
duced, either in whole or in part, a state of intoxication, and that 
that state of intoxication should have been the direct and proximate 
cause of death, whether the circumstances under which the death 
occurred were within the possible or impossible contemplation of the 
party who sold or furnished the liquor."163 
In accordance with this principle, it is held that if a man who is 
so drunk as to be unconscious of his movements, or unable to con- 
trol them, wanders upon a railroad track and is run over and killed 
by a train, the intoxication is the cause of his death and the widow 
may recover damages against the liquor-seller.164 So if a man in 
that condition loses his way in returning to his home, and is frozen 
to death, the result is not too remotely connected with the defend- 
ant's act in furnishing him liquor to sustain an action.165 The same 
S. 130; Milwaukee R. Co. v. Kellogg, 94 
U. S. 474. 
163 Davis v. Standish, 26 Hun, 608. 
164 People v. Brumback, 24 Ill. App. 
501; Schroder v. Crawford, 94 Ill. 357, 
34 Am. Rep. 236; Sellers v. Foster, 27 
Nebr. 118, 42 N. W. Rep. 907. The case 
of Collier v. Early, 54 Ind. 559, which 
held a contrary doctrine, was criticised, 
if not explicitly overruled, in a later 
decision in the same state. Dunlap v. 
Wagner, 85 Ind. 529, 44 Am. Rep. 42. 
165 Curran v. Percival, 21 Nebr. 434, 
32 N. W Rep. 213. See, also, Scott v. 
Chope, (Nebr.) 49 N. W. Rep. 940. 
362 Ch. 13] 
§ 311 
CIVIL DAMAGE LAWS. 
rule holds where a man, too much intoxicated to save himself, is 
thrown from a boat into a lake and is drowned.166 So where a drunken 
man lost his way, drove into a stream, and was drowned, it was held 
that if he lost his way because of the intoxication, but afterwards 
became sober, and, in an effort to regain the road, drove over the 
bank to his death, still the drowning was caused by the intoxication.167 
So also, if a man becomes involved in a fight with an intoxicated 
person and is killed, the widow may maintain an action against the 
saloon-keeper who furnished the slayer with liquor.168 So where sev- 
eral persons become intoxicated and engage in an affray, in which 
one of them is killed, his widow is entitled to damages from the liq- 
uor-seller.169 But where the intoxicated man, in consequence of 
abusive language used by him, is assaulted and killed by a third per- 
son, there is no liability to the wife for the death; because, in such 
a case, it cannot be presumed that the deceased, if sober, might not 
have given the same provocation.170 In further illustration of the 
general principle, we may cite a case in New York, wherein it appeared 
that plaintiff's husband drank liquor at defendant's hotel and became 
so much intoxicated that he had to be helped into his buggy when 
he started for home, and he was found dead, with his leg caught 
under the foot-bar of the buggy, and his head hanging over between 
the body of the buggy and the wheel, so that it had been beaten by 
the wheel. It was held that these facts sufficiently established that 
the intoxication was the proximate cause of the death.171 Again, a 
suicide may be deemed attributable to defendant's sale of liquors, 
within the civil damage law.172 Where the father of the minor plain- 
tiff, while intoxicated by liquor sold to him by the defendant, mur- 
166 Davis v. Standish, 26 Hun, 608. 
167 Kerkow v. Bauer, 15 Nebr. 150, 18 
N. W. Rep. 27. 
168 Brockway v. Patterson, 72 Mich. 
122, 40 N. W. Rep. 192; Scott v. Chope, 
(Nebr.) 49 N. W. Rep. 940. The case of 
Belding v. Johnson, (Ga.) 12 S. E. Rep. 
304, per contra, was not ruled under a 
civil damage law, but under a statute 
allowing a recovery for death caused by 
crime or "criminal or other negli- 
gence. " 
169 Jackson v. Brookins, 5 Hun, 530. 
170 Shugart v. Egan, 83 Ill. 56, 25 Am. 
Rep. 359. 
171 Mead v. Stratton, 87 N. Y. 493, 41 
Am. Rep. 386. Somewhat similar cases 
in Indiana, (Krach v. Heilman, 53 Ind. 
517; Backes v. Dant, 55 Ind. 181,) where- 
in an opposite conclusion was reached, 
were criticised and practically over- 
ruled in Dunlap v. Wagner, 85 Ind. 529, 
44 Am. Rep. 42. 
172 Blatz v. Rohrback, 42 Hun, 402. 
363 § 312 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
dered the plaintiff's mother and committed suicide, and the plaintiff 
was dependent on his father for support, it was held that the defend- 
ant was liable; as it is not necessary to show that the act of the 
intoxicated person was the natural, reasonable, or probable conse- 
quence of his intoxication, if in fact it was caused thereby.173 But 
if the death of a party who receives an injury while intoxicated 
can be traced as the natural and probable result of any new or inter- 
vening cause, such as reckless exposure of himself, or amputation of 
the wounded limb where amputation was not necessary, the liquor- 
seller will not be responsible to the man's wife for his death.174 
§ 312. Proximate and Remote Causes of Injury. 
In the case of injuries other than the death of the intoxicated per- 
son, the same rule applies which we have considered in the preced- 
ing section; that is, in order to found an action, the intoxication 
must have been the proximate, and not the remote, cause of the 
injury complained of. For example, if a man who is so much intoxi- 
cated as to be unable to control a team, is driving with his wife, 
and, by his mismanagement of the horses, brings about an accident, 
so that they both sustain injuries, the wife has a right of action 
against the person who sold or furnished the liquor.176 So also, an 
action may be maintained by a third person who is wounded by the 
discharge of a pistol flourished by a drunken man on a train.176 And 
where two intoxicated men engage in a scuffle, and one of them has 
his leg broken, his wife, who is dependent on his labor for her sup- 
port, may recover damages from the vendor of the liquor.177 And the 
liability of the defendant, in actions under these statutes, is not 
confined to cases of injury resulting from drunkenness, immediately 
and during its continuance, but extends as well to cases where the 
injury results from insanity, sickness, or disability induced by the 
173 Neu v. McKechnie, 95 N. Y. 632, 
47 Am. Rep. 89. 
174 Schmidt v. Mitchell, 84 RI. 195, 25 
Am. Rep. 446. 
175 Mulcahy v. Givens, 115 Ind. 286,17 
N. E. Rep. 598; Dunlap v. Wagner, 85 
Ind. 529, 44 Am. Rep. 42. 
176 King v. Haley, 86 Ill. 106, 29 Am. 
Rep. 14. 
177 Thomas v. Dansby, 74 Mich. 398, 
41 N. W. Rep. 1088. 
364 Ch. 13] 
§ 314 
CIVIL DAMAGE laws. 
intoxication.178 But on the other hand, if A.'s bar-tender sells liquor 
to B., and, an altercation arising, the bar-tender throws a glass at 
B. which misses him and injures C., the injury is not the proximate 
consequence of A.'s act in selling the liquor, and he is not liable to 
C. in damages.179 So again, a wife cannot maintain an action for 
damages received by her by falling on a slippery sidewalk while follow- 
ing her intoxicated husband to see where he obtained liquor, because 
her fall was not the natural and proximate consequence of the hus- 
band's intoxication, although, but for that, she might not have 
incurred the danger.180 
§ 313. Caring for Intoxicated Person. 
In some of the states, the statutes make the seller of intoxicating 
liquors liable to pay a reasonable compensation to any person who 
may take charge of and provide for the intoxicated person, and a 
stated sum per day, in addition thereto, for every day such person 
shall be kept in consequence of such intoxication. Under these laws 
it is held that one may recover such compensation for taking care of 
the victim while the latter is unable to take care of himself, owing to 
the breaking of his leg during and in consequence of the intoxication.181 
But a physician who treats professionally a person who is injured 
while intoxicated does not "take charge of and provide for" such 
person, within the meaning of the statute in that behalf.182 
§ 314. Sale after Notice not to Sell. 
The laws in force in several of the states provide that the husband, 
wife, parent, child, or other relative of a person who is in the habit 
of drinking to excess may give notice to liquor-sellers not to furnish 
him with liquor, and that, if the prohibition of the notice is violated, 
an action for damages may be maintained. A statute of this char- 
178 Mulford v. Clewell, 21 Ohio St. 
191. 
179 Lueken v. People, 3 Ill. App. 375. 
180 Johnson v. Drummond, 16111. App. 
641. 
181 Brannan v. Adams, 76 Ill. 331. 
182 Sansom v. Greenough, 55 Iowa, 127, 
7 N. W. Rep. 482. 
365 § 314 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
acter is not repealed by a later statute which makes the same act of 
the liquor-dealer a misdemeanor; the two laws are not inconsistent 
and may well stand together.183 The notice provided for must be 
served on the defendant while he is engaged in the sale of liquors 
for himself or for another as a business; and it is essential that, at 
the time the seller is served with notice, the person named in the 
notice should be in the habit of drinking to intoxication.184 The 
notice, however, need not disclose the plaintiff's relationship to the 
one concerning whom it is given, but, if it does not, it must be shown 
that defendant knew that it was given by one of the persons named 
in the statute, and it is not sufficient that he had reasonable cause 
to believe that such was the case.185 No great strictness is observed 
in regard to the form and contents of the notice. It need not follow 
the language of the statute, provided it gives all the necessary informa- 
tion and expresses the prohibition in intelligible terms. A notice by 
a wife to a liquor-seller as follows: "My husband has been in the 
habit of getting liquor here and coming home drunk. I don't want 
you to give him any more drink," is a sufficient compliance with the 
statute.186 So also is a notice worded, "I hereby warn you not to har- 
bor my husband, nor sell him any more liquor or beer, after this date, 
or I will put you to trouble."187 And even where the notice was 
merely "I forbid you selling or delivering liquor to I. N. Taylor," it was 
held to be sufficient.188 If the statute does not prescribe the mode of 
service of the notice, except that it shall be through a peace officer, 
it is not sufficient to read the notice to the liquor-dealer, but the orig- 
inal or a copy must be delivered to him.189 In Massachusetts, under 
the wording of the statute, it is held that upon a declaration contain- 
ing four counts, two of which allege the sale of liquor to a person hav- 
ing the habit of drinking to excess, after having been notified not to 
183 State v. Cooper, 114 Ind. 12, 16 N. 
E. Rep. 518. 
184 Pegram v. Stortz, 31 W. Va. 220, 6 
S. E. Rep. 485. 
188 Sackett v. Ruder, (Mass.) 25 N. E. 
Rep. 736. 
186 Kennedy v. Saunders, 142 Mass. 9, 
6 N. E. Rep. 734. 
187 Tate v. Donovan, 143 Mass. 590,10 
N. E. Rep. 492. 
188 Taylor v. Carroll, 145 Mass. 95, 13 
N. E. Rep. 348. 
189 Reagan v. Wooten, (Tex. App.) 16 
S. W. Rep. 546. 
366 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 315 
make such sale, and the other two counts of which allege the permit- 
ting such person to loiter on the premises, the plaintiff may recover 
separate damages under each count, although only one notice has 
been given.190 
Part V. Defenses to Action. 
§ 315. Defenses in General. 
Actions under the civil damage laws may be defended on the ground 
of the absence of any of the statutory elements of a right of action; 
as, that the defendant did not furnish the liquor, that there was no 
intoxication, that the injuries complained of were not caused by the 
intoxication, that the plaintiff is not entitled to sue, that the plain- 
tiff has not been injured in any manner recognized by the statute, 
etc. But it is not a ground of defense, nor of lessening or appor- 
tioning the damages, that the intoxication was produced, or the injury 
caused, in part by the acts of others than the defendant.191 On the 
other hand, since the injury must have occurred "inconsequence of" 
the intoxication, the defendant may show that the drinker had in fact 
recovered from the effects of his intoxication before committing the 
wrong complained of. But it would not be enough to show that there 
was time for him to have so recovered in the interval.192 When the 
action is upon a statute imposing a penalty for selling liquor to a 
minor, it is no defense that the vendor, at the time of the sale, had 
reason to believe and did believe that the purchaser was an adult, if 
the statute does not provide that the selling must be knowingly done 
in order to create a liability.193 In an action against the surety on a 
liquor-dealer's bond, it is no defense that the surety had removed 
from the corporate limits, and that the county treasurer had notified 
the principal to file a new bond and to close his saloon until he had 
done so.194 
190 Kennedy v. Saunders, 142 Mass. 9, 
6 N. E. Rep. 734. 
191 Steele v. Thompson, 42 Mich. 594, 
4 N. W. Rep. 536; supra, § 299. 
W2 King v. Haley, 86 Ill. 106, 29 Am. 
Rep. 14. 
193 McGuire v. Glass, (Tex. App.) 15 S. 
W. Rep. 127. 
194 Wright v. Treat, 83 Mich. 110,47 
N. W. Rep. 243. 
367 § 317 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
§ 316. License is no Protection. 
It is no defense to an action under the civil damage laws that the 
defendant had been duly licensed to sell intoxicating liquors. In 
some states, as we have seen, the sale must have been illegal in 
order to found an action under these laws. But a license does not 
legalize all sales. If the sale was made to a minor, to an inebriate, 
to a person already intoxicated, or after notice not to sell, the civil 
liability attaches notwithstanding the license. In other states, the 
civil damage laws take no account of the legality or illegality of the 
sale. And here, of course, the question of a license is entirely imma- 
terial.195 It has been attempted, in some cases, on the ground of 
estoppel, to defeat a wife's right of recovery under these statutes by 
showing that she had signed the defendant's petition for a liquor 
license. But this contention has not been regarded with favor by 
the courts. It is held that, by signing the petition, she did not con- 
sent that the party obtaining the license should sell intoxicants 
unlawfully or in violation of the statute, and consequently it does not 
bar her action; nor would it be competent evidence in mitigation of 
damages.196 
§ 317. Contributing Act or Negligence of Plaintiff. 
A wife cannot recover damages from the seller of liquor, for 
injuries committed by her husband upon herself or her property, 
while he was intoxicated, if she consented or contributed to his 
intoxication, by purchasing liquor for him, or drinking with him, or 
neglecting such steps as she might have taken to prevent his intoxica- 
tion.197 Thus, where a wife knows that her husband has purchased 
a jug of whisky and is drinking immoderately, and has it in her 
power to prevent him from drinking in such quantity as to injure 
196 Roose v. Perkins, 9 Nebr. 304, 2 N. 
W. Rep. 715, 31 Am. Rep. 409; Jones v. 
Bates, 26 Nebr. 693, 42 N. W. Rep. 751. 
196 Jockers v. Borgman, 29 Kans. 109, 
44 Am. Rep. 625. 
197 Engleken v. Hilger, 43 Iowa, 563; 
Kearney v. Fitzgerald, Id. 580; Elliott 
v. Barry, 34 Hun, 129; Rosecrants v. 
Shoemaker, 60 Mich. 4, 26 N. W. Rep. 
794; McDonald v. Casey, (Mich.) 47 N. 
W. Rep. 1104. 
368 § 317 
Ch. 13] 
CIVIL DAMAGE LAWS. 
him, as by breaking the jug or pouring out its contents, and is not 
deterred by fear from doing so, but permits him to use it in great 
excess, from which his death ensues, she must be considered as a 
willing party to his conduct and instrumental in bringing the loss 
upon herself.198 But the fact that the plaintiff bought liquor and 
took it home to her husband will not defeat her right of action, if 
she did it merely as a means of keeping him at home and prevent- 
ing him from coming to worse harm by squandering his money and 
time in the saloons.199 And the fact that she has upon other occa- 
sions authorized the sale of liquor to her husband will not prevent 
her recovery of damages for a particular sale, if she did not assent 
to that; and her giving him money to procure liquor does not show 
that she contributed to his intoxication, in the absence of proof that he 
obtained the liquor by means of such money.200 Where it appears 
that the husband, when sober, was in the habit of giving his wages 
to his wife, and that she sometimes let him have the money when 
he was drunk, the question of whether she voluntarily contributed to 
the injury is one of fact for the jury.201 And the fact that plaintiff 
had given defendant a written order to let her husband have liquor, 
will not prevent a recovery, where the husband procured the order 
by threats of desertion and refusal to let her have money, and 
these facts were known to the defendant.202 And in one case, 
when the wife had forbidden the sale of liquor to her husband, and 
subsequently, in his presence, gave permission for the seller to sup- 
ply him with all he wanted, it was held that the seller should have 
inferred that she acted under coercion in giving the permission, and 
that he was not thereby exempted from liability.203 The fact that 
the wife accompanied her husband to various places and gather- 
ings, and drank liquors with him, and that the husband kept liquors 
in his house, and drank the same at home, with the wife's knowledge 
and approval, and that all of such drinking, on the part of the hus- 
band, was with her knowledge and consent, is proper to be consid- 
798 Reget v. Bell, 77 Ill. 593. 
799 Kearney v. Fitzgerald,43 Iowa, 580; 
Ward v. Thompson, 48 Iowa, 588. 
200 Rafferty v. Buckman, 46 Iowa, 195. 
201 Huff v. Aultman, 69 Iowa, 71,28 
N. W. Rep. 440, 58 Am. Rep. 213. 
202 Thomas v. Dansby, 74 Mich. 398,41 
N. W. Rep. 1088. 
203 Jewett v. Wanshura, 43 Iowa, 574. 
INTOX.LIQ. 24 
369 § 319 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
ered by the jury on the question of damages; but such facts do not 
necessarily constitute a bar to the action, because the wife may show 
in rebuttal that her husband compelled her to attend at such times 
and places with him, and may show any circumstances explanatory 
of her conduct.204 Similar principles apply in actions brought by 
others than the wives of drunkards. Thus, where plaintiff's son 
took plaintiff's horse, saying that he was going to see a friend some 
miles distant, but instead he went to defendant's restaurant and 
drank to intoxication, and then, being drunk, drove the horse so vio- 
lently as to kill it, it was held that the plaintiff's allowing his son 
to take the horse, knowing the son to be of intemperate habits, was 
not such contributory negligence as to defeat his right of action.205 
And defendant is liable for injuries caused by a minor intoxicated 
by liquor sold by defendant, though such sale was made to the minor 
with his father's consent.206 
§ 318. Concurrence of Intoxicated. Person. 
In actions for injuries resulting from the death of a person in 
consequence of his intoxication, it is held that the act of the decedent 
in taking the liquor offered to him while intoxicated is not such con- 
curring negligence in him as would relieve the defendant from liabil- 
ity in damages, for it was not a responsible concurrence, and the 
statute, which makes it a misdemeanor to furnish liquor to an inebriate, 
does not make the drunkard responsible for accepting the liquor 
furnished, nor take any notice whatever of his act.207 
Part VI. Pleadings in the Action. 
§ 319. Allegations of Complaint. 
The declaration or complaint, in an action under the civil damage 
laws, must allege that the intoxication complained of was caused by 
20" Hackett v. Smelsley, 77 Ill. 109. 
205 Bertholf v. O'Reilly, 8 Hun, 16. 
206 Flower v. Witkovsky, 69 Mich. 
371, 37 N. W. Rep. 364. 
207 Fink v. Garman, 40 Pa. St. 95; 
Davies v. McKnight, (Pa. Sup.) 23 Atl. 
Rep. 320. 
370 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 319 
the defendant, as that is the very foundation of the action. And to 
that end it must charge, with reasonable certainty, a sale or gift or 
furnishing of liquor by the defendant to the person intoxicated.208 
But it is not necessary to allege the particular kind of liquor so sold 
or furnished.209 And where a sale to an intoxicated person is counted 
on, it is unnecessary to allege that the person making the sale knew 
of the intoxication of the purchaser, such knowledge being presumed 
from the very nature of the case.210 In a single case it has been held 
that the complaint must aver that the liquor was not sold for medic- 
inal or other legitimate purposes.211 But this cannot be a rule of 
general applicability, for if such fact could excuse the defendant at 
all, it is peculiarly a matter of defense, and not one to be negatived 
by the plaintiff in the first instance. It must further be alleged that 
the injuries counted on occurred in consequence of the person's 
intoxication. And it is considered that this requirement is not met 
by an averment that such person, "while in a state of intoxication, 
so that he was incapable of knowing what he was about or taking 
care of himself, fell into an open cellar," and was injured.212 In 
Nebraska, however, under the peculiar wording of the statute, it is 
held to be sufficient to allege the intoxication and negligence of the 
person to whom the defendant sold the liquor, and the injury to the 
plaintiff, without alleging that the injury resulted from the intoxica- 
tion.213 Where the action is brought by a wife, counting on an 
injury to her means of support, the declaration need only allege 
generally that plaintiff was injured in her means of support in con- 
sequence of her husband's intoxication; but thereunder plaintiff can 
prove only the extent of the injury to her means of support sustained 
208 Ford v. Ames, 36 Hun, 571. A 
complaint which merely avers that de- 
fendant sold or gave, or permitted to 
be sold or given, to a third person 
named, a quantity of intoxicating liq- 
uor, which such person then and there 
drank, and by drinking which he be- 
came intoxicated, does not sufficiently 
show that defendant caused the intoxi- 
cation, to render him liable. Under 
such averment, it may be that the liq- 
uor was given by some other person 
than defendant. Ditton v. Morgan, 56 
Ind. 60. 
209 Edwards v. Brown, 67 Mo. 377; 
Walser v. Kerrigan, 56 Ind. 301. 
210 Fletcher v. Forler, 83 Mich. 52, 46 
N. W. Rep. 1023. See, also, Wright v. 
Treat, 83 Mich. 110. 47 N. W. Rep. 243. 
211 Struble v. Nodwift, 11 Ind. 64. 
212 Schwarm v. Osborn, 59 Ind. 245. 
2,3 Nowotny v. Blair, (Nebr.) 49 N. W. 
Rep. 357. 
371 § 320 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
as the necessary consequence of such intoxication, as that resulting 
from the husband's inability to labor while intoxicated. And where 
she wishes to prove that she has suffered damages in her means of 
support, which are the natural, but not the necessary, result of the 
husband's intoxication, it must be so alleged in the declaration.214 
An allegation that by reason of the liquor sold to plaintiff's husband 
by defendant, "he has become an habitual drunkard," is not irrele- 
vant.215 Exemplary damages are not the subject of a claim in such 
sense that it is necessary to make an averment thereof in the decla- 
ration; but such damages may always, in a proper case, be allowed 
by the jury without any such averment.216 
§ 320. Negativing Contributory Negligence. 
In an action under the civil damage laws, it is not necessary that 
the declaration or complaint should contain allegations negativing 
contributory negligence on the part of the plaintiff. "This was not 
an action," says the supreme court of Indiana, "based upon the mere 
negligence or non-feasance of the defendant in failing to do that which 
the law required of him, or made it his duty to do, but upon an act- 
ive, aggressive wrong, constituting the violation of a positive law, in 
knowingly selling intoxicating liquors to the plaintiff's husband while 
be was in a state of intoxication. Where one merely neglects a duty 
which the law imposes upon him, his act may be one of mere neglect 
or non-feasance, but when, in violation of a positive statute, he does 
an act to the injury of a third person, he thereby invades the rights 
of the other, and his act is one of active, aggressive wrong."217 
214 Pegram v. Stortz, 31 W. Va. 220, 6 
S. E. Rep. 485. A complaint alleging 
that defendant sold liquor to the hus- 
band, causing him to become intoxicat- 
ed and incompetentto care for himself, 
and fhat while so intoxicated he re- 
mained away from home a number of 
days, obliging plaintiff to do his work, 
in which time he spent a large sum of 
money needed for the support of plain- 
tiff and family, sets forth a good cause 
of action. Hill v. Berry, 75 N. Y. 229. 
215 Roberts v. Taylor, 19 Nebr. 184, 27 
N. W. Rep. 87. 
216 Gustafson v. Wind, 62 Iowa, 281, 
17 N. W. Rep. 523. 
217 Beem v. Chestnut, 120 Ind. 390, 22 
N. E. Rep. 303. 
372 Ch. 13] 
§ 322 
CIVIL DAMAGE LAWS. 
§ 321. Correspondence of Pleading and Proof. 
As in all other actions, it is necessary that in suits brought under 
the civil damage laws there should be a correspondence between the 
allegata and the probata. But in some particulars the severity of 
this rule may be relaxed in consequence of the terms of the statute. 
For example, although the declaration, in an action by a wife against 
a liquor-seller for furnishing liquor to her husband, may allege that 
the husband's intoxication was caused wholly by the defendant, yet, 
where the statute gives a right of action against one who has caused 
such intoxication "in whole or in part," a recovery may be had when 
the proof shows only that it was caused in part by the defendant.218 
And so, in an action under these statutes, the allegation of a partic- 
ular place of sale does not prevent the plaintiff from giving evidence 
of sales at other places.219 
§ 322. Amendment of Declaration. 
In an action under the civil damage law, where the declaration 
alleges that by reason of defendant's sales of liquor, the plaintiff's 
husband became intoxicated and unable to attend to his business, 
and failed to support her, and that she was otherwise injured, it is 
proper to allow an amendment, by the insertion of an allegation that 
the husband, while drunk, assaulted and beat the plaintiff, as such 
amendment does not introduce a new cause of action.220 So also, it 
is held that the plaintiff should be allowed to amend the declaration 
by alleging defendant's knowledge of the intemperate habits of the 
person to whom the liquor was sold, when the question of the neces- 
sity of such an allegation is raised for the first time on the trial.221 
218 Roth v. Eppy, 80 Ill. 283; Brannon 
v. Silvernail, 81 Ill. 434. 
219 Gustafson v. Wind, 62 Iowa, 281, 
17 N. W. Rep. 523. 
220 Chase v. Kenniston, 76 Me. 209. 
221 Fletcher v. Forler, 83 Mich. 52, 46 
N. W. Rep. 1023. 
373 § 324 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
Part VIL Damages Recoverable. 
§ 323. Proper Elements of Damage. 
The injuries for which damages may be recovered being enumer- 
ated in the statutes, it follows that the recovery must be limited to 
the classes of injury specified in the law or fairly within its terms. 
Thus, as we have already seen, the mental suffering of the plaintiff, 
disgrace, social ostracism, and the like, are not proper elements of 
the actual damages to be computed.222 So also, this class of actions 
being brought for the loss of support, in case of the death of the ine- 
briate husband, the cause of action does not include the loss of the 
society or companionship of the deceased. And hence, proof of a 
lack of affection, sympathy, or respect for him on the part of the 
widow is irrelevant and inadmissible.223 But on the other hand, the 
difference between the husband's actual earnings after the injury and 
the amount he would otherwise have earned, and the amount paid 
for medical attendance and for medicine, are proper elements of 
damage to be considered and allowed for.224 
§ 324. Measure of Damages. 
In some of the states,-as will appear from the synopsis of the 
statutes at the beginning of this chapter,-the amount to be recovered 
in a civil damage action is positively fixed at a certain sum. Here, 
of course, there is no occasion to seek a measure of damages beyond 
the statute. Recovery must be had of the precise statutory sum or 
not at all. In other states the limits of the recovery are fixed 
between certain amounts. And here, within the prescribed limits, 
the sum to be awarded as damages rests very much within the dis- 
cretion of the jury. And it is held that, to assist them in determin- 
ing the amount, evidence of the abusive habits of the intoxicated 
person, when drunk, is admissible, as also particular instances of his 
222 Supra, § 309. 
223 Kerkow v. Bauer, 15 Nebr. 150, 18 
N. W. Rep. 27. 
224 Thomas v. Dansby, 74 Mich. 398, 
41 N. W. Rep. 1088. 
374 Ch. 13] 
CIVIL DAMAGE LAWS. 
S 324 
misconduct, though not connected by the evidence with sales made 
by the defendant.225 
More usually, however, the statutes give a right of action for 
injuries to the plaintiff's person, property, or means of support, with- 
out fixing the amount of the recovery. Here the actual damages 
must be as nearly commensurate with the actual injury sustained as 
the case will permit. And the measure of damages must be fixed 
with reference to the actual situation, circumstances, and relations 
of the parties, and the real loss or injury proved, and not with refer- 
ence to an abstract or ideal state of facts. Thus, in the wife's action, 
where the evidence shows that the husband had been intemperate, 
and the wife had supported herself and partly supported him ever 
since a time prior to the passage of the law, a charge to the jury 
which directed them in giving damages to estimate the loss of the 
sober, intelligent society of the husband, and the loss or want of 
means of support, is inappropriate; for while the defendants should 
be held liable for the injury they have actually inflicted, their liability 
must be measured by the effects produced upon the busband and wife 
as they were, and not as they might have been.226 Still it is impor- 
tant to remember that although the husband may be an habitual drunk- 
ard, and may in fact contribute nothing at all to the support of his 
family, yet the wife has at all times the right to rely upon his indus- 
try and his capacity to labor as her means of support.227 And it 
may well be that a dealer who furnishes liquor to such a person may 
inflict an actual injury upon the wife. For his sales may have encour- 
aged, contributed to, or prolonged the intemperate habits which 
prevented the drunkard from earning money or obtaining employment. 
In other words, the fact of the idle and dissolute habits of the hus- 
band does not relieve the seller from responsibility. But it may 
justly affect the measure of damages. And for this reason evidence 
of the husband's age, habits, and circumstances in life, prior to the 
sales complained of, is competent.228 In the next place, the dam- 
225 Sackett v. Ruder, (Mass.) 25 N. E. 
Rep. 736. 
226 Ganssly v. Perkins, 30 Mich. 492. 
227 Supra, § 308. 
228 Dunlavey v. Watson, 38 Iowa, 398. 
See McMahon v. Sankey, (Ill. Sup.) 24 
N. E. Rep. 1027. 
375 § 324 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
ages, in an action of this character, are not to be commensurate with 
the amount of loss or injury to the husband's estate, but merely the 
diminution, if any, thereby resulting to the wife's means of present 
and future support.229 But in order to ascertain the amount of this 
diminution, evidence may be given of the amount of money withdrawn 
from the support of the wife, from week to week, and used in the 
purchase of liquor in defendant's saloon.230 The period for which 
damages are to be computed is the time during which the husband 
could furnish no support, or only a partial support, by reason of his 
intoxication or habitual drunkenness.231 Where the action is brought 
by a father, who is compelled to support an indigent son, by reason 
of the intemperate habits of the latter caused or contributed to by 
the defendant, it is held that, as the father is under no legal obliga- 
tion to furnish more than the necessary comforts of life to the son, the 
damages recoverable cannot exceed the cost of such support; and 
further, the recovery will be limited to the cost of support during the 
father's life-time.232 
Where the loss of means of support complained of is attributable 
to the death of the intoxicated husband, the damages must be com- 
puted with reference to the expectation of life of the deceased. An 
instruction is erroneous which leads the jury into determining that 
the widow is entitled to damages for the loss of her husband's support 
during the expectancy of her life, without reference to the probabili- 
ties of the husband's life continuing as long as she might live.233 In 
a case where the evidence showed that the decedent had but partially 
supported his family, and was fifty-eight years of age at the time of 
his death, it was held that a verdict for $2,500 was excessive and 
that the plaintiff should be required to remit $500 thereof.234 But 
on the other hand, where the husband had been an industrious labor- 
ing man, engaged in working a farm on shares, and the plaintiff was 
229 Mulford v. Clewell, 21 Ohio St. 
191. 
230 Hudson v. Weston, 23 Ill. App. 
487. bee, also, Hutchinson v. Hubbard, 
21 Nebr. 33, 31 N. W. Rep. 245. 
231 Warrick v. Rounds, 17 Nebr. 411, 22 
N. W. Rep. 785. 
232 Clinton v. Laning, 61 Mich. 355, 28 
N. W. Rep. 125. 
233 Brockway v. Patterson, 72 Mich. 
122, 40 N. W. Rep. 192. 
234 Curran v. Percival, 21 Nebr. 434, 
32 N. W. Rep. 213. 
376 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 325 
left entirely destitute, with a young child to support, it was consid- 
ered that a verdict for $3,500 damages was not excessive.236 But 
evidence should not be admitted to show that since the death of the 
husband (a farmer) the widow had expended considerable sums in 
ditching, fencing, etc., for that is no criterion of what he, if alive, 
would have done.236 Under a statute which provides that the liquor- 
seller shall be liable "to pay a reasonable compensation to any person 
who may take charge of and provide for such intoxicated person," a 
recovery can be had only for the time during which such person may 
have remained intoxicated.237 
§ 325. Exemplary Damages. 
In some few of the states, the rule obtains that, in an action under 
the civil damage laws, only compensatory damages are to be recovered, 
and that exemplary damages can in no case be allowed.238 But for 
the most part the statutes, either expressly or by necessary implica- 
tion, allow the recovery of punitive damages in proper circumstances. 
The act, in several jurisdictions, gives a right of action "for all 
damages sustained and for exemplary damages." And it has been 
thought that this required the jury, whenever they found actual 
damages, to add something thereto by way of exemplary damages, 
or at least authorized them to assess damages for the punishment of 
the defendant without proof of actual malice or other special circum- 
stances of aggravation.239 But it can scarcely be maintained that 
the statute intended to give exemplary damages in all actions as of 
course. The better rule requires the court to instruct that such 
damages are punitive, as for a positive wrong or very gross neglect, 
and that the jury must exercise a sound discretion in determining 
them.240 It is clear also that in no case can exemplary damages be 
235 Conklin v. Tice, (Sup.) 1 N. Y. 
Supp. 803. 
236 Flynn v. Fogarty, 106 Ill. 263. 
237 Krach v. Heilman, 53 Ind. 517. 
238 Roose v. Perkins, 9 Nebr. 304, 2N. 
W. Rep. 715, 31 Am. Rep. 409. See, 
also, Schafer v. Smith, 63 Ind. 226. 
239 Thill v. Polman, 76 Iowa, 638, 41 
N. W. Rep. 385; Schneider v. Hosier, 21 
Ohio St. 98; Fox v. Wunderlich, 64 
Iowa. 187, 20 N. W. Rep. 7. 
240 Larzelere v. Kirchgessner, 73 Mich. 
276, 41 N. W. Rep. 488. See, also, 
Goodenough v. McGrew, 44 Iowa, 670. 
377 [Ch. 13 
§ 325 
LAW OF INTOXICATING LIQUORS. 
awarded without proof of a substantial injury of one of the kinds 
enumerated in the statute. Actual damages to person or property 
or means of support must be alleged and proved before the plaintiff 
can recover for exemplary damages, and without such actual damages 
the action cannot be sustained.241 
The rule, as stated by the supreme court of Michigan, is as follows : 
"The actual damages should be as nearly commensurate with the 
actual injury as the nature of the case will permit; and exemplary 
damages should be given in those cases, and only in those cases, where 
the plaintiff has some personal right to complain of a wanton and 
wilful wrong, which the wrong-doer, when he committed it, must be 
regarded as having committed against the plaintiff herself, in spite 
of the injury he must have known she was likely to suffer by it."242 
Or, as explained by the court in New York, exemplary damages 
cannot be awarded unless it be shown that the defendant acted from 
bad motives; as, for instance, where it is shown, in an action against 
one who sold the liquor, that he sold it in violation of law, or to one 
whom he knew to be far gone in the habit of intemperance, or who 
was already obviously under the influence of liquor, or who habitually 
squandered in dissipation the wages with which he should support 
his family; or where, in an action against the owner of the premises, 
it is shown that he leased them to a tenant knowing that he kept a 
disorderly place, or sold without a license or to minors or habitual 
drunkards.243 As a rule, therefore, exemplary damages should not 
be allowed, unless there are circumstances of abuse or aggravation 
proved, or unless the conduct of the defendant in furnishing the 
liquor was wilful, wanton, reckless, malicious, oppressive, or otherwise 
deserving of punishment, beyond what the requirements of mere 
compensation would impose.244 Thus, exemplary damages cannot 
241 Gilmore v. Mathews, 67 Me. 517; 
Kellerman v. Arnold, 71 Ill. 632; Keedy 
v. Howe, 72 Ill. 133; Fentz v. Meadows, 
Id. 540; Albrecht v. Walker, 73 Ill. 69; 
Brantigam v. While, Id. 561; Confrey v. 
Stark, Id. 187; Graham v. Fulford, Id. 
596; Schimmelfenig v. Donovan, 13 Ill. 
App. 47. 
242Ganssly v. Perkins, 30 Mich. 492. 
243Rawlins v. Vidvard, 34 Hun, 205. 
244 Kreiter v. Nichols, 28 Mich. 496; 
Jockers v. Borgman, 29 Kans. 109, 44 
Am. Rep. 625; Larzelere v. Kirchgess- 
ner, 73 Mich. 276, 283, 41 N. W. Rep. 488; 
Peacock v. Oaks, (Mich.) 48 N. W. Rep. 
1082; Franklin v. Schermerhorn, 8 Hun. 
112; Kadgin v. Miller, 13 Ill. App. 474; 
Kellerman v. Arnold, 71 Ill. 632. 
378 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 325 
be given to a wife where defendant has simply sold liquors illegally 
to her husband, whereby she is injured in her means of support, but 
only where the sale was made under such circumstances as showed 
malice, or a wanton and deliberate disregard of her known wishes 
and her rights.248 If the plaintiff has notified the defendant not to 
furnish liquor to the inebriate, a sale made in violation of the pro- 
hibition of the notice is considered as showing such a wilful disregard 
of plaintiff's just rights as to lay a foundation for exemplary damages.246 
But the right to recover such damages is not limited to a case of 
furnishing liquor to an inebriate after notice not to do so, or to the case 
of preventing one endeavoring to reform from habits of intemperance 
from doing so, by tempting or inducing him to drink.247 Evidence that 
one knowing the husband to be in the habit of becoming intoxicated sold 
liquor to him while he was drunk, will support a verdict in favor of 
the wife for exemplary damages.248 So the wrife may show, to sustain 
a claim for such damages, the number and ages of her children, if 
she also shows that the defendant, prior to selling the liquor to the 
husband, had knowledge that she had such children, and that they 
were in danger of being injured or compelled to leave home by reason 
of their father's dissolute habits; because, thereafter, the defendant's 
acts in selling would be wilful and wanton.249 
In the state of New York, the rule appears to have been adopted 
that if the defendant's act in selling the liquor, or his course of busi- 
ness including the particular sale, was illegal,-as where he sells liq- 
uor without a license,-this of itself will be a ground for awarding 
exemplary damages in an action against him under the civil dam- 
age law.250 But this doctrine has not received general support. The 
question has been raised, however, whether the award of exemplary 
246 Pegram v. Stortz, 31 W. Va. 220, 6 
S. E. Rep. 485; Murphy v. Curran, 24 
Ill. App. 475. 
246 Rouse v. Melsheimer, 82 Mich. 172, 
46 N. W. Rep. 372; Steele v. Thompson, 
42 Mich. 594, 4 N. W. Rep. 536; McMa- 
hon v. Sankey, (Ill. Sup.) 24 N. E. Rep. 
1027; McEvoy v. Humphrey, 77 Ill. 388. 
An award of $400 as exemplary dam- 
ages against a liquor-seller who sold to 
plaintiff's husband while he was drunk, 
and after being notified not to sell to 
him, is not excessive. Jockersv. Borg- 
man, 29 Kans. 109, 44 Am. Rep. 625. 
247 Hackett v. Smelsley, 77 Ill. 109. 
248 Weitz v. Ewen, 50 Iowa, 34. 
249 Ward v. Thompson, 48 Iowa, 588. 
260 Neu v. McKechnie, 95 N. Y. 632,47 
Am. Rep. 89; Davis v. Standish, 26 Hun, 
608. 
379 § 325 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
damages, in a case where the particular sale was made under such 
circumstances as to constitute it a criminal offense, would not con- 
flict with the constitutional principle that no man should be twice 
punished for the same offense. On this point the authorities are not 
in harmony. But the better opinion appears to be that the constitu- 
tional rule does not apply, and that exemplary damages may be 
given in a proper case, notwithstanding the defendant has been or 
may be punished criminally for the same act of sale or gift.251 
The owner or lessor of the premises whereon the liquor-shop is 
situated, having knowledge of the traffic there carried on, is also 
liable, in many of the states, for exemplary damages as well as for 
the actual damages sustained. But in order to charge such a per- 
son with exemplary damages, a case must be made therefor against 
him individually. It is not enough that a case is made against the 
tenant which justifies the award of such damages against him. It 
must further be shown that the conduct of the lessor was wanton, 
wilful, or blameworthy, as where he suffered the tenant to continue 
in possession although he knew the latter was keeping his place in 
such a manner as to constitute it a nuisance, or was selling without 
a license or to persons to whom he was forbidden to sell.252 
The allowance of exemplary damages, in these actions, rests very 
much within the discretion of the jury. And it is not within the 
province of the court to instruct them that any particular fact enti- 
tles the plaintiff to such damages.253 But it is not error to refuse 
to exclude such damages from the consideration of the jury, when 
there is some evidence tending to show that sales had been made 
against the wife's remonstrances.254 And it is proper to instruct the 
jury that they may, if they find for the plaintiff, assess her damages 
at such sum as they think from the evidence she ought to recover. 
251 Jockers v. Borgman, 29 Kans. 109, 
44 Am. Rep. 625; Brannon v. Silvernail, 
81 Ill. 434; Roberts v. Mason, 10 Ohio 
St. 277; Cook v. Ellis, 6 Hill, (N. Y.) 
466. Compare Koerner v. Oberly, 56 
Ind. 284, 26 Am. Rep. 34; Albrecht v. 
Walker, 73 Ill. 69; Murphy v. Hobbes, 7 
Colo. 541, 5 Pac. Rep. 119, 49 Am. Rep. 
366. 
252 Reid v. Terwilliger, 116 N. Y. 530, 
22 N. E. Rep. 1091; Ketcham v. Fox, 52 
Hun, 284, 5 N. Y. Supp. 272; Rawlins v. 
Vidvard, 34 Hun, 205. 
263 Goodenough v. McGrew, 44 Iowa, 
670. 
264Ganssly v. Perkins, 30 Mich. 492. 
380 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 327 
not exceeding the ad damnum, where the evidence shows sales made 
to the husband while drunk.255 Sales made by the defendant after 
the commencement of the action may be proved, and considered by 
the jury on the question of exemplary damages.256 Nor will the ver- 
dict, awarding exemplary damages, be set aside on the ground that 
the damages are excessive, unless the court is satisfied that the jury 
abused its discretion.257 
On the part of the defendant, for the purpose of avoiding or 
reducing exemplary damages, evidence may be given of his honest 
endeavors to prevent injury to the plaintiff and of his having been 
deceived or misled by tricks and artifices. Thus, he may show that 
he endeavored to prevent the plaintiff's husband from getting liquor 
at his place, that he frequently refused him liquor, and instructed 
his clerk to refuse him, but that the husband procured it through 
others, concealing his name.258 
§ 326. Reduction or Mitigation of Damages. 
In an action to recover damages for injuries caused by the sale of 
intoxicating liquors to plaintiff's husband, to render evidence of 
recoveries from other parties admissible to reduce the damages, it 
must be shown that such other recoveries were for sales during the 
same time as that covered by the alleged sales by defendant.259 
Evidence that the intoxicated party had procured liquors at other 
places besides the defendant's, which contributed to his intoxication, 
may be received in mitigation of the damages.260 
Part VIII. Evidence in Civil Damage Actions. 
§ 327. Admissibility of Evidence in General. 
In an action by a wife to recover damages for injuries caused by 
the sale of liquor to her husband, evidence as to the number, age, and 
255 Kennedy v. Sullivan, (Ill. Sup.) 26 
N. E. Rep. 382. 
256 Bean v. Green, 33 Ohio St. 444. 
257 Schneider v. Hosier, 21 Ohio St. 
98. 
258 Bates v. Davis, 76 Ill. 222. 
259 Jackson v. Noble, 54 Iowa, 641, 7 
N. W. Rep 88. See, also, Ennis v. Shi- 
ley, 47 Iowa, 552. 
260 Hemmens v. Bentley, 32 Mich. 88. 
381 § 327 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
sex of her children is not admissible; for since the plaintiff can recover 
only for her own proper loss or damage, and the statute gives a sep- 
arate right of action to each of the children, such testimony could 
have no relevancy and might improperly enhance the damages 
awarded.261 Where injury to the means of support is counted on, a 
judgment obtained by the plaintiff in an action against another party, 
for injury thereto accruing at the same period, is admissible to show 
the actual extent of the wrong done by defendant.262 And where 
the death of the husband is relied on as a cause of action, evidence 
tending to show that his death was the result of frequent intoxication 
caused by liquor sold to him by the defendant is admissible.263 So 
where plaintiff's husband came to his death through the act of an 
intoxicated person, evidence of the habits of the husband as a drink- 
ing man is proper to be received as bearing on the question of dam- 
ages.264 But evidence of the value of the estate of the husband before 
the liquor law took effect, and the reduced condition of his pecuniary 
affairs at the time of the trial, is not admissible.268 Evidence of his 
having been an habitual drunkard for many years, is not competent 
to reduce the damages, but is admissible to show defendant's sales to 
have been unlawful.266 The defendant's license to sell intoxicating 
liquor is not admissible in evidence on the defense, since it affords 
him no protection against a proceeding under the civil damage stat- 
ute.267 But where the action is upon the liquor-dealer's bond, the 
village record or minute-book of the trustees, showing the proceed- 
ings of the board in relation to granting liquor-licenses and the 
approval of the bonds of dealers, is admissible in evidence.268 
261 Huggins v. Kavanagh, 52 Iowa, 
368, 3 N. W. Rep. 409; Welch v. Jugen- 
heimer, 56 Iowa, 11, 8 N. W. Rep. 673; 
Thomas v. Dansby, 74 Mich. 398, 41 N. 
W. Rep. 1088; Larzelere v. Kirchgess- 
ner, 73 Mich. 276, 41 N. W. Rep. 488; 
Johnson v. Schultz, 74 Mich. 75, 41 N. 
W. Rep. 865. 
^Engleken v. Webber, 47 Iowa, 558. 
263 Squires v. Young, 58 N. H. 192. 
264 Brockway v. Patterson, 72 Mich. 
122, 40 N. W. Rep. 192. 
265 McCann v. Roach, 81 Ill. 213. 
266 Huff v. Aultman, 69 Iowa, 71, 28 N. 
W. Rep. 440. 
W Roth v. Eppy, 80 Ill. 283. 
268 Scott v. Chope, (Nebr.) 49 N. W. 
Rep. 940. 
382 Ch. 13] 
§ 330 
CIVIL DAMAGE LAWS. 
§ 328. Competency of Husband as Witness. 
In a wife's action under the civil damage law, her husband is a 
competent witness in her behalf.269 But declarations of the husband 
as to where he procured the liquor, or how he received the injuries 
complained of, are not admissible on the ground of privity between 
husband and wife, as the wife's right of action does not come to her 
by succession from the husband, but is a creation of the statute.270 
And where the plaintiff has not called her husband as a witness, evi- 
dence of statements made by him is inadmissible against her.271 
§ 329. Evidence of Antecedent Facts. 
In actions of this character, as a general rule, evidence of facts 
antecedent to the unlawful acts complained of cannot be received, 
except to show the habits and circumstances of the husband before 
those acts were committed. But evidence of his pecuniary condition 
before the acts complained of may be introduced, not as showing a 
substantive cause of action, but to be considered with other facts as 
showing the damages sustained by the plaintiff.272 When the defend- 
ant introduces evidence to show that the husband had been a con- 
firmed drunkard for many years before defendant sold him liquor, 
evidence of sales made by him two years prior to the action is 
admissible in rebuttal.273 And so, evidence that the defendant had 
been several times convicted of selling liquor without a license, both 
before and since the cause of action arose, is admissible for the pur- 
pose of affecting the weight of his testimony.274 
§ 330. Evidence Confined to Injury Alleged. 
Inasmuch as the civil damage laws enumerate several distinct 
species of injury, each of which may constitute a cause of action by 
269 Davenport v. Ryan, 81 Ill. 218. 
270Richards v. Moore,(Vt.) 19 Atl. Rep. 
390; Brockway v. Patterson, 72 Mich. 
122, 40 N. W. Rep. 192. 
271 Judge v. Jordan, (Iowa,) 46 N. W. 
Rep. 1077. 
272 Friend v. Dunks, 37 Mich. 25; Du- 
bois v. Miller, 5 Hun, 332. 
273 Gustafson v. Wind, 62 Iowa, 281, 
17 N. W. Rep. 523. 
274 Morenus v. Crawford, 51 Hun, 89, 
5 N. Y. Supp. 453. 
383 § 332 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
itself, the rule applies that the plaintiff's evidence cannot be allowed 
to take a wider range than is indicated by the statement of the 
cause of action. Where, for example, the alleged injury is to the 
plaintiff's means of support, proof that the plaintiff was injured in 
person by her husband, while he was intoxicated, is not admissible; 
the evidence should be confined to the injury alleged; and error in 
admitting such evidence will not be cured by instructions to the jury 
to award no damages on account of such personal injuries.276 
§ 331. Proof of Character of Plaintiff. 
In all cases where the right of action depends upon the relationship 
of the plaintiff to the intoxicated person, as where the suit is brought 
by a husband, wife, son, or daughter, it is an essential part of the 
plaintiff's case to show the existence of such relationship. So under 
a statute (in Vermont) giving a right of action for injuries caused 
by the sale of liquor to any "person who is in any manner dependent 
on such injured person,"it is necessary, in an action by one claiming 
to be a widow, that she should prove her lawful marriage to the 
decedent. And if a child brings the action, he must prove that he 
was legitimate. The dependence spoken of in the statute is a legal 
dependence.276 
§ 332. Proof of Sale by Defendant. 
As the gist of an action under the civil damage laws is the sale or 
furnishing of liquor by the defendant, the burden of proving this prin- 
cipal fact rests upon the plaintiff.277 It may be established inferen- 
tially from facts sworn to by witnesses. Thus, testimony that a man 
at the bar of a saloon was furnished with a glass containing liquor 
that looked like beer, that he paid for it, and that he was presently 
much intoxicated, tends to show that intoxicating liquor had been sold 
to him.278 So, where defendant is town agent for selling liquor pur- 
^Hackett v. Smelsley, 77 Ill. 109. 
276 Good v. Towns, 56 Vt. 410, 48 Am. 
Rep. 799. 
277 Jones v. Bates, 26 Nebr. 693, 42 N. 
W. Rep. 751. 
278 Wilson v. Booth, 57 Mich. 249, 23 
N. W. Rep. 799. See, also, Astheimer 
v. O'Pray, (Sup.) 16 N. Y. Supp. 470. 
384 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 332 
suant to statute, and as such agent keeps a book of entries of his 
sales, the book is competent evidence for the plaintiff to show the 
number and amount of sales to the person who killed her husband, as 
tending to fix knowledge on the defendant that such person wanted 
the liquor for illegal purposes.279 But proof that the husband, who 
kept one of defendant's bars, got drunk on liquor which he took from 
the bar, and that defendant knew that he was drinking but said noth- 
ing about it, does not establish a giving of liquor by defendant.280 
Proof of the sale of liquor by circumstantial evidence may be so strong 
as to justify the jury in disregarding the positive assertion of the bar- 
tender that the liquor sold by him was not intoxicating.281 It may be 
presumed that a person seen to enter a liquor-saloon sober and to 
emerge therefrom drunk, bought or procured liquor there.282 But the 
plaintiff cannot recover merely upon proof that defendant was a liq- 
uor-seller, that her husband had been in his store, and had been seen 
coming therefrom intoxicated.283 Where the evidence showed that 
defendant's saloon was open at night, while a fire was raging near 
by; that plaintiff's husband was assisting the firemen in removing 
property from the burning building into the saloon; that defendant, 
at the request of the owner of said building, furnished liquor to the 
firemen; and that plaintiff's husband was found dead drunk that 
night; it was held that this justified a verdict for the plaintiff.284 
Where a witness testifies that deceased had taken a drink in defend- 
ant's saloon, the further testimony of such witness that, when deceased 
came to another saloon, "he wanted to take another drink," is not 
objectionable as containing a corroborating statement of deceased 
that he had already taken one drink.285 If the plaintiff's husband 
was accustomed to deal with defendant, the jury may infer that the 
liquor he obtained was sold, not given, although it was neither paid 
for nor charged.286 The defendant may of course introduce evidence 
^Stanton v. Simpson, 48 Vt. 628. 
280 Campbell v. Schlesinger, (Sup.) 1 
N. Y. Supp. 220. 
281 Curran v. Percival, 21 Nebr. 434, 32 
N. W. Rep. 213. 
282 Curran v. Percival, 21 Nebr. 434, 32 
N. W. Rep. 213. 
^Lovelan v. Briggs, 32 Hun, 477. 
284 Judge v. Jordan, (Iowa,) 46 N. W. 
Rep. 1077. 
285 Mayers v. Smith, 121 Ill. 442, 13 N. 
E. Rep. 216. 
^Rafferty v. Buckman, 46 Iowa, 195. 
INTOX.LIQ.-25 
385 [Ch. 13 
§ 333 
LAW OF INTOXICATING LIQUORS. 
to negative the allegation of sales by him. But testimony that defend- 
ant had refused to furnish liquor to the party, without disproving the 
particular acts testified to by witnesses for the plaintiff, will not war- 
rant a verdict for defendant.287 Where there is no evidence connect- 
ing a third person with an actual sale of liquor to the husband on the 
day in question, evidence that the third person was reputed to be 
engaged in the illegal sale of liquor is inadmissible to show that 
defendant did not furnish the husband with liquor, although there is 
evidence that the husband stopped at the third person's place, and 
that he was seen to hand something to the husband.288 
§ 333. Proof of Intoxication as Cause of Injury. 
It is further necessary for the plaintiff to prove that the defendant's 
sale of liquor produced intoxication. In this connection, it has been 
held correct to instruct the jury that "whenever a man is under the 
influence of liquor so as not to be entirely at himself, he is intoxi- 
cated, though he can walk straight, though he can attend to his busi- 
ness, and may not give any outward and visible signs to the casual 
observer that he is drunk." 289 But the jury must be satisfied, by a 
preponderance of evidence, that defendant contributed to the intoxi- 
cation of the party in an appreciable degree.290 Where it is undis- 
puted that the party drank one glass of whisky in defendant's saloon, 
and three witnesses testify that very soon after he was so drunk that 
he staggered, though several witnesses testify that he was not then 
intoxicated, the question whether his intoxication was caused wholly 
or partly by the liquor furnished by defendant is for the jury.291 
Proof that the party bought liquor of the defendant will not shift the 
burden upon the latter to show that his liquor did not cause the for- 
mer's intoxication.292 It is also incumbent upon the plaintiff to prove 
that the intoxicated person sustained the injuries in question in con- 
287 McManigal v. Seaton, 23 Nebr. 549, 
37 N. W. Rep. 271. 
288 Richards v. Moore, (Vt.) 19 Atl. 
Rep. 390. 
269 Elkin v. Buschner, (Pa. Sup.) 16 
Atl. Rep. 102. 
290 Chase v. Kenniston, 76 Me. 209; 
Blatz v. Rohrbach, (Sup.) 14 N. Y. 
Supp. 458, 
291 McCarty v. Wells, 51 Hun, 171, 4 
N. Y. Supp. 672. 
292Macleod v. Geyer, 53 Iowa, 615, 6 
N. W. Rep. 21. 
386 Ch. 13] 
§ 334 
CIVIL DAMAGE LAWS. 
sequence of the alleged intoxication.293 In a case where there was 
evidence that the deceased drank at various places and became so 
much intoxicated as to be unable to walk, and the witnesses did not 
see him again until his body was found in a mill-race, in water two 
and one-half to four feet deep, in which he had been drowned, it was 
held that there was sufficient evidence to sustain a finding that his 
death was caused by intoxication.294 So, where plaintiff's husband 
was killed in a fight with a person who was drunk on liquor furnished 
by defendant, evidence that the husband was quiet when sober, and 
quarrelsome when drunk, is admissible as bearing on the question 
whether he was intoxicated at the time of the injury, and whether 
his intoxication contributed to the injury.295 In a recent case in 
Nebraska, the action was for loss of means of support in consequence 
of the suicide of plaintiff's husband, caused, as it was alleged, by 
continued intoxication from liquor furnished by the defendants for 
several days before his death. There was proof tending to show that 
for several days the deceased had been sober, and that the act had 
been deliberately done. There was also proof tending to show that 
for a considerable period prior to his death he had been constantly 
under the influence of liquor furnished by defendants. It was held 
that physicians were properly allowed to answer hypothetical ques- 
tions as to the probable effect of the continued use of intoxicating 
drinks in causing suicide.296 
§ 334. Evidence of Decedent's Expectation of Life. 
"Where the injury to the plaintiff's means of support which forms 
the cause of action results from the death of her husband, and he is 
shown to have been a strong and healthy man, annuity tables- 
such as the Carlisle or the Northampton tables-may be resorted to 
for the purpose of determining what would have been the probable 
duration of his life, and thus aiding in estimating the damages.297 
193Murphy v. Curran, 24 Ill. App. 475. 
294 McCarty v. Wells, 51 Hun, 171, 4 N. 
Y. Supp. 672. 
295 Brockway v. Patterson, 72 Mich. 
122, 40 N. W. Rep. 192. 
296 Poffinbarger v. Smith, 27 Nebr. 
788, 43 N. W. Rep. 1150. But evidence 
that, on the day of the suicide, dece- 
dent was charged with embezzlement, 
was properly excluded. Id. 
297 Roose v. Perkins, 9 Nebr. 304, 2 N. 
W. Rep. 715, 31 Am. Rep. 409; King v. 
387 § 335 
[Ch. 13 
LAW OF INTOXICATING LIQUORS. 
But if the person is not shown to have been robust and strong, the 
jury, in estimating his probabilities of life, must not regard the 
standard applied to more sound and healthy lives, but base their 
calculation upon his own condition and prospects.298 
§ 335. Evidence to Charge Lessor of Premises. 
Under the statutory provisions imposing a liability on the lessor 
of premises, knowing and consenting to their use as a liquor shop, 
it is necessary, as we have already stated, to make a case individu- 
ally against the lessor, and proper evidence of his knowledge and 
consent must be given. In a case where it was shown that defend- 
ant, before leasing his building, stated that his prospective tenant 
intended to keep a hotel, and could get a license; that he was sev- 
eral times about the hotel while it was being fitted up, and was in 
the habit of going there two or three times a week; together with 
evidence that there was a regular bar-room in the hotel, where every 
one got liquor who asked for it; this was held sufficient proof of a 
leasing for the purpose of the sale of liquors, and of knowledge that 
the premises were used for that purpose.299 But proof that the les- 
see's bar-tender gave liquors to the plaintiff's husband does not show 
a giving away by the lessee so as to render the owner of the premises 
liable, such gift by the bar-tender being beyond the scope of his 
authority.300 And evidence of a conversation concerning the sale of 
liquor to plaintiff's husband, between plaintiff and the lessee's hus- 
band, five years before trial, and before the lease, and not at the 
leased premises, is incompetent.301 Where the action is to enforce 
on the premises the lien of a judgment recovered against the tenant, 
such judgment is evidence of the fact of its own rendition, but it is 
not evidence of the amount for which the property is to be sub- 
Bell. 13 Nebr. 409, 14 N. W. Rep. 141; 
Sellars v. Foster, 27 Nebr. 118, 42 N. W. 
Rep. 907; Davis v. Standish, 26 Hun, 608; 
Hall v. Germain, (Sup.) 14N. Y. Supp. 5. 
298 Clinton v. Laning, 61 Mich. 355, 28 
N. W. Rep. 125. 
298 Conklin v. Tice, (Sup.) 1 N. Y 
Supp. 803. 
300 Campbell v. Schlesinger, (Sup.) 1 
N. Y. Supp. 220. 
301 Ketcham v. Fox, 52 Hun, 284, 5 N. 
Y. Supp. 272. 
388 Ch. 13] 
CIVIL DAMAGE LAWS. 
§ 337 
jected, as against the owner who was not a party to the original 
proceedings.302 
§ 336. Evidence on Question of Exemplary Damages. 
If the plaintiff, in an action of this character, claims exemplary 
damages, it is incumbent on him to prove affirmatively such facts 
and circumstances as will show the defendant's conduct to have been 
malicious, wanton, or oppressive; as, that defendant knew the 
intemperate habits of the party to whom he sold liquor, that he had 
been notified not to sell to such party, or the like.303 Evidence that 
plaintiff had requested defendant not to sell liquor to her husband is 
competent, although, at the time of the request, defendant was not 
licensed to sell liquor.304 And the reading by the judge to the jury 
of the statute prohibiting the sale of liquor to an intoxicated person 
or an habitual drunkard is not error, as it is admissible on the ques- 
tion of exemplary damages.305 To meet a claim for such damages, 
defendant must be allowed to introduce evidence of his good faith, 
of the absence of bad motives on his part, and of his endeavors to 
prevent the accruing of injury to the plaintiff. But where there is 
nothing to show that the jury gave the plaintiff exemplary damages, 
the exclusion of evidence offered by defendant to show that he had 
instructed his bar-tender not to sell liquor to plaintiff's husband is 
not error.306 
§ 387. Weight and Sufficiency of Evidence. 
The action authorized by the civil damage laws is penal in its nat- 
ure, but it is not a criminal proceeding. Hence, while the material 
allegations of the declaration must be fully proved, it is not neces- 
sary that the evidence should exclude all reasonable doubt. A pre- 
ponderance of evidence is sufficient, and this may result from cir- 
302 Buckham v. Grape, 65 Iowa, 535, 
17 N. W. Rep. 755. 
303 Larzelere v. Kirchgessner, 73 Mich. 
276, 41 N. W. Rep. 488. 
304 Larzelere v. Kirchgessner, 73 Mich. 
9.76, 41 N. W. Rep. 488. 
305 Johnson v. Schultz, 74 Mich. 75, 41 
N. W. Rep. 865. 
^Mayers v. Smith, 121 Ill. 442, 13 N. 
E. Rep. 216. 
389 § 337 
LAW OF INTOXICATING LIQUORS. 
[Ch. 13 
cumstantial as well as direct evidence.307 Where, for example, it is 
shown that defendant kept a liquor-store; that he knew plaintiff's 
husband to be a regular drunkard; and plaintiff testifies that she saw 
her husband drinking liquor in defendant's place with persons named; 
that he was "beastly drunk" and brought home helpless; that she 
requested defendant not to sell to him, which he continued to do; 
and that the husband beat her and failed to support her; this makes 
out a case sufficient to require a submission to the jury, although 
defendant denies each charge, as the jurors are not bound to believe 
him.308 So, where a statute provides that "whoever shall sell or give 
intoxicating liquor to any minor shall forfeit $100 for each offense, 
to be recovered by the parent or guardian of such minor in an action 
of tort," the action under the statute is a civil proceeding, and the 
defendant's guilt need not be proved beyond a reasonable doubt; it 
need not be proved that he knew the buyer to be a minor.309 
307 Hall v. Barnes, 82 111. 228; Lyon v. 
Fleahmann, 34 Ohio St. 151. 
308 O'Connor v. Couzen, 102 N. Y. 702, 
7 N. E. Rep. 369. 
309 Roberge v. Burnham, 124 Mass. 
277, construing Pub. St. Mass. c. 100, § 
24. Compare Comm. v. Finnegau, 124 
Mass. 324. 
390 Ch. 14] 
§ 338 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
CHAPTER XIV. 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
§ 338. Statutes Defining Liquor Nuisances. 
339. Constitutionality of Statutes. 
340. Elements of the Offense. 
341. Who may Institute Proceedings. 
342. Parties Defendant. 
343. Abatement of Nuisance. 
344. Injunction against Nuisance. 
345. Pleading. 
346. Evidence. 
347. Practice. 
348. Allowance of Attorney's Fees. 
349. Contempt Proceedings for Violation of Injunction. 
§ 338. Statutes Defining Liquor Nuisances. 
In several states, statutes have been enacted declaring that houses 
or tenements kept for the unlawful sale of intoxicating liquors shall 
be deemed public nuisances; allowing any citizen of the county to 
maintain a bill for an injunction, or authorizing the district attorney 
to file an information; giving jurisdiction to chancery to enjoin the 
nuisance; and in some cases authorizing its abatement by the 
removal and sale (or destruction) of the liquors, vessels, and imple- 
ments of the trade, and the closing up of the building.1 It is at 
least doubtful whether, in the absence of such statutes, equity would 
take jurisdiction of an application by a private person for an injunc- 
tion against an unlicensed liquor-shop, though the keeping of it 
might constitute a public nuisance, unless the petitioner could show 
some special and individual damage sustained by him in consequence 
of it.2 And even under legislative enactments of this character, the 
effect is not to make intoxicating liquors in themselves a common 
1 Rev. St. Me. c. 27; Rev. St. Vt. § 3834; 
St. Mass. 1887, c. 380, § 1; Ohio Act 
May 1, 1854, § 4, (S. & C. 1431;) Code W. 
Va. c. 32, § 18; Laws N. H. 1887, c. 77, 
§§ 1, 2; Laws R. I. 1887, c. 634, § 14; 
McClain's Code, Iowa, 1888, §§ 1543, 
2389; Comp. Laws Kans. § 2299; Laws 
Kans. 1887, p. 233. 
2 See State v. Uhrig, 14 Mo. App. 413. 
391 § 339 
[Ch. 14 
LAW OF INTOXICATING LIQUORS. 
nuisance, in any such sense that a building in which they were kept 
might lawfully be broken open, and the liquors destroyed, as a nui- 
sance, by persons whose relations and friends frequented the build- 
ing and obtained liquor there.3 
§ 339. Constitutionality of Statutes. 
The constitutional validity of statutes such as are described in the 
preceding section has not been successfully questioned. On the con- 
trary, they are sustained as proper and legitimate ex-ertions of the 
police power, and are not regarded as violative of any rights guar- 
antied by the constitutions.4 In particular, it cannot be maintained 
that such a law is in contravention of the constitutional guaranty of 
trial by jury, inasmuch as equity possesses an ancient and well-set- 
tled jurisdiction for the abatement of nuisances.6 Neither is it 
unconstitutional as depriving the guilty person of his property with- 
out due process of law, the proper and orderly proceedings of a court 
of chancery being "due process of law" within the meaning of the 
constitutional guaranty.6 Nor is it invalid as authorizing punish- 
ment of the offender by fine and imprisonment without indictment 
by a grand jury, the imposition of such punishment, as provided by 
the statute, being in the exercise of the chancellor's power to punish 
for contempt when the defendant refuses to obey the mandate for the 
abatement of the nuisance, and it being within the province of a 
court of competent jurisdiction to punish for contempt, whether the 
proceedings therefor be regarded as civil or criminal, without an 
8 Brown v. Perkins, 12 Gray, 89. 
4 Comm. v. Howe, 13 Gray, 26; State 
v. Hughes, 16 R. I. 403, 16 Atl. Rep. 911; 
Streeter v. People, 69 Ill. 595; Our House 
v. State, 4 Greene. (Iowa,) 172; Zumhoff 
v. State, Id. 526. 
6 Littleton v. Fritz, 65 Iowa, 488, 22 
N. W. Rep. 641, 54 Am. Rep. 19; State 
v. Jordan, 72 Iowa, 377, 34 N. AV. Rep. 
285; Carleton v. Rugg, 149 Mass. 550, 22 
N. E. Rep. 55; Schmidt v. Cobb, 119 U. 
S. 286, 7 Sup. Ct. Rep. 1373. In New 
Hampshire, however, defendant is en- 
titled to a trial by jury to ascertain the 
fact of the nuisance before it can be 
abated in equity; on the ground that it 
is there the uniform practice of equity 
to withhold the permanent injunction 
against an alleged nuisance, until the 
fact of its existence has been established 
by the verdict of a jury, if the defend- 
ant demands a jury trial. State v. Cur- 
rier. (N. H.) 19 Atl. Rep. 1000. 
6 State v. Jordan, 72 Iowa, 377, 34 N. 
W. Rep. 285; Craig v. Werthmueller, 
78 Iowa, 598, 43 N. W. Rep. 606; Mc- 
Lane v. Leicht, 69 Iowa, 401, 29 N. AV. 
Rep. 327. 
392 Ch. 14] 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
§ 340 
indictment.7 Further, if the corporate powers conferred upon a 
municipality are broad enough to authorize an ordinance declaring 
the selling of spirituous liquors a nuisance, such ordinance is valid.8 
But an ordinance declaring that all intoxicating liquors kept within 
the limits of the town for the purpose of being sold for consumption 
within the town shall be deemed a nuisance, and directing the police 
officers of the town to abate the nuisance, by removing the liquor 
beyond the town limits, cannot authorize such officers to seize and 
carry away property, without first having the question judicially 
determined whether such ordinance had been violated. A man's 
property cannot be seized except for a violation of law, and whether 
he has been guilty of such violation can only be determined by a 
court of competent jurisdiction.9 
§ 340. Elements of the Offense. 
In order to constitute a place kept for the sale of liquor a nuisance, 
under the terms of the statute^ we are considering, it is not neces- 
sary that such place should be kept in a disorderly manner,10 nor 
that the proprietor should permit the drinking of liquor on the 
premises.11 Nor, to convict a defendant of maintaining the nuisance, 
is it necessary to show that he knew that the liquor sold at his place 
was intoxicating.12 In Iowa, it is held that the statute applies not 
only to such places as are used for retailing intoxicating liquors, but 
also to all places used for the unlawful manufacture, sale, or keeping 
for sale, of such liquors.13 And in Massachusetts, where the law 
provides that "all buildings, places, or tenements . . . used for 
the illegal keeping or sale of intoxicating liquor shall be deemed 
common nuisances," it is held that an hotel may be a "place" within 
the meaning of the statute.14 As regards the owner of leased prem- 
7 State v. Jordan, 72 Iowa, 377, 34 N. 
W. Rep. 285. 
8 Goddard v. Jacksonville, 15 Ill. 588, 
60 Am. Dec. 773. 
9 Darst v. People, 51 Ill. 286. 
10 Howard v. State, 6 Ind. 444. 
11 State v. Fraser, (N. Dak.) 48 N. W. 
Rep. 343. 
12 State v. Hughes, 16 R. I. 403,16 Atl. 
Rep. 911. 
13Craig v. Werthmueller, 78 Iowa, 598, 
43 N. W. Rep. 606. 
14Comm. v. Purcell, (Mass.) 28 N. E. 
Rep. 288. 
393 § 341 
[Ch. 14 
I,AW OF INTOXICATING LIQUORS. 
ises, it is held that mere knowledge on his part that they are used 
for liquor-selling will not expose him to punishment for maintaining 
a nuisance; there must be proof of his permission or consent.16 In 
West Virginia, under the terms of the statute, it is held that a court 
of equity cannot restrain by injunction a party charged with selling 
intoxicating liquors contrary to law, or abate the house or building 
where such liquors are alleged to be sold, until the owner or keeper 
of such house or place has been convicted of such unlawful selling at 
the place named in the bill.16 But such previous conviction of the 
offender does not appear to be considered requisite to the exercise of 
the powers of equity in the other states. 
§ 341. Who may Institute Proceedings. 
The laws on the subject of liquor nuisances commonly provide that 
the proceedings for their abatement may be instituted by "any citi- 
zen of the county" wherein the nuisance exists or is kept or main- 
tained. Under this clause some decisions have been made which 
are important to be here noticed. Thus, it is held that the action 
may be prosecuted by a person having the necessary qualification of 
residence, both as a citizen of the county and as attorney for the 
state.17 And the right to prosecute such action to judgment is not 
lost by the plaintiff's removal from the county after the commence- 
ment of the action.18 For if the plaintiff's qualification of citizen- 
ship is regarded as essential to the jurisdiction, it is a rule that juris- 
diction, having once attached, is not divested by the subsequent loss 
of that qualification.- It is also held that a Methodist clergyman, 
appointed to preach in a particular town for a year, and intending 
to reside there as long as permitted by the church authorities, and 
no longer, is a citizen, within the meaning of the statute.19 Where 
another statute of the state provides that any person who has an 
interest in the matter in litigation, in the success of either of the par- 
16 State v. Stafford, 67 Me. 125. 
16 Hartley v. Henretta, (W. Va.) 13 S. 
E. Rep. 375. 
17State v. Sioux Falls Brewing Co., 
(S. Dak.) 50 N. W. Rep. 629. 
18 Judge v. Kahl, 74 Iowa, 486, 38 N. 
W. Rep. 173. 
19 Fuller v. McDonnell, 75 Iowa, 220, 
39 N. W. Rep. 277. 
394 Ch. 14] 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
§ 342 
ties, or against both, may become a party by intervention, it is held 
that this does not confer on a citizen the right to intervene in a suit 
commenced by another citizen for the abatement of a liquor nui- 
sance.20 In such action, an answer denying knowledge or informa- 
tion sufficient to form a belief as to whether plaintiff is a citizen of 
the county, is equivalent merely to a general denial, and therefore 
raises no issue as to plaintiff's residence or citizenship.21 
§ 342. Parties Defendant. 
A person who holds a license or permit to sell liquor for certain 
purposes, but who sells for other and unlawful purposes, or who sells 
for the permitted purposes without observing the conditions or for- 
malities which the law imposes upon him, is guilty of maintaining 
a nuisance and may be enjoined.22 Where it appears that two per- 
sons, as partners, are owners of the nuisance, only one of^ whom 
is made a party, the other must be brought into court before a 
final decree can be made.23 It is further to be observed that the 
"keeper" of such a place is not only the owner thereof, but any other 
person who is in possession and control of the room and liquors, and 
who manages the unlawful business.24 At the same time, if one 
defendant is the sole proprietor, or has sole charge of the premises, 
and the other only kept or maintained the premises as his servant, 
under his direct personal supervision, the latter cannot be convicted.25 
If the owner or lessor of the property, though taking no direct part 
in the unlawful business, knows of the use which is being made of the 
property and consents thereto, he is guilty of the nuisance, equally 
with the saloon-keeper.26 Where the defendants hold the building 
in question under a life-estate, a decree closing such building for a 
year will become inoperative at the termination of such estate, if it 
20 Fennell v. Zerber, 74 Iowa, 699, 39 
N. W. Rep. 113. 
21 Craig v. Hasselman, 74 Iowa, 538, 38 
N. W. Rep. 402. 
22 State v. Webber, 76 Iowa, 686, 39 N. 
W. Rep. 286; State v. Davis, 44 Kans. 
60, 24 Pac. Rep. 73. 
23 Shear v. Green, 73 Iowa, 688, 36 N. 
W. Rep. 642. 
24 Schultz v. State, 32 Ohio St. 276. 
25State v. Gravelin, 16 R. I. 407, 16 
Atl. Rep. 914. 
26 Bell v. Glaseker, (Iowa,) 47 N. W. 
Rep. 1042; State v. Douglass, 75 Iowa, 
432, 39 N. W. Rep. 686. 
395 § 343 
[Ch. 14 
LAW OF INTOXICATING LIQUORS. 
terminate within the year, the remainder-men not being made par- 
ties to the action.27 The jurisdiction of all matters in bankruptcy 
vested in the federal courts is not exclusive of that of the state courts 
to entertain an action for the abatement of a liquor nuisance main- 
tained on property belonging to the bankrupt estate, that being a 
matter of police regulation, which does not interfere with the bank- 
rupt jurisdiction of the federal courts.28 
§ 343. Abatement of Nuisance. 
The statutes provide for the abatement of an existing nuisance by 
seizing and destroying the liquor, removing from the building all 
articles used in carrying on the business, and closing the place for a 
definite period, as a year. When the fact of the nuisance has been 
established, an order for its abatement in this manner is not only 
justified, but it is error for the court to refuse to make it.29 But the 
statute does not authorize the destruction of the building by private 
individuals or by the public authorities; the abatement of a nuisance, 
caused by the illegal use of a building, consists in the prevention of 
the future illegal use, and not in the destruction of the building; and 
no private individual is authorized to abate a nuisance, public or 
private, except when and so far as it actually obstructs him in the 
exercise of his rights.30 And further, "no order to shut up or abate 
the place can rightfully be made, unless the nuisance continues to 
exist at the time such order is made. Unless, therefore, the court is 
satisfied that, at the time of making the order, the place is kept for 
the sale of liquors in violation of the act, no order should be made. 
For it is the unlawful business, and not the place per se, that creates 
the nuisance; and hence, when the business has ceased, there is no 
nuisance to abate. No man's property can be forfeited as a punish- 
ment for crime. . . . Hence there is no power to deprive a man 
of the use of his property, unless it be necessary in order to abate an 
27 Danner v. Hotz, 74 Iowa, 389, 37 N. 
W. Rep. 969. 
28Radford v. Thornell, (Iowa,) 45 N. 
W. Rep. 890. 
29 McClure v. Braniff, 75 Iowa, 38, 39 
N. W. Rep. 171; State v. Adams, (Iowa,) 
47 N. W. Rep. 770. 
80 State v. Paul, 5 R. I. 185; State v. 
Keeran, Id. 497. 
396 Ch. 14] 
§ 344 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
existing nuisance."31 An order of court directing that the liquor 
found in a certain place shall be destroyed, and that all fixtures, 
furniture, vessels, and all movable property on the premises, used in 
the unlawful business, shall be removed and sold, sufficiently 
describes the property to be so removed and sold.32 When the place 
has been closed, by order of the court, it is unlawful for the defend- 
ant to re-open it within the prescribed time; but this is only upon 
condition that the officer has fully and faithfully complied with the 
directions of the statute and of the order, in closing the place and 
posting notices.33 
§ 344. Injunction against Nuisance. 
Where a person has violated the rights of another, or of the pub- 
lic, by erecting and maintaining a nuisance, such as keeping and using 
premises for the unlawful sale of liquor, an injunction may be granted 
to restrain such person from so using the premises in the future, 
although the nuisance has been abated.31 A place where liquor has 
been illegally sold may be abated where the only change in the busi- 
ness shown is the discharge of a clerk who was alleged to have made 
the sales without the owner's authority, and there is evidence of sub- 
sequent sales by the owner.35 But on the other hand, where the evi- 
dence shows that the owner of the building had acted in entire good 
faith in endeavoring to prevent illegal sales, and had, as soon as possi- 
ble after discovering that liquor was so sold, terminated the lease and 
ousted the tenant, it would be error to decree an injunction against 
him.36 So where, after the granting of a temporary injunction, the 
lessor served notice to quit on the lessee, and instituted proceedings 
for forcible entry and detainer against him, and prosecuted them 
vigorously but unsuccessfully, both before the justice and in the dis- 
trict court, it was held that a judgment on the final hearing, dissolv- 
31 Miller v. State, 3 Ohio St. 475. 
32 Craig v. Werthmueller, 78 Iowa, 598, 
43 N. W. Rep. 606. 
33State v. Clark, (Vt.) 19 Atl. Rep. 981. 
34 Judge v. Kribs, 71 Iowa, 183, 32 N. 
W. Rep. 324; Danner v. Hotz, 74 Iowa, 
389, 37 N. W. Rep. 969; Half man v. 
Spreen, 75 Iowa, 309, 39 N. W. Rep. 512. 
35 Elwood v. Price, 75 Iowa, 228, 39 N. 
W. Rep. 281. 
36Drake v. Kingsbaker, 72 Iowa, 441, 
34 N. W. Rep. 199; Eckert v. Davis, 75 
Iowa, 302, 39 N. W. Rep. 513. 
397 § 345 
[Ch. 14 
LAW OF INTOXICATING LIQUORS. 
ing the temporary injunction and dismissing the proceedings as to 
him, was not error.37 The injunction should not go further than 
the prayer of the bill. And where the bill does not allege that defend- 
ant is engaged in the manufacture of a particular kind of liquor,- 
for example, beer,-and asks no relief in that respect, a decree 
restraining defendant from making such liquor will be modified.38 
The writ of injunction should specify with reasonable certainty the 
place to which its prohibition is intended to apply, but it need not 
designate the particular building intended.39 
§ 345. Pleading. 
The petition or complaint for an injunction against a liquor nui- 
sance, or for its abatement, must describe the place where the alleged 
nuisance is maintained, allege the facts constituting the nuisance, 
and connect the persons named as defendants with the unlawful acts 
complained of. Thus, a petition which alleges that the building 
occupied by defendants "as a drug store, is a place where spirituous 
liquors are unlawfully kept and sold, and is a common nuisance," is 
bad on demurrer, for it does not show the liquor is kept and sold by 
defendants.40 But an allegation that the unlawful sale of liquor is 
conducted in a building with the owner's permission, is equivalent to 
saying that it is done with his knowledge and consent, and authorizes 
an injunction.41 And so an allegation that the defendant "is 
guilty of keeping and maintaining a certain tenement," then and 
there used for the illegal keeping and illegal sale of intoxicating liq- 
uors, is equivalent to an allegation that he "did keep and maintain 
a certain tenement," etc.; it is not so uncertain as to furnish reason 
for quashing the complaint.42 A complaint charging the keeping and 
maintaining a common nuisance, by keeping and maintaining a tene- 
ment used for the illegal keeping and illegal sale of intoxicating liq- 
37 Morgan v. Koestner, (Iowa,) 49 N. 
W. Rep. 80; Shear v. Brinkman, 72 
Iowa, 698, 34 N. W. Rep. 483. 
38 Kaufman v. Dostal, 73 Iowa, 691, 36 
N. W. Rep. 643. 
39 Ver Straeten v. Lewis, 77 Iowa, 130, 
41 N. W. Rep. 594. 
40State v. Batchellor, (N. H.) 20 Atl. 
Rep. 931. Compare Our House v. State, 
4 Greene, (Iowa,) 172. 
41 Gray v. Stienes, 69 Iowa, 124, 28 N. 
W. Rep. 475. 
42 Comm. v. Gallagher, 145 Mass. 104, 
13 N. E. Rep. 359. 
398 Ch. 14] 
§ 346 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
uors, is sufficient, without any further allegation negativing an 
authority to keep and sell the same.43 When the information gives 
a lengthy and explicit description of the place where it is alleged the 
nuisance was kept and maintained, an incorrect statement as to one 
of the numerous particulars in the description, which could not possi- 
bly mislead the defendant, nor affect his interests prejudicially, is not 
to be held fatal to the prosecution.44 An answer, in an action of this 
kind, which does not deny that the nuisance existed and was being 
maintained at the time the action was brought, but merely alleges 
that afterwards the defendant obtained and now holds a permit to 
sell liquor, is demurrable.45 
§ 346. Evidence. 
The allegations of a petition for the abatement of a liquor nuisance, 
if not controverted, must be taken as true; and in such case it is not 
necessary, in order for the plaintiff to succeed, to introduce any evi- 
dence whatever.46 But if the facts are put in issue, the complainant 
may proceed to make out his case by circumstantial evidence as well 
as direct. Thus, while the mere possession of liquor in a dwelling- 
house will not authorize the jury to find that it was kept with intent 
to sell, yet the fact that such house is a place of common resort, the 
stock of liquors kept there, and the circumstances under which it is 
kept, are evidence for the jury upon the question whether such stock 
was kept for use in the family or for sale.47 So also, certificates 
showing the purchase of liquor from the defendant, though not shown 
to be public records, are competent evidence, both as corroborative 
of witnesses' testimony that they procured liquor from the defendant, 
and as an admission on his part that he had made the sales.48 Where 
43 Comm. v. Brusie, 145 Mass. 117, 13 
N. E. Rep. 378. 
44 State v. Reno, 41 Kans. 674, 21 Pac. 
Rep. 803. 
45 Halfman v. Spreen, 75 Iowa, 309, 39 
N. W. Rep. 512; Tibbetts v. Burster, 76 
Iowa, 176, 40 N. W. Rep. 707; Rice v. 
Schlopp, 78 Iowa, 753, 41 N. W. Rep. 
603. 
46 Bloomer v. Glendy, 70 Iowa, 757, 30 
N. W. Rep. 486; Peisch v. Linder, 73 
Iowa, 766, 33 N. W. Rep. 133. 
47 Comm. v. Kane, 150 Mass. 294, 22 
N. E. Rep. 903. 
48 State v. Huff, 76 Iowa, 200,40 N. W. 
Rep. 720. 
399 § 347 
[Ch. 14 
LAW OF INTOXICATING LIQUORS. 
the evidence is undisputed that defendant had made sales of liquor, 
the only question being as to his good faith, the court does not infringe 
on the province of the jury, by assuming the fact, in its charge, that 
defendant had made sales.49 Furthermore, a decree enjoining a 
liquor nuisance will not be disturbed if there is any evidence to sus- 
tain it, although an apparent preponderance of the testimony may 
be against the finding and judgment.50 A general denial, it is held, 
does not put in issue the allegation in the petition as to the com- 
plainant's residence, and proof in support thereof need not be intro- 
duced, although, by the statute, the action must be brought by a 
citizen of the county.51 As an action of this kind is a civil proceed- 
ing, depositions may be taken and used in evidence.52 
§ 347. Practice. 
The statutes commonly provide for the issuance of a preliminary 
injunction on ex parte proofs. Thus, in Iowa, the law is, that when 
it is made to appear to the satisfaction of the court, by affidavits or 
otherwise, as the court may order, that a liquor nuisance actually 
exists, or is being maintained, a temporary injunction shall issue as 
of course, without bond, upon defendant's application for a continu- 
ance. Under this act, it is held that where the complaint alleges 
the existence and maintenance of such nuisance, and is supported 
by affidavit, and the record fails to show that the court took or 
required any further proof, it is error to grant defendant's applica- 
tion for a continuance without granting the injunction.53 But a final 
decree, abating the nuisance and for a perpetual injunction, will not 
be reversed on the ground that a temporary injunction was granted 
without notice to defendants.54 A judge, however, has no authority 
to make an order at chambers abating an alleged liquor nuisance 
49 State v. Huff, 76 Iowa, 200, 40 N. 
W. Rep. 720. 
60Sickinger v. State, (Kans.) 25 Pac. 
Rep. 868. See, also, Littleton v. Harris, 
73 Iowa, 167, 34 N. W. Rep. 800. 
61 Littleton v. Harris, 73 Iowa, 167, 34 
N. W. Rep. 800. 
62 In re Rancour, (N. H.) 20 Atl. Rep. 
930. 
63 Tibbetts v. Burster, 76 Iowa, 176, 40 
N. W. Rep. 707. 
64 State v. Douglass, 75 Iowa, 432, 39 
N. W. Rep. 686. 
400 Ch. 14] 
INJUNCTION AND ABATEMENT OF LIQUOR NUISANCES. 
§ 349 
and perpetually enjoining the maintenance of the same.55 In a case 
where the defendant pleaded guilty, and filed an affidavit stating that 
he conducted his business in good faith, and believing that he had a 
right to do so, having begun it before the statute was passed, and 
finally abandoned it when the constitutionality of the statute was 
determined, and he wras sentenced to pay a fine of $1,000 and to be 
imprisoned in default thereof, it was held that the judgment should 
not be reduced, as it did not appear from the record that the trial 
court abused its discretion.56 
§ 348. Allowance of Attorney's Fees. 
In lo-wa, the statute provides that, in an action for the abatement 
or injunction of a liquor nuisance, the plaintiff, if successful, shall 
be entitled to not less than twenty-five dollars as an attorney's fee. 
It is held to be the duty of the court, if there is any contention as to 
the amount to be taxed as such fee, to hear testimony as to the value 
of the services rendered.57 And if there is no evidence of the amount 
of labor performed by the attorney, and the record shows no evidence 
taken on the trial save the defendant's answer, the fee will be fixed 
at the statutory minimum.68 This provision, it is held, applies as 
well to actions prosecuted by the county attorney in the name of the 
state, as to those prosecuted by a private citizen in his own name.59 
And the county attorney is entitled to have the fee taxed as costs in 
the case.60 
§ 349. Contempt Proceedings for Violation of Injunction. 
If the person to whom the injunction is directed persists in main- 
taining the nuisance, or otherwise disobeys the lawful order of the 
court, it is a contempt, for which he may be punished.61 In some 
65 In re Harmer, (Kans.) 27 Pac. Rep. 
1004. 
56 State v. Maloney, 79 Iowa, 413,44 
N. W. Rep. 693. 
57 Craig v. Werthmueller, 78 Iowa, 
598, 43 N. W. Rep. 606. 
68 Farley v. Geisheker, 78 Iowa, 453, 
43 N. W. Rep. 279. 
69 State v. Douglass, 75 Iowa, 432, 39 
N. W. Rep. 686. 
60 Farr v. Seaward, (Iowa,) 48 N. W. 
Rep. 67. 
61 Schultz v. State, 32 Ohio St. 276. 
INTOX.LIQ.-26 
401 § 349 
LAW OF INTOXICATING LIQUORS. 
[Ch. 14 
states, the proceedings for the punishment of such contempt are reg- 
ulated by statute, but the decisions thereunder are not numerous. 
It is held that where the act permits the examination of witnesses in 
court, in such proceedings, their testimony may be oral and may be 
taken down and transcribed by a stenographer.62 The proceeding 
may properly be brought in the name of the state, and need not be 
instituted by the plaintiff in the original action for injunction.63 As 
to the measure of punishment, it must not be confounded with that 
prescribed for the original offense of maintaining the nuisance. 
Because the statute establishes a certain fine or imprisonment for 
the main offense, it does not follow that the same penalty may be 
imposed for a contempt in violating the injunction.64 
62 Goetz v. Stutzman, 73 Iowa, 693, 36 
N. W. Rep. 644. 
63 Fisher v. District Court, 75 Iowa, 
232, 39 N. W. Rep. 283. 
64 Goetz v. Stutzman, 73 Iowa, 693, 36 
N. W. Rep. 644. 
402 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 350 
CHAPTER XV. 
SEARCH AND SEIZURE LAWS. 
§ 350. Statutes on the Subject. 
351. Constitutionality of Statutes. 
352. Nature of the Proceeding. 
353. In Whose Possession Liquor may be Seized. 
354. Complaint or Information. 
355. Verification of Complaint. 
356. Requisites of Search-Warrant. 
357. Description of Premises to be Searched. 
358. Description of Liquors to be Seized. 
359. Execution of Warrant. 
360. What Property may be Seized. 
361. Officer's Return to Warrant. 
362. Status of Property under Seizure. 
363. Arrest or Seizure without Warrant. 
364. Notice to Claimants. 
365. Jurisdiction and Procedure. 
366. Evidence. 
367. Rights of Claimant. 
§ 350. Statutes on the Subject. 
The statutes familiarly known as "search and seizure laws," which 
have been adopted in a number of the states, are intended to aid in 
the suppression of the unlawful traffic in liquors, by authorizing pro- 
ceedings in rem, against the illicit property itself, resulting in its for- 
feiture or destruction, and connected with a criminal liability on the 
part of the person who has illegally kept them or dealt in them. 
Briefly described, these statutes provide that any citizen may file a 
verified complaint, setting forth that intoxicating liquors are kept 
unlawfully, or kept with intent to be sold unlawfully, in a certain 
described place; that thereupon a search-warrant shall issue, direct- 
ing the officer to enter the suspected premises and search for the 
described liquors, and to seize them upon discovery; that the officer 
shall hold the goods in his custody, and make return of his doings 
upon the warrant to the magistrate; that an officer, without a war- 
403 § 351 
[Ch. 15 
LAW OF INTOXICATING LIQUORS. 
rant, may seize liquors found by him in any case where he would 
have been authorized to search for them if armed with a warrant, 
and may arrest any person found in the act of unlawfully selling or 
transporting liquor, but he shall then forthwith (or within a reason- 
able time) procure a warrant, and make return, as above, of what he 
has already done; that a hearing shall be had, after notice, to deter- 
mine whether the law has been violated by the keeping of the res; 
and that, this question being determined affirmatively, the property 
shall be destroyed, or else forfeited and sold for the benefit of the 
town.1 In some cases it is also provided that a claimant of the liq- 
uors may appeal from a judgment of condemnation, on giving a bond 
or entering into a recognizance. 
§351. Constitutionality of Statutes. 
The question of the constitutional validity of search and seizure 
laws was examined at some length in an earlier chapter, and we 
there found that such statutes in their usual form, with due observ- 
ance of the rights of persons and property, are not open to objection 
under either the federal or state constitution.2 It would be beyond 
the power of the legislature to authorize a search of a man's prem- 
ises without a warrant, but a statute which authorizes the summary 
seizure of liquor without a warrant, is constitutional.3 And in so 
far as regards the disposition of the illicit property, it must be 
observed that a statute providing for the forfeiture and destruction of 
property for a violation of latv is not in conflict with the constitutional 
provision that private property shall not be taken for public use with- 
out just compensation.4 At the same time, the statute must provide 
iRev. St. Me. c. 27, §§ 34-40; LawsN. 
H. 1887, c. 77; Laws Vt. 1886, no. 38; 
Pub. St. Mass. c. 100, § 30; Gen. St. 
Conn. p. 270, § 1; Pub. St. R. I. c. 87, 
§ 28; Code Iowa, §§ 1544-1547. 
2 Supra, §§ 52, 53. And see Gray v. 
Kimball, 42 Me. 299; State v. Miller, 48 
Me. 576; Lincoln v. Smith, 27 Vt. 328; 
Gill v. Parker, 31 Vt. 610; Allen v. Sta- 
ples, 6 Gray, 491; State v. Wheeler, 25 
Conn. 290; Oviattv. Pond, 29 Conn. 479; 
State v. Snow, 3 R. I. 64; In re Liquors 
of McSoley, 15 R. I. 608, 10 Atl. Rep. 
659;-In re Liquors of Horgan, 16 R. I. 
542, 18 Atl. Rep. 279; State v. Fitzpat- 
rick, 16 R. I. 54, 11 Atl. Rep. 773; Santo 
v. State, 2 Iowa, 165, 63 Am. Dec. 487. 
8State v. O'Neil, 58 Vt. 140, 2 Atl. 
Rep. 586; Jones v. Root, 6 Gray, 435; 
Mason v. Lothrop, 7 Gray, 354. 
4 State v. Snow, 3 R. 1. 64; State v. 
Brennan's Liquors, 25 Conn. 278; Fish- 
404 § 352 
Ch. 15] 
SEARCH AND SEIZURE LAWS. 
for notice to the party interested in the property, and for a trial and 
judicial ascertainment of the facts requisite by the statute to warrant 
a forfeiture, and an opportunity must be given for such party to 
appear and defend. If the statute fails in these particulars, it is not 
valid.6 
§ 352. Nature of the Proceeding. 
The proceeding authorized by the search and seizure laws, being 
for the purpose of forfeiting property, on the ground that it is kept 
for an illegal and criminal purpose, is clearly in the nature of a crim- 
inal proceeding, although the form of it is assimilated to that of a 
civil action.6 "The proceeding in question was created by statute 
for the purpose of condemning property that is dangerous to the pub- 
lic safety, and disposing of it so that it can do no harm. It is not 
a suit between one party and another according to the course of the 
common law, and would not, either in ordinary or technical language, 
be classed among civil actions."7 Yet it is not a criminal prosecu- 
tion, in any exact sense of the term,-in any such sense, for example, 
as would require the finding of an indictment. For it is not prima- 
rily directed against any person. It is true the owner or keeper of 
the liquor may intervene or be made a party. But the proceeding 
might well begin and terminate without any disclosure of the owner- 
ship of the property or the appearance of any claimant. The pro- 
ceeding is therefore to be regarded as one in rem, against the liquors 
for their condemnation as forfeited property, and the complaint is in 
the nature of a libel.8 Important consequences follow from the observ- 
ance of this distinction. Thus, the proceeding not being strictly a 
criminal action, the issues are to be tried by the rules applied in the 
trial of civil causes.9 Again, the determination being in rem, it fixes 
er v. McGirr, 1 Gray. 1, 61 Am. Dec. 
381; Comm. v. Intoxicating Liquors, 107 
Mass. 396; Bishop, Stat. Crimes, § 993. 
6 State v. Snow, 3 R. I. 64; Greene v. 
James, 2 Curt. C. C. 187; Fisher v. Mc- 
Girr, 1 Gray, 1, 61 Am. Dec. 381; Hib- 
bard v. People, 4 Mich. 125; People v. 
Haug, 68 Mich. 549, 37 N. W. Rep. 21. 
6 Hibbard v. People, 4 Mich. 125; State 
v. Intoxicating Liquors, 40 Iowa, 95; 
State v. Robinson, 49 Me. 285; State v. 
Liquors and Vessels, 80 Me. 57, 12 AtL 
Rep. 794. 
7 State v. One Bottle of Brandy, 43 
Vt. 297. 
8 State v. Barrels of Liquor, 47 N. H. 
369; Hine v. Belden, 27 Conn. 384; 2 
Black, Judgm. § 799. 
9 State v. Barrels of Liquor, 47 N. H. 
369. 
405 § 353 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
the status of the property as to all the world, and notice to the per- 
son in whose possession the liquor happens to be when seized is all 
the notice required, and the owner is bound by the proceedings 
whether he has notice or not.10 So also, this proceeding is entirely 
distinct from any prosecution which may be instituted against the 
person who had the liquors unlawfully in possession. And hence, in 
such prosecution, it is immaterial what sentence was passed upon the 
liquors;11 and conversely, a conviction of the person is no bar to a 
proceeding against the goods.12 These statutes, it is held, refer to 
place, and cannot be extended to process against the person. Hence 
such process cannot be issued for the search of a person who is alleged 
to travel about with a stock of liquor on his person, making sales of 
the same.13 
§ 353. In Whose Possession Liquor may be Seized. 
It is held that when intoxicating liquor is in transit from a vendor 
without the state to a purchaser within the state, and is in the hands 
of a carrier, to be delivered by him on payment of the price, the car- 
rier is the agent of the seller, and as his possession is coupled with 
an intention to complete the sale, within the state, by collecting the 
money and delivering the goods, it is unlawful. Hence the liquor is 
subject to seizure and forfeiture in the hands of the carrier.14 And 
so, liquor in the possession of a warehouseman, but intended by the 
owner for unlawful sale within the state when it shall reach its desti- 
nation, is liable to be seized, and the lien of the warehouseman is no 
bar to the proceeding, although he has no intention to violate the 
law.16 But the fact that one who is a mere bailee of the owner of 
liquor, with no authority from him to make sales, designs illegally to 
sell such liquors within the state, will not work a forfeiture of the 
10 Johnson v. Williams, 48 Vt. 565. 
11 State v. McCann, 61 Me. 116. 
12Sanders v. State, 2 Iowa, 230. 
13 State v. Grames, 68 Me. 418. 
14 State v. O'Neil, 58 Vt. 140, 2 Atl. 
Rep. 586; State v. U. S. Express Co.. 70 
Iowa, 271, 30 N. W. Rep. 568. But in- 
toxicating liquors found in a railroad 
station in transit to a Soldiers' Home 
on federal territory within the state, 
are not liable to seizure, although they 
are to be sold by the store keeper of the 
home. State v. Cobaugh. 78 Me. 401, 6 
Atl. Rep. 4. 
15 State v. Intoxicating Liquors, 50 
Me. 506. 
406 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 354 
property.16 Intoxicating liquors purchased by municipal officers, 
without authority and in contravention of the statute,17 or held by 
such officers without being marked and identified as the law requires,18 
are liable to be seized and adjudged forfeited. And a warrant may 
be issued to search for and seize liquor already taken by an officer 
from a person engaged in illegally transporting it, and still held by 
the officer.19 
§ 354. Complaint or Information. 
If the complaint and warrant for the seizure of liquor, under these 
laws, follow the language of the statute or the forms which it pre- 
scribes, it will in general be sufficient, and the circumstances need 
not be alleged with a particularity of averment beyond that.20 
Although the law requires the information to be made by a resident 
of the county, it is not necessary that the information should show 
such residence on the part of the informant; the fact may be estab- 
lished by independent proof.21 But where the statute authorizes the 
issue of a search-warrant for liquors "owned or kept by any person 
named or described as particularly as may be," the information must 
allege ownership in some specific person.22 The complaint is also 
required to describe the location of the property to be searched for. 
And this should be done with as much precision and accuracy as the 
circumstances will permit.23 Generally, the statutes do not allow a 
16 State v. Intoxicating Liquors, 63 
Me. 121. 
17 State v. Intoxicating Liquors, 68 
Me. 187. 
18 Androscoggin R. Co. v. Richards, 
41 Me. 233. 
19 Allen v. Staples, 6 Gray, 491. 
20 State v. Intoxicating Liquor, 38 Vt. 
387; State v. Welch, 79 Me. 99, 8 Atl. 
Rep. 348; State v. Howley, (Me.) 9 Atl. 
Rep. 620; Comm. v. Intoxicating Liq- 
uors, 13 Allen, 52; Comm. v. Grady, 108 
Mass. 412; Comm. v. McLaughlin, Id. 
477; Comm. v. Hazeltine, Id. 479; 
Comm. v. Intoxicating Liquors, 107 
Mass. 216. 
21 State v. Blair, 72 Iowa, 591, 34 N. 
W. Rep. 432. 
22 State v. Intoxicating Liquors, 64 
Iowa, 300, 20 N. W. Rep. 445. 
23 Where the information was entitled 
"State of Iowa, Clayton County, " held, 
that it was unnecessary to allege in the 
information that the liquors were in 
Clayton county. State v. Thompson, 
44 Iowa, 399. But a complaint alleging 
that certain intoxicating liquor is kept 
in a specified place, etc., is not sup- 
ported by a verdict which finds that the 
liquor was owned or kept there. Comm, 
v. Intoxicating Liquors, 4 Allen, 601. 
See infra, § 357. 
407 § 354 
[Ch. 15 
LAW OF INTOXICATING LIQUORS. 
warrant to be issued for the search of a dwelling-house unless it is 
alleged to be a place of common resort for tippling purposes or to be 
kept as a dram-shop. In compliance with this requirement, an aver- 
ment that the house is occupied by the defendant "as a place of com- 
mon resort kept therein," is sufficient.24 The complaint must also 
charge the illegality of the keeping, or intention to sell the liquor in 
violation of law. To this end, an allegation that the property "was 
kept for the purpose of sale, without authority, within this state, 
against the statute," is sufficient.25 So also is an allegation that the 
liquors described were kept by the defendant "for sale within this 
state, in violation of law, upon said date."26 But a complaint which 
alleges that the liquors were in the possession of the accused, and 
were intended for unlawful sale within the state, but not alleging an 
unlawful intention to sell by the accused, is held to be insufficient.27 
In Vermont, it is held that the complaint need not be signed by the 
complainants, although the statute requires it to be reduced to writ- 
ing by the magistrate.28 An averment, in search and seizure process, 
"that defendant had been before convicted of keeping and depositing 
in [the state] intoxicating liquors with intent that the same should 
be sold in that state in violation of law," is sufficient, when coupled 
with particular averments of the time, place, and court in which the 
conviction was had, to charge a former conviction for the offense of 
keeping liquors with the intention of illegally selling them, so as to 
make the accused liable to the added penalty provided by statute 
upon conviction for a repeated offense.29 Where that provision of 
the statute which allows the seizure of liquor without a warrant is 
silent as to the time of making the complaint, it may be made after 
the seizure as well as before.30 But in such case, only the officer 
who makes the seizure and apprehends the keeper of the place is 
authorized to make the complayit.81 
24 Comm. v. Leddy, 105 Mass. 381. 
25 In re Liquors of Young, 15 R. I. 
243, 3 Atl. Rep. 3. 
26 In re Liquors of Hoxie, 15 R. I. 241, 
3 Atl. Rep. 1; Comm. v. Intoxicating 
Liquors, 4 Allen, 593. 
27 State v. Miller, 48 Me. 576. 
28 Gill v. Parker, 31 Vt. 610. 
29 State v. Longley, 79 Me. 52, 7 Atl. 
Rep. 902. 
30 State v. Intoxicating Liquors, 58 
Vt. 594, 4 Atl. Rep. 229. 
31 Fenner v. State, 3 R. I. 107. 
408 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 355 
§ 355. Verification of Complaint. 
As it is a universal rule of American constitutional law that search- 
warrants may not be issued except upon probable cause supported 
by oath or affirmation, the complaint or information, under the stat- 
utes we are considering, is always required to be verified. But a 
statutory requirement that the search-warrant "shall be supported 
by the oath of the complainant," is complied with by the complain- 
ant's making oath to the complaint upon which the warrant is 
issued.32 Where the warrant is issued upon the oath of the complain- 
ants "that they have reason to believe and do believe the allegations 
in said complaint to be substantially true," this is considered suffi- 
cient, and it is not necessary that the facts upon which the belief 
was founded should be sworn to.33 Further, it is held that the oath 
does not form a part of the complaint, although incorporated therein, 
and hence the prosecution is not required to prove all the facts 
detailed in the oath.34 A complaint, under these laws, may be made 
on affirmation by one who is conscientiously scrupulous of taking 
an oath, notwithstanding the statute requires a "sworn complaint."35 
And the certificate of the magistrate before whom the complaint is 
made, reciting the fact that the complainant made solemn affirma- 
tion to the complaint, is conclusive not only that the complainant 
was "conscientiously scrupulous of taking an oath," but that he "form- 
ally affirmed under the pains and penalties of perjury."36 In some 
states, a special affidavit is required to be made when the warrant 
is for the search of a dwelling-house; but it is held that this is not 
needed when the place complained of is described merely as a "house 
occupied and kept by" a certain named person.37 
32 Downing v. Porter, 8 Gray, 539; Al- 
len v. Staples, 6 Gray, 491. 
33 Lowrey v. Gridley, 30 Conn. 450. 
34 Comm. v. Intoxicating Liquors, 142 
Mass. 470, 8 N. E. Rep. 421. 
35 State v. Welch, 79 Me. 99, 8 Atl. 
Rep. 348. 
36 State v. Devine, (Me.) 13 Atl. Rep. 
128. 
37 Sanders v. State, 2 Iowa, 230. 
409 § 356 
[Ch. 15 
LAW OF INTOXICATING LIQUORS. 
§ 356. Requisites of Search-Warrant. 
A search-warrant, issued in pursuance of the statutes under con- 
sideration, is a sufficient justification for the officer acting under it, 
where the magistrate has jurisdiction, and the face of the warrant 
discloses sufficient ground for his judicial action.38 As to the facts 
and recitals necessary to appear in the warrant, much will depend 
upon the terms of the particular statute. Thus, if the statute requires 
the insertion of the allegation of probable cause for the search, it 
cannot safely be omitted.39 The warrant must also show that it was 
founded upon the oath required by law.40 And it must recite the 
names of the complainants.41 But it need not direct that the com- 
plainants be summoned to appear as witnesses at the hearing of the 
complaint.42 Nor need it name the owner of the liquors, if it names 
the person in whose possession they are found.43 Where the statute 
provides that a warrant to search a dwelling-house cannot be issued 
except upon the testimony of witnesses, reduced to writing, that there 
is reasonable ground for believing that spirituous liquors are kept 
there for unlawful sale, the warrant must show a compliance with 
this preliminary.44 And where the act provides that "no warrant 
shall issue for the search of a dwelling-house, unless a tavern, store, 
eating-room, or place of common resort, is kept therein," a descrip- 
tion of a dwelling-house as "a place of common resort" merely, is 
not sufficient. "The statute contemplates a place kept for the pur- 
poses of common resort, i. e., appropriated to such purposes by the 
occupant, keeper, or person having the control of the premises."45 
In Maine, it is required that the warrant contain an order to arrest 
the accused. And it is said that if, instead of that, he is summoned, 
38 Thurston v. Adams, 41 Me. 419. 
The warrant, under Gen. St. Conn. p. 
270, § 5, to search for liquors, need not 
state that a complaint has been made, 
etc., all this appearing in the complaint 
and justice's certificate, both on the 
same paper with the warrant. Hornig 
v. Bailey, 50 Conn. 40. 
39 Comm. v. Intoxicating Liquors, 105 
Mass. 178. 
40 Comm. v. Intoxicating Liquors, 6 
Allen, 599. 
Guenther v. Day, 6 Gray, 490. 
42 Downing v. Porter, 8 Gray, 539. 
43 Allen v. Staples, 6 Gray, 491. 
44State v. Staples, 37 Me. 228; Mc- 
Glinchy v. Barrows, 41 Me. 74. 
45 Comm. v. Intoxicating Liquors, 97 
Mass. 332. 
410 Ch. 15] 
§ 357 
SEARCH AND SEIZURE LAWS. 
and appears, and the case is continued, and then an amendment 
allowed by the court, the proceedings are illegal.46 A direction in 
the warrant that the officer "make due return of this warrant" is suf- 
ficient.47 
§ 357. Description of Premises to be Searched. 
By a well-known principle of constitutional law, search-warrants 
are required to contain a description of the premises to be searched 
so specific and accurate as to avoid any unnecessary or unauthorized 
invasion of the right of privacy. There is perhaps no single test 
which could be invariably applied to the description in the warrant, 
to determine its sufficiency. But it has been said, in general terms, 
that the description will be sufficiently certain, if it is such as would 
be required in a deed to convey a specific parcel of real estate.44 
Further, the premises must be particularly described both in the 
warrant and in the complaint on which it is founded. And if the 
warrant merely directs the entry and search of the building "above 
described," meaning certain premises described in the complaint, it 
is void.49 And the two descriptions must either be verbally identical 
or at least so closely corresponding that the differences between them 
could not possibly occasion doubt or mistake.80 But a variance in 
unimportant or unessential details will not necessarily invalidate the 
process. Thus, where the complaint described the premises as for- 
merly owned by A., and the warrant as formerly owned by B., it was 
held that the repugnant words might be rejected as unimportant, if, 
independent of them, the description given was sufficient clearly to 
designate the place to be searched.51 And so, where the only differ- 
ence between the description in the complaint and that in the war- 
rant was that the former located the premises at number 197 on a 
designated street, and the latter at number 179, and it appeared that 
the person named occupied only number 197 on that street, it was 
46 State v. Leach, 38 Me. 432. 
47 Comm. v. Intoxicating Liquors, 97 
Mass. 62. 
48 State v. Bartlett, 47 Me. 388; State 
v. Robinson, 33 Me. 564. 
49 Comm. v. Intoxicating Liquors, 109 
Mass. 371. 
60 Comm. v. Intoxicating Liquors, 115 
Mass. 145. 
51 State v. Bartlett, 47 Me. 388. 
411 § 357 
[Ch. 15 
LAW OF INTOXICATING LIQUORS. 
held that a search of number 197 was justified by the warrant.52 It 
is generally considered that the description in the warrant will be 
sufficiently certain and precise if it designates the house by its proper 
number on the named street in a specified city and county.53 And 
if the house is known by two numbers, and is as well known by one 
as by the other, it may be described in the complaint and warrant 
by either number.54 And the warrant is not invalidated by so mis- 
naming one street in the description of the place to be searched as to 
make the application of the whole description impossible, if in other 
respects the place is described truly, and so as to identify it with the 
place described in the complaint.55 The warrant sufficiently describes 
the premises by an averment that the house is occupied by the defend- 
ant and situated on the east side of Blake street (the house being in 
fact so occupied and situated east of Blake street, but not adjoining 
it,) although there be another house between that of the defendant 
and the street, and access to defendant's house be by an alley run- 
ning from the street past the other tenement.56 It has also been 
held that a description of the place to be searched, by giving the 
owner's name and the kind of liquors which he is believed to keep, 
will be sufficient.57 In the next place, as to outbuildings and appur- 
tenances of the house, it is generally considered that they must be 
mentioned in the warrant, in order to justify a search of them. Thus 
a warrant directing the officer to search a certain dwelling-house, 
described as "the premises" occupied by a certain person, will not 
authorize a forcible entry into a barn belonging to such person, 
adjoining the dwelling-house but not integrally a part of it.58 But a 
62 State v. Robinson, 49 Me. 285. 
63 Comm. v. Intoxicating Liquors, 150 
Mass. 164, 22 N. E. Rep. 628. 
84 Comm. v. Intoxicating Liquors, 6 
Allen, 596. 
88 Downing v. Porter, 8 Gray, 539. 
80State v. Minnehan, (Me.) 22 Atl. 
Rep. 177. The description is sufficient 
when the complaint alleges that intoxi- 
cating liquors are kept and deposited 
"in a certain wagon on the fair ground 
on the easterly side of Union Hall, in 
Searsport. " State v. Knowlton, 70 Me. 
200. But the following description- 
"at W., in a certain distillery there, sit- 
uate about one and one-half miles 
northeasterly from H. furnace"-is not 
sufficient. Comm. v. Intoxicating Liq- 
uors, 97 Mass. 334. The place of keep- 
ing the liquor may be described in one 
sentence in the complaint as a "cellar" 
and in another as " the above mentioned 
house." Comm. v. Intoxicating Liq- 
uors. 105 Mass. 181. 
67 State v. Thompson, 44 Iowa, 399. 
68 Jones v. Fletcher, 41 Me. 254. 
412 Ch. 15] 
§ 358 
SEARCH AND SEIZURE LAWS. 
designation of a certain dwelling-house and appurtenances, occupied 
by the defendant, is sufficient to authorize the officer to search an 
outbuilding on the same lot with the house and near to it, but sep- 
arated from it by an open space or passage-way, and occupied mainly 
as a wood-shed for the use of the house.69 Again, a warrant direct- 
ing the search of the dwelling-house of a person, authorizes the 
search only of the house occupied by him, and it is trespass if the 
officer searches a house owned by him but occupied by another.60 So 
a warrant to search premises "occupied by A.," and describing by 
metes and bounds a block of two dwelling-houses, separated by a 
partition-wall, and occupied one by A. and the other by B., and to 
seize certain liquors if "there" found, does not authorize a search of 
B.'s house.61 And a warrant to enter a building occupied by a per- 
son named, and seize liquors there kept by him, does not authorize a 
seizure of liquors in a closet in a tenement of another person in the 
same house, although the officer believes the closet is in the occupation 
of the first-named person.62 But a barrel of liquor belonging to A. 
may be seized in the room of B., although described as "in the house 
occupied by A.," if the faucet thereto passes through a partition into 
A's room.63 Finally, it is no objection to a search-warrant, under 
these statutes, that it directs the search of several different places. "A 
separate warrant for each suspected place to be searched is not called 
for, either by the letter or spirit of the constitution, nor requisite for 
the protection of the public peace or individual security. To require 
it wmuld occasion useless delay and expense, and tend to defeat the 
salutary objects of the law."64 
§ 358. Description of Liquors to be Seized. 
It is also required, either by the constitution or the statute, that 
the search-warrant shall describe, as nearly as may be, the particu- 
59 State v. Burke, 66 Me. 127. See, 
also, State v. Liquor, 38 Vt. 387; Low- 
rey v. Gridley. 30 Conn. 450; Comm. v. 
Intoxicating Liquors, 146 Mass. 509, 16 
N. E. Rep. 298. 
60McGlinchy v. Barrows, 41 Me. 74. 
61 Flaherty v. Longley, 62 Me. 420. 
62Comm. v. Newton, 123 Mass. 420. 
63 Comm. v. Intoxicating Liquors, 105 
Mass. 381. 
64 Gray v. Davis, 27 Conn. 447. 
413 § 358 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
lar things to be seized. As regards the kind of liquor to be taken 
under the warrant, it is held sufficient to describe it as "certain spir- 
ituous and intoxicating liquors, to wit, rum, gin, brandy," etc.65 And 
the fact that some of the kinds of liquor specified are not found at 
all, will not invalidate the seizure of those kinds which are found.66 
The form of description commonly employed in these warrants is, "a 
certain quantity of rum," or some other specified kind of liquor, or 
several kinds, "being about and not exceeding one hundred gallons," 
or some other specified quantity, "contained in certain barrels, kegs, 
jugs, jars, bottles, decanters, and other vessels." And this form is 
adjudged good and sufficient.67 Of course the officer is not bound to 
find the entire quantity mentioned in the warrant. For example, 
where the complaint and warrant described the liquors as certain 
quantities of rum, gin, brandy, whisky, strong beer, ale, and wine, 
"being about and not exceeding 500 gallons each," and the officer's 
return certified that he had seized "the liquors described in the 
within warrant, to wit, about 125 gallons of whisky, about 49 gallons 
of gin, about 57 gallons of rum, and about 12 gallons of wine," it 
was held that the variation between the quantities set forth in the 
warrant and those named in the return was not a sufficient cause for 
dismissing the complaint.68 The converse case would present a more 
difficult question; namely, would the officer be justified in seizing a 
larger quantity of liquor than that specified in the warrant ? If the 
warrant described the property as "not exceeding" a certain quan- 
tity, we apprehend that these terms would operate as a limitation on 
the officer's power. But in a case in Connecticut, where the com- 
plaint and warrant described a certain quantity of spirituous liquor 
"to wit, ten gallons of brandy, ten gallons of rum," etc., and the offi- 
cer seized a hogshead containing thirty gallons of rum and a barrel 
containing eight gallons of rum, it was held that the specification of 
the quantities of the liquors under the videlicet was intended as a 
description of them, and not to limit their quantities, and that the 
65State v. Whisky, etc., 54 N. H. 164. 
66 Comm. v. Intoxicating Liquors. 13 
Allen, 52. 
67 In re Horgan's Liquors, 16 R. I. 
542, 18 Atl. Rep. 279; State v. Fitz- 
Patrick, 16 R. I. 54, 11 Atl. Rep. 773; 
Downing v. Porter, 8 Gray, 539. 
68 Comm. v. Intoxicating Liquors, 97 
Mass. 63. See, also, Comm. v. Intoxi- 
cating Liquors, 13 Allen, 52. 
414 § 359 
Ch. 15] 
SEARCH AND SEIZURE LAWS. 
authority of the officer was not limited to the quantity named in the 
warrant.69 But it may be otherwise as to the kinds of liquor to be 
seized. If the warrant directs the seizure of "certain intoxicating 
liquors," and then, under a videlicet, specifies certain particular kinds, 
the officer will not be justified in seizing any other kinds than those 
specified; for here the videlicet limits the general expression preced- 
ing it by what follows.70 
§ 359. Execution of Warrant. 
A warrant to search for and seize intoxicating liquors, issued under 
the statute in that behalf, may be executed in the night-time. At 
common law, it will be remembered, a search-warrant was always 
directed to be executed by day, and it was doubtful whether it could 
be executed at night, even in the absence of any limitation as to time 
in the direction. But this kind of search-w7arrant is not a common 
law warrant, but is entirely governed by the statute. And inferences 
drawn from the statute, as well as the fact that it does not prescribe 
any time for executing the warrant, show that it may well be exe- 
cuted at night.71 As to the power of the officer to use force for the 
purpose of effecting an entry to the suspected premises, it is proba- 
ble that this species of process should be regarded as criminal in its 
nature, so as to justify the officer in breaking outer doors, after 
demand and refusal of admission. And in one case, when an officer, 
acting under a warrant which directed him to search the plaintiff's sta- 
tion-house for certain liquors alleged to be unlawfully stored there, 
coming to the building after the usual time for closing it, and finding 
no person of whom he could demand admission, entered by force and 
took away the liquors, it was held that such entry was justifiable.72 
Such warrant may be served by a constable, authorized by the gen- 
eral law to serve such process, although no direction is given to him 
in the warrant, but is given to other officers, and it may be amended 
69 State v. Brennan's Liquors, 25 
Conn. 278. 
70 Mallet v. Stevenson, 26 Conn. 428. 
71 Comm. v. Hinds, 145 Mass. 182,13 
N. E. Rep. 397. 
72 Androscoggin R. Co. v. Richards, 
41 Me. 233. 
415 § 360 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
by inserting such direction at anytime before final judgment.73 The 
person found in the possession of the liquors, and intending unlaw- 
fully to sell the same, may, if it be so alleged, be arrested.74 The 
officer who arrests a person in the act of illegally transporting liquors 
in a wagon, (under a statute authorizing such arrest in those circum- 
stances,) may detain the wagon and horses for such time as is rea- 
sonably necessary to remove the liquors from the wagon; and he is 
not bound to seek out the owner of the horses and wagon and restore 
them to him, even if not privy to such transportation; and he may 
remove them from the travelled part of the highway to prevent an 
obstruction thereof; and he may take them into his own barn for the 
purpose of saving the horses from suffering, until called for by the 
owner.75 
§ 360. What Property may be Seized. 
An officer acting under a warrant duly issued to search for intoxi- 
cating liquors, cannot lawfully seize liquors not described in the war- 
rant; if he does, he is liable to an action by the owner thereof.76 But 
where the warrant, after describing the liquors to be seized, added 
that they were "owned or kept by the said G., and intended by him 
to be sold in violation of the act," it was held that this language was 
merely that of averment, and not of description, and that it was there- 
fore not essential to the justification of the officer serving the war- 
rant that the liquors seized should in fact be owned or kept by the 
person named.77 And the seizure is not avoided by the fact that some 
liquor was seized which was not intoxicating.78 As to the power of 
the officer to seize a greater or less quantity of liquor than that spec- 
ified in the warrant, the reader is referred to a previous section, where 
the question was examined.79 Under the law in Maine, it has been 
held that the casks or vessels containing the liquor are not subject to 
seizure, and the officer is liable if he takes them.80 But, if this decis- 
78 State v. Hall, 78 Me. 37, 2 Atl. Rep. 
546. 
74 State v. Dunphy, 79 Me. 104, 8 Atl. 
Rep. 344. 
76 Jones v. Root, 6 Gray, 435. 
76 Arthur v. Flanders, 10 Gray, 107. 
77 Gray v. Davis, 27 Conn. 447. 
78 Comm. v. Intoxicating Liquors, 113 
Mass. 13. 
79 Supra, § 358. 
80 Black v. McGilvery, 38 Me. 287. 
416 § 361 
Ch. 15] 
SEARCH AND SEIZURE LAWS. 
ion was right, it would frequently subject the officer to a most embar- 
rassing dilemma; and it is obvious that the law should not be so con- 
strued if a fair reading of its terms will permit any other interpre- 
tation. A seizure of liquors upon a complaint for keeping the same 
connot be sustained where the proof shows that the liquors were 
seized while being transported, when another and distinct statute 
provides for a seizure while in transit.81 
§361. Officer's Return to Warrant. 
An officer's return upon a search-warrant should show that the 
liquors seized were the same liquors described in the warrant. This 
is sufficiently done by a return in the following words: "By virtue of 
this warrant, I have seized the following described liquors," describ- 
ing them as in the warrant.82 The return should also show that the 
place searched was the identical place to which the warrant directed 
him. But it is not necessary to copy the description into the return. 
If the tenement is explicitly described in the complaint and warrant, 
the officer may return that he searched the "within described prem- 
ises" and seized the liquor therein.83. By the provisions of the stat- 
utes in some of the states, if the officer is prevented from seizing the 
liquors by their being destroyed, he may arrest the keeper. In that 
case, he must make return on the warrant of his being so prevented, 
and how, and as near as may be the quantity destroyed; and if there 
is any uncertainty in the return, as to the kind and quantity of the liq- 
uor, it cannot be objected to by the person who, by his violence, 
prevented the officer from seizing it.84 Officers' returns upon these 
warrants are admissible as part of the records of judgments; and the 
inventory therein is conclusive until the contrary appears; the prin- 
ciple followed in replevin applies.85 Parol evidence as to the date of 
the seizure is admissible to sustain the complaint, but not to contra- 
dict the return.86 
81 State v. Roach, 74 Me. 562. 
82 State v. Hall, 81 Me. 34,16 Atl. Rep. 
329. 
83 Comm. v. Intoxicating Liquors, 6 
Allen, 596. 
84 State v. Stevens, 47 Me. 357. 
86 State v. Lang, 63 Me. 215. See State 
v. Howley, 65 Me. 100. 
86 State v. McCann, 59 Me. 383. 
INTOX.LIQ. 27 
417 § 363 
[Ch. 15 
LAW OF INTOXICATING LIQUORS. 
§ 362. Status of Property under Seizure. 
It is said, in Vermont, that intoxicating liquor, seized and con- 
demned according to law, is without rights, and that a claimant of 
such liquor is not entitled to a trial by jury.87 This is perhaps going 
further than either the nature of the subject or the adjudications 
would fully warrant. And while the statutes provide a summary 
mode of trial in the first instance, they almost invariably allow an 
appeal to a court where a jury is called. But the property, in the 
interval between its seizure and the final judgment, is regarded as 
in the custody of the law. And hence it cannot be taken from the 
possession of the officer by proceedings in replevin.88 And if such 
proceedings were commenced, the officer would have no authority to 
consent to an entry of judgment on the plaintiff's payment of costs.89 
So where the jurisdiction of a state court has attached to certain 
liquors seized by an officer of that court, by virtue of process under 
the prohibitory liquor law of the state, such officer cannot be, by a 
federal court, attached for contempt for refusing to obey the com- 
mand of a writ of replevin issuing out of the federal court.90 In the 
keeping of the liquor seized, the officer is only bound to exercise such 
a degree of care and diligence as prudent men use in the care of 
their own goods; and the use of such care is sufficiently alleged by 
an averment that they were kept in a safe, suitable, and proper 
place.91 
§ 363. Arrest or Seizure without Warrant. 
Unless authorized by a statute, an officer cannot justify entering a 
building and seizing intoxicating liquors and the vessels containing 
the same, which were illegally kept by the owner thereof, unless he 
had and acted under a warrant.92 But the statutes in many of the 
states empower an officer to seize such liquor whenever found by him 
under circumstances which would have justified his search for and 
87 State v. Smith, 55 Vt. 82. 
88 Funk v. Israel. 5 Iowa, 438. 
89 Fries v. Porch, 49 Iowa, 351. 
90 Senior v. Pierce, 31 Fed. Rep. 625. 
91 Perkins v. Gibbs, 29 Vt. 343. 
92 Reed v. Adams, 2 Allen, 413. 
418 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 363 
seizure of it if armed with a warrant, and also authorize him, with- 
out a warrant, to arrest any person found in the act of illegally trans- 
porting liquor in the state. But having so acted, he must then, 
according to the statutes, proceed within a reasonable time to pro- 
cure a warrant, to retroactively justify the arrest or seizure. If he 
neglects to do this, he becomes liable as a trespasser.93 When no 
sufficient reason is given for a longer delay, the time which elapses 
before he procures a warrant should not exceed twenty-four hours.94 
When the officer has so seized liquors illegally kept, he must make a 
complaint and take out a warrant in the regular mode prescribed by the 
statute. But as the liquors are now in his own custody, the complaint 
should allege that they were unlawfully kept and deposited in the place 
when and where the officer found them, and that they were then and 
there intended for sale in violation of law. And upon obtaining the 
warrant, he is to seize the liquors nunc pro tunc, and make his return 
thereon that the liquors were seized on such warrant.95 It is not nec- 
essary, to justify the arrest of a person without a warrant, for ille- 
gally transporting liquors, to prove that a warrant was afterwards 
procured against the liquors seized at the same time.96 And in an 
action against the officer for making such an arrest, the warrant 
obtained the next day, and the complaint on which it was issued, are 
admissible in evidence for the officer; and so also are declarations 
of the plaintiff, made the day before the arrest, tending to show that 
he was, at the time of the arrest, actually so transporting such liquor, 
although such declarations were not known to the officer when he 
made the arrest.97 It is held that an officer cannot justify an arrest 
without a warrant, on this ground, without showing that he had rea- 
sonable proof at the time of the arrest that the person was illegally 
transporting the liquors; and it is not sufficient that the officer acted 
in good faith and had reasonable cause to suspect that such was the 
case.98 And a conviction before a justice of the peace, upon a com- 
plaint for illegally transporting liquors, from which an appeal has 
93 Kent v. Willey, 11 Gray, 368. 
84 Weston v. Carr, 71 Me. 356., 
85 State v. Dunphy, 79 Me. 104, 8 Atl. 
Rep. 344. 
86 Kennedy v. Favor, 14 Gray, 200. 
87 Mason v. Lothrop, 7 Gray, 354. 
88 Kennedy v. Favor, 14 Gray, 200. 
419 § 364 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
been taken, is not sufficient evidence of probable cause to believe that 
the defendant was so transporting the liquors, to justify the previous 
arrest of the defendant and seizure of the liquors by an officer with- 
out a warrant." 
§ 364. Notice to Claimants. 
The liquor having been seized by the officer and his return made, 
the next step in the proceedings is to give notice of the hearing to the 
person from whose possession the liquor was taken and to claimants 
generally. This notice, being provided for by the statute, is essential 
to the validity of all further proceedings. But the omission of it will 
not invalidate the previous steps; it will not make the prior act of 
seizing the liquors a trespass.100 And one who appears as a claim- 
ant of the liquors cannot object that no notice has been given to oth- 
ers.101 The recitals of the notice should of course be sufficiently 
accurate to impart to the claimant beyond a reasonable doubt all the 
information to which he is entitled. But it is held that a recital that 
the seizure was made under a warrant issued by a district court, 
when in fact it was made under a warrant issued by a special justice 
thereof, does not invalidate the proceedings.102 The notice is required 
to specify the liquors seized and the place where they were found, so 
as to clearly identify them, in order that persons interested may be 
duly informed of the proceedings against their property and have an 
opportunity to appear and defend their rights. But it does not appear 
that the same particularity of description is requisite as in the com- 
plaint and warrant. Thus, where the notice specified the place where 
the liquor was seized as "a certain building occupied by A., in said 
town," on a day named, and it did not appear that A. occupied any 
other building, it was held, after A. had entered a general appear- 
ance, that the notice was sufficient.103 In Massachusetts, the law 
99 Mason v. Lothrop, 7 Gray, 354. 
io° Voetsch v. Phelps, 112 Mass. 407. 
101 Comm. v. Intoxicating Liquors, 6 
Allen, 596. And one appealing as claim- 
ant of liquors which have been seized 
cannot object to defects in the moni- 
tion and notice. State v. Miller, 48 Me. 
576; State v. Brennan's Liquors, 25 
Conn. 278. 
102 Comm. v. Intoxicating Liquors, 128 
Mass. 72. 
103 Comm. v. Intoxicating Liquors, 146 
Mass. 509. 16 N. E. Rep. 298. See, also. 
Same v. Same, 6 Allen, 599. 
420 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 365 
requires that notice shall be given to the keeper or claimant of the 
seized liquors within twenty-four hours after the seizure. This time, 
it is ruled, is exclusive of Sunday.104 And where various original 
documents in the case show clearly that such notice was issued within 
the time limited, an error in the record of the court, by which a later 
date is inserted as the time of issuing the notice, is immaterial.105 
§ 365. Jurisdiction and Procedure. 
A magistrate who issues a warrant for the seizure of liquors has 
jurisdiction if the liquors seized correspond to those described in the 
complaint in respect to the kinds of liquors found, and are within 
the quantities named.106 And as these proceedings are criminal in 
their nature, the jurisdiction of the justice is not affected by the 
value of the liquors to be seized.107 But as the proceedings, in the 
first instance, are before a court of limited or inferior jurisdiction, 
the facts essential to its jurisdiction must appear on the face of the 
proceedings, otherwise there will be no presumption in favor of the 
jurisdiction.108 But neither the jurisdiction of the court nor the 
validity of the proceedings is affected by the omission to summon 
the complainants as witnesses as directed by the statute.109 In one 
state the law provides that the officer making a seizure of liquors 
"shall forthwith proceed to prosecute for the forfeiture thereof in the 
manner provided by law." But it is held that this clause is direct- 
ory merely, and that the neglect of an officer to prosecute speedily 
does not exempt liquors from forfeiture which were kept for sale in 
violation of law; the forfeiture depends upon the breach of the law, 
and not upon the diligence of the officer.110 Upon the proper notices. 
104 Comm. v. Intoxicating Liquors, 97 
Mass. 601. The court observed: "Sun- 
day is not ordinarily to be reckoned in 
computing the time within which an act 
is to be done, where the time limited is 
less than a week. " 
105 Comm. v. Intoxicating Liquors, 4 
Allen, 593. 
106 Comm. v. Intoxicating Liquors, 13 
Allen, 561. 
307 State v. Arlen, 71 Iowa, 216, 32 N. 
W. Rep. 267, expressing disapproval of 
Sullivan v. Oneida, 61 Ill. 242. 
108 See Jones v. Fletcher, 41 Me. 254; 
Guptill v. Richardson. 62 Me. 257; State 
v. Intoxicating Liquors, 80 Me. 91, 13 
Atl. Rep. 403. 
109 Comm. v. Intoxicating Liquors, 108 
Mass. 290. 
110 In re Liquors of Hoxie, 15 R. I. 241, 
3 Atl. Rep. 1. 
421 § 365 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
being given, any person claiming the liquor in question may be made 
a party to the proceedings; and the court may require security for 
costs, as the terms of a claimant's being admitted as a party.111 
When liquors are seized upon a warrant and their keeper arrested at 
the same time, both must be brought by the officer before the mag- 
istrate who issued the warrant; but from that time the proceedings 
as to each, the trial and judgment, are separate and distinct as in 
two cases; and in case of an appeal, they are to be entered and 
tried in the appellate court as two cases.112 The jury are to pass 
upon the status of the res, as liable or not liable to forfeiture. But 
when the liquors are described in the same way in the complaint, 
the warrant, and the officer's return, it is immaterial whether the 
issue to the jury is, whether the whole or any part of the liquors 
described in the complaint were kept for unlawful sale, or whether 
the whole or any part of the liquors actually seized were so kept.113 
A general verdict of guilty or not guilty, without any special 
findings, is all that is usual or necessary in prosecutions for 
keeping liquors for illegal sale.114 The ground of condemnation of 
the liquors seized must be sought in the statute. Where, however, 
the act denounces the keeping of liquor for illegal "sale or distribu- 
tion," an officer can seize property for either of the alternative causes, 
(both being named in the complaint,) and the court may condemn 
for either, as the case presents itself to them on proof.115 As to the 
costs in these cases,-under a statute providing that when liquor is 
taken on a search-warrant, and no one is made defendant, the costs 
shall be paid as in criminal cases where the prosecution fails, a jus- 
tice issuing such process can recover fees therefor against the county, 
although no liquors were found.116 And so, in the same circumstan- 
ces, the officer earns his fee by making the search, though he finds 
nothing to seize.117 The statutes commonly provide for summary 
proceedings before a magistrate or inferior court, in the first instance, 
but allow an appeal to a court where a jury is called. In this con- 
111 State v. Pecker, 47 N. H. 369. 
112 State v. Miller, 48 Me. 576. 
113 Comm. v. Intoxicating Liquors, 6 
Allen, 596. 
114 State v. Nowlan, 64 Me. 581. 
116 State v. Liquor, 38 Vt. 387. 
116 Garrett v. Polk County, 78 Iowa, 
108, 42 N. W. Rep. 618. 
117 Byram v. Polk County, 76 Iowa, 75, 
40 N. W. Rep. 102. 
422 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 366 
nection, it is only necessary to remark that the right of appeal must 
not be clogged with too burdensome or oppressive conditions, or else 
it will amount to a practical denial of the right of trial by jury, in 
contravention of the constitutional guaranty. If, for example, the 
condition is that the appellant shall enter into a recognizance, the 
amount demanded must not be excessive.118 
§ 366. Evidence. 
There can be no judgment of forfeiture of the liquors seized with- 
out proof of the allegations of the complaint.119 But it is enough for 
the prosecution to have made out a prima facie case, if there is no 
evidence in defense.120 Taking up the several facts necessary to be 
established in order to make out a case, we find, in the first place, 
that the allegation of the place where the liquors are alleged to be 
kept, in the complaint, is a material and traversable allegation, and 
the claimant has a right to require proof of it, and to have the issue 
submitted to the jury.121 In the next place, it is necessary to show 
the intoxicating character of the liquor seized. But where the stat- 
ute provides that all liquor shall be deemed intoxicating which con- 
tains more than a certain proportion of alcohol, it is only neces- 
sary to prove that the liquor seized is within the statute, not that it 
is actually intoxicating. Hence evidence is admissible to show the 
amount of alcohol contained in the liquor in controversy.122 The 
intoxicating properties of the article may also be proved by witnesses, 
relating their observation of its appearance, taste, and odor, the kind 
of vessels in which it was contained, the labels or marks on such 
vessels, the presence of men engaged in drinking, the presence of 
the paraphernalia of a bar-room, and other pertinent facts.123 Next, 
118 In re Liquors of McSoley, 15 R. I. 
608, 10 Atl. Rep. 659. 
119 Comm. v. Intoxicating Liquors, 113 
Mass. 23. 
120 State v. Intoxicating Liquors, 58 
Vt. 594, 4 Atl. Rep. 229. 
121 Comm. v. Intoxicating Liquors, 117 
Mass. 427. Where the sheriff testified 
that he searched the "American Hotel 
premises, " it was held that the jury had 
a right to understand that he searched 
the American Hotel premises in the 
town of B., which were described in the 
papers which he testified to having 
served. State v. Liquor, 38 Vt. 387. 
122 State v. McKenna, 16 R. I. 398, 17 
Atl. Rep. 51. 
123 State v. Liquor, 38 Vt. 387. 
423 § 366 
LAW OF INTOXICATING LIQUORS. 
[Ch. 15 
it is necessary to substantiate the allegation of an intent to sell con- 
trary to law. And this,-since the proceeding is criminal in its 
nature,-must be proved beyond a reasonable doubt.124 In relation 
to this fact, evidence is admissible of sales, made both before and 
after the seizure, of liquors of the same kind or of a different kind 
from those seized.125 And so also is evidence admissible that pack- 
ages, apparently of liquors, were received at the railroad station of 
the town, consigned to the person charged with keeping the liquors 
for sale, although there was no proof that they were actually deliv- 
ered to him; a failure to prove that the packages contained intoxi- 
cating liquors would only go to the weight of the evidence.128 The 
fact that "many people have been seen going to and coming from 
and waiting outside of the house for said B. to come, with bottles 
in their hands," is a ground for issuing the warrant; but the mere 
fact that the place contains bottles partly full of liquor is not 
enough.127 It must also be proved on the trial that the liquors were 
intended for sale in the city or town in which they were kept or 
deposited.128 It will be sufficient to authorize a forfeiture of the liq- 
uors if it be shown that they were kept with intent to sell them con- 
trary to law, although it is not alleged or proved by whom the inten- 
tion was entertained. But the person charged as thus keeping liq- 
uors cannot be convicted unless it be alleged and proved that the 
liquors were by him, unlawfully deposited, or intended for sale in vio- 
lation of law.129 The complaint may be maintained, though founded 
on evidence obtained by means of former proceedings, instituted for 
the purpose of gaining possession of the building in which the liq- 
124 Comm. v. Intoxicating Liquors, 115 
Mass. 142. 
126 State v. Mead's Liquors, 46 Conn. 
22. 
126State v. Mead's Liquors, 46 Conn. 
22. 
127 Comm. v. Intoxicating Liquors, 105 
Mass. 595. 
128State v. Gurney, 33 Me. 527; State 
v. Robinson, Id. 564. 
129 State v. Learned, 47 Me. 426. In 
an action for the forfeiture and seizure 
of certain intoxicating liquors, declara- 
tions as to their ownership, made by 
a claimant in whose possession they 
were found, are admissible in evidence. 
In re Horgan's Liquors, 16 R. I. 542. 18 
Atl. Rep. 279. When a prohibitory 
statute condemns premises used for the 
manufacture of liquor as a nuisance, 
and authorizes the seizure of all prop- 
erty found thereon, the question of the 
ownership of such property becomes 
immaterial. Pearson v. International 
Distillery, 72 Iowa, 348, 34 N. W. Rep. 1. 
424 Ch. 15] 
SEARCH AND SEIZURE LAWS. 
§ 367 
uors were kept, and without any actual knowledge on the part of the 
complainants in the former proceedings as to the liquors or the ves- 
sels containing them.130 In proceedings under these statutes, it is 
also held that the original complaint and warrant are admissible in 
evidence.131 But when the warrant, besides directing the seizure of 
the liquors, authorizes the arrest of the keeper, when such liquors 
are found, the fact that the liquors have been found is to be proved 
by competent evidence under oath, and not by the return of the offi- 
cer.132 
§ 367. Rights of Claimant. 
If it is adjudged that the liquors were not liable to seizure and 
forfeiture, it is the right of the claimant to have them returned to 
him. And also, where the statute provides for a return of the liq- 
uors seized "if it is not proved" that they were kept for illegal sale, 
this is held to apply to cases where the proceedings are quashed for 
defects in matters of form.133 It is not necessary that the claimant 
should set forth in his claim the person from whom, the place where, 
or the time when, the liquors were purchased by him. The fact of 
ownership constitutes the foundation of his claim, and the right to 
possession rests in such ownership, with no intention to keep or sell 
the same in violation of law.134 A package of liquor sent "C. 0. D.," 
and seized by an officer from the express company before delivery to 
the buyer, may be reclaimed by the buyer from the state, if not lia- 
able to confiscation, no other party making a claim.135 
130 Comm. v. Intoxicating Liquors, 4 
Allen, 593. 
131 State v. Bartlett, 47 Me. 396. 
132 State v. Stevens, 47 Me. 357. 
133 Comm. v. Intoxicating Liquors, 103 
Mass. 454. 
134 State v. Intoxicating Liquors, 69 
Me. 524. 
135 State v. Intoxicating Liquors, 73 
Me. 278. 
425 § 368 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
CHAPTER XVI. 
CRIMINAL RESPONSIBILITY UNDER THE LIQUOR LAWS. 
§ 368. Responsibility of Master for Acts of Servant or Agent. 
369. Unauthorized Sales by Servant or Agent. 
370. Statutory Liability for Unauthorized Sales. 
371. Proof of Complicity of Master. 
372. Personal Liability of Servant or Agent. 
373. Several Liability of Master and Servant. 
374. Responsibility of Husband for Sales by Wife. 
375. Personal Liability of Wife. 
376. Husband and Wife Jointly Liable. 
377. Liability of Partners. 
378. Joint Liability. 
379. Sales by Children. 
380. Persons Aiding and Abetting. 
381. Purchaser not Guilty of an Offense. 
382. Liability of Owner or Lessor of Premises. 
§ 368. Responsibility of Master for Acts of Servant or 
Agent. 
It is a recognized principle of criminal law that a master is respon- 
sible for the criminal acts of his servant or agent done within the 
scope of the latter's general employment, or in the course of the 
general business authorized by the master, unless shown to be done 
without the knowledge and consent, or against the orders, of the 
master; and that the master is answerable for such acts done by the 
servant or agent, whether in or out of his proper and usual employ- 
ment, when done by the master's command, or with his knowledge 
and consent. Statutes enacted in various states, in relation to the 
liquor traffic, have modified this principle in such wise as to make 
the employer liable to criminal prosecution for the illegal acts of his 
servant or agent in certain cases where he would not have been lia- 
ble at common law. But when such laws are not in force, or in cases 
to which they do not apply, the rule in prosecutions for illegally sell- 
ing liquor, and similar offenses, is as above stated. Thus, in rela- 
tion to acts done in the general scope of the servant's employment, 
426 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 368 
it is said, in Vermont, that in order to constitute one a dealer in 
spirituous liquors, so as to subject him to the penalty imposed by the 
statute in that behalf, it is not necessary that he should actually do 
the business in person, or even that it should be done in his presence, 
or by his express command. If he keeps liquors, and employs clerks 
to deal them out in common with other commodities, he is equally as 
liable for sales made by such clerks as if made by him in person? 
But on the other hand, a principal is not liable for the sale of liquor 
on Sunday by an agent employed by him on week-days, without proof 
of knowledge by him of the unlawful acts charged on Sunday, and 
without proof of authority, express or implied, to act as agent on 
Sunday.2 And so it is held that a master is not responsible for an 
illegal sale of liquor to a minor by his clerk under an honest mistake 
as to the buyer's age, if he directed him not to make such sales, 
though he may have authorized him to determine the age of cus- 
tomers from their appearance only.3 But if the whole course of the 
master's business is unlawful,-as if he keeps liquor for sale without 
a license,-he is responsible for any sales made by his clerks or serv- 
ants, whether or not he knew of the particular sale or consented 
thereto, and no matter what his instructions to them may have been. 
For his employment of a person to aid or serve him in an illicit busi- 
ness is a direction or authority to that person to do the unlawful act 
1 State v. Dow, 21 Vt. 484. 
2 State v. Burke, 15 R. I. 324, 4 Atl. 
Rep. 761. Compare Martin v. State, 
(Nebr.) 46 N. W. Rep. 621. 
3Comm. v. Stevens, (Mass.) 26 N. E. 
Rep. 992. In this case it was said: "It 
does not appear to us necessary or rea- 
sonable to extend criminal respon- 
sibility for the act of a servant so far as 
to include a case like the present. The 
servant himself is no doubt responsible, 
because he has made a sale, however 
innocently, which the law forbade him 
to make. But if he reasonably and 
honestly believed the purchaser to be 
of adult age, and that the sale might 
lawfully be made, his statutory guilt 
should not be imputed to the defend- 
ant. Though the defendant would 
have been responsible for his own mis- 
take, if the sale to the minor had been 
made by him, it seems to us to be car- 
rying the doctrine of criminal respon- 
sibility for the act of another quite too 
far to convict him by reason of an hon- 
est mistake on the part of his clerk, 
provided the jury should find that the 
master sincerely and honestly intended 
that his instructions should be followed 
in good faith, and that he was not neg- 
ligent or careless in the selection of 
his clerks, or in the regulations and 
precautions which he prescribed for 
their guidance. See Mullins v. Collins, 
L. R. 9 Q. B. 292, per Quain, J., and 
also per Blackburn, J. " 
427 § 369 
[Ch. 16 
LAW OF INTOXICATING LIQUORS. 
in his behalf.4 In the next place, if the servant or agent make a sale 
of liquor in violation of law by the direction of the principal, or with 
the knowledge and consent of the principal, the latter may be pros- 
ecuted and punished for the act.6 The mere fact that the principal 
was present when the sale was made would perhaps not be sufficient, 
of itself alone, to show conclusively his knowledge and consent. But 
it would authorize a presumption thereof. For he is supposed to be 
cognizant of vhat passes before him, and his omission to interfere, 
as master, and forbid the sale, is a species of tacit assent.6 Further, 
it is to be remarked that a general authority by an employer to his 
clerk to sell unlawfully will render him responsible criminally for 
any single sale made by the clerk in pursuance of such authority.7 
§ 369. Unauthorized Sales by Servant or Agent. 
At common law, and unless a different rule is established by the 
local statute, a master is not responsible criminally for a violation 
of the liquor laws committed by his clerk, servant, or agent, without 
his knowledge or consent, express or implied, or in his absence and 
in disregard of his commands or instructions.8 Hence, in a prosecu- 
tion against the principal, where the evidence shows that the sale 
was made by an agent in charge of the establishment, it is compe- 
tent for the defendant to rebut the presumption of authorization 
raised against him, by showing that the sale was in fact made with- 
4Noecker v. People, 91 Ill. 494; State 
v. Keith, 37 Ark. 96; Johnson v. State, 
Id. 98; Lane v. State, Id. 272. 
6 State v. Skinner, 34 Kans. 256, 8 
Pac. Rep 420; State v. Wiggin. 20 N. 
H. 449; Zeigler v. Comm., (Pa. Sup.) 14 
Atl. Rep. 237; Comm. v. Major, 6 Dana, 
293. 
6 Johnson v. State. 83 Ga. 553,10 S. E. 
Rep. 207; Hofner v. State, 94 Ind. 84; 
Forrester v. State, 63 Ga. 349. 
7Kinnebrew v. State, 80 Ga. 232, 5 S. 
E. Rep. 56. 
8 Comm. v. Putnam, 4 Gray, 16; John- 
son v. State, 83 Ga. 553, 10 S. E: Rep. 
207; Hipp v. State, 5 Blackf. 149; Wetz- 
ler v. State, 18 Ind. 35; Lauer v. State, 
24Ind. 131; O'Leary v. State, 44 Ind. 91; 
Hanson v. State, 43 Ind. 550; Thompson 
v. State, 45 Ind. 495; Lathrope v. State, 
51 Ind. 192; State v. Hayes, 67 Iowa, 27, 
24 N. W. Rep. 574; State v. McGrath, 73 
Mo. 181; State v. Reiley, 75 Mo. 521; 
State v. Shorten, 93 Mo. 123, 5 S. W. 
Rep. 691; People v. Parks, 49 Mich. 333, 
13 N. W. Rep. 618; People v. Hughes, 
(Mich.) 48 N. W. Rep 945; Gaiocchio v. 
State. 9 Tex. App. 387. Compare Dud- 
ley v. Sautbine, 49 Iowa, 650; People v. 
Blake, 52 Mich. 566, 18 N. W. Rep. 360; 
People v. Roby, 52 Mich. 577, 18 N. W. 
Rep. 365, 50 Am. Rep. 270. 
428 § 370 
Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
out his authority and against his directions.9 But where the defense 
is that the agent violated a direction or instruction requiring him not 
to make such sales, it must be shown that the order was given hon- 
estly and in good faith, and with the intention and expectation that 
it would be obeyed; and the question, whether or not the order was 
so given, is for the jury to determine.10 It is also a good defense to 
such a prosecution that the person who made the sale was not the 
clerk or agent of the defendant, or that he was acting beyond the 
terms of his general authority. Thus, it may be shown that the 
seller was not a clerk or bar-tender but a mere porter or menial serv- 
ant, who thus acted beyond the scope of his employment and in dis- 
obedience of the proprietor's orders.11 On the same principle, a 
criminal prosecution for unlawfully selling liquor after eleven o'clock 
at night, (that being forbidden by statute,) cannot be maintained on 
proof of a sale by a servant of defendant, without his leave and 
against his orders.12 
§ 370. Statutory Liability for Unauthorized Sales. 
It has been already mentioned that statutes enacted in several of 
the states have modified the common law rule as to the criminal 
responsibility of a master for the acts of h*is servant or agent, so as to 
make him answerable in cases where he could not be held to liability 
without such statutory provisions. Under these laws, it is held to 
be no defense to an indictment against the principal that the unlaw- 
9 Anderson v. State, 22 Ohio St. 305; 
Kirkwood v. Autenreith, 21 Mo. App. 
73. 
10 Comm. v. Rooks, 150 Mass. 59, 22 
N. E. Rep. 436; Comm. v. Stevens, 
(Mass.) 26 N. E. Rep. 992; State v. Went- 
worth, 65 Me. 234, 20 Am. Rep. 688. 
11 Minden v. Silverstein, 36 La. Ann. 
912. 
12 Comm. v. Wachendorf, 141 Mass. 
270. 4 N. E. Rep. 817. In this case, the 
prosecution was brought under a law 
that "no person shall sell ... in- 
toxicating liquors except as authorized 
in this chapter. " The court said that 
they could not infer that the legislature 
meant to include such a case as the 
present in this language. In cases 
where the master has been held respon- 
sible for the acts of the servant in dis- 
obedience of his orders, it has been un- 
der language much broader than this; 
e. g., "no sale of intoxicating liquors 
shall be made," etc., or "no licensee 
shall maintain, or permit to be main- 
tained, any screen," etc. But it seems 
that a sufficient ground for the decision 
would be that the servant here was act- 
ing outside the scope of his duties un- 
der his general employment. 
429 § 371 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
ful act was done without his knowledge or consent, or without his 
authority, or in his absence, or even that it was done in contravention 
of his express and buna fide orders.13 This rule is applied, for exam- 
ple, under a statute providing that any unlawful sale of liquor to a 
minor, by a clerk or other person acting for a dram-shop keeper, shall 
be deemed the act of the keeper himself.14 So under a statute which 
imposes a penalty upon any person who shall sell by himself or 
another.15 The same is the case under a statute providing that "no 
person or persons, by himself or another, shall sell, or cause to be 
sold, or furnished, or permit any other person or persons in his 
employ" to sell intoxicating liquors to minors.16 And so under a stat- 
ute subjecting to its penalty "any person who may own or have any 
interest in . . . liquor sold contrary to this act."17 And under 
laws of this kind, an allegation in the indictment that the liquor was 
sold by the defendant is sustained by proof that it was sold by his 
bar-keeper, and it is immaterial that the latter acted in violation of 
his instructions.18 The object of these statutory provisions, in effect, 
is to require the principal to see to it, at his peril, that no unlawful 
sales are made in his establishment. And if it savors of severity to 
subject him to punishment for the acts of others which he had 
expressly forbidden, it must be remembered that he can escape lia- 
bility by selecting servants and agents who will keep within the law 
and obey his orders, or by abandoning a business which exposes him 
to such hazards. 
§ 371. Proof of Complicity of Master. 
Where the evidence shows that the alleged unlawful sale of liquor 
was made in the defendant's shop or place of business by his servant 
13 Carroll v. State, 63 Md. 551, 3 Atl. 
Rep. 29; Boatright v. State, 77 Ga. 717; 
Riley v. State, 43 Miss. 397; Gathings 
v. State. 44 Miss. 343; McCutcheon v. 
People, 69 Ill. 601; State v. Durkem, 23 
Mo. App. 387; Greene County v. Wil- 
hite, 29 Mo. App. 459. 
14 State v. McGinnis, 38 Mo. App. 15. 
16 Cloud v. State, 36 Ark. 151; State 
v. Denoon, 31 W. Va. 122, 5 S. E. Rep. 
315. 
16 Snider v. State, 81 Ga. 753, 7 S. E. 
Rep. 631; Loeb v. State, 75 Ga. 258. 
17Fahey v. State, 62 Miss. 402; Teas- 
dale v. State, (Miss.) 3 South. Rep. 245; 
Mogler v. State, 47 Ark. 109, 14 S. W. 
Rep. 473. 
18 Draper v. Fitzgerald, 30 Mo. App. 
518. 
430 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 371 
or agent, this raises a presumption that the defendant authorized the 
sale, or knew of it and consented to it.19 Hence an instruction that 
^nothing to the contrary appearing, evidence of a sale by a servant 
in his master's shop of his master's goods there kept for sale would, 
if believed, warrant the jury in finding the sale was authorized by 
the master, and this would be so although the defendant was not on 
the premises at the time the sale was made," is not erroneous.20 
Such evidence having been given, it then becomes incumbent upon 
the principal to show that the sale was made, not only without his 
knowledge, but also without his consent, express or implied, in order to 
shield himself from punishment.21 And in rebuttal of his conten- 
tion in that behalf, it is proper for the prosecution to show his pres- 
ence at the time the sale was made, not as conclusively establishing 
his complicity, but as a fact from which the jury may infer his 
knowledge and consent. Thus, in a prosecution for keeping a saloon 
open on a holiday, if there is testimony tending to show that the 
saloon was open, that defendant was the proprietor of it, and that he 
was about the building at the time, although a bar-keeper was in 
charge, there is enough to go to a jury.22 And all that is necessary 
to be proven is the knowledge and consent of the defendant in the 
particular instance in controversy, and the state cannot be required 
to show his knowledge of and consent to the general violation of the 
law by the servant or agent.23 And conversely, evidence of previous 
general instructions by defendant to his servant not to dispense 
19 State v. Wentworth, 65 Me. 234, 20 
Am. Rep. 688; Comm. v. Nichols, 10 
Mete. (Mass.) 259, 43 Am. Dec. 432; 
Comm. v. Perry, 148 Mass. 160,19 N. E. 
Rep. 212; Fullwood v. State, 67 Miss. 
554, 7 South. Rep. 432; Molihan v. State, 
30 Ind. 266. Compare Comm. v. Bri- 
ant, 142 Mass. 463, 8 N. E. Rep. 338; 
Comm. v. Stevenson, 142 Mass. 466, 8 
N. E. Rep. 341. In State v. Mahoney, 
23 Minn. 181, it was said that a single 
sale of liquor to an habitual drunkard, 
made by a clerk of defendant in his 
absence, is not sufficient to raise a pre- 
sumption of an authority, from the de- 
fendant to the clerk, to make the sale. 
The presumption from a clerk being 
employed at the saloon would be that 
he had authority from the defendant to 
make such sales as were lawful. 
20 Comm. v. Houle, 147 Mass. 380, 17 
N. E. Rep. 896. 
21 Klug v. State, 77 Ga. 734. Compare 
Comm. v. Hayes, 145 Mass. 289, 14 N. 
E. Rep. 151. And see People v. Utter, 
44 Barb. 170. 
22People v. Baumann, 52 Mich. 584, 
18 N. W. Rep. 369; Comm. v. Rooks, 
150 Mass. 59, 22 N. E. Rep. 436. 
23 Comm. v. Rooks, 150 Mass. 59, 23 
N. E. Rep. 436. 
431 § 372 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
liquor unlawfully is immaterial, where it is admitted, or'conclusively 
appears, that the particular sale charged was made with his knowl- 
edge and approval.24 Whether the facts show knowledge on the part 
of the owner, of sales made by his clerk or bar-keeper, is a question 
alone for the jury.25 But as the defendant would not be responsible 
for the acts of a person not in his employment, or not connected with 
his business, or having no authority from him, it is necessary to 
produce evidence to show the relation of master and servant, or that 
of principal and agent, between the defendantand the salesman. And 
it has been ruled that where the testimony merely shows that the 
liquor was sold in a saloon of which defendant was the proprietor, 
and that the sale was made by a person who was at the time behind 
the bar or counter, acting as bar-keeper, but does not show that such 
person was the agent or employe of defendant, or that the defendant 
was present or had any knowledge of the sale, the guilt of the defend- 
ant is not established.26 A conviction for keeping a liquor nuisance 
cannot be sustained on evidence that, in the absence of the defend- 
ant, a single sale of liquor was made on Sunday by a woman who 
was washing the floor of the saloon, there being no evidence that she 
was employed otherwise than as a char-woman, except that she was 
apparently the only one in charge of the premises at the time.27 
§ 372. Personal Liability of Servant or Agent. 
In prosecutions under the liquor laws, the question of the personal 
responsibility of a clerk or servant frequently arises in connection 
with sales made without the necessary license. And it appears that 
the following propositions may be deduced from the authorities. 
First, if the employer has a license, it is not necessary that the clerk 
or agent should be licensed, provided the sale was not otherwise 
unlawful; for the master's license protects the servant. That is, one 
who, as clerk or servant of another, sells liquor for the sale of which 
24 State v. Mueller, 38 Minn. 497, 38 N. 
W. Rep. 691. 
26 Neideiser v. State, 6 Baxt. 499. 
26 Anderson v. State, 39 Ind. 553; 
Wreidt v. State, 48 Ind. 579. Compare 
State v. Brown, 31 Me. 520. 
27 Comm. v. Hagan, (Mass.) 26 N. E. 
Rep. 95. 
432 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 372 
his employer is duly licensed, cannot be prosecuted for selling without 
himself having a license.28 Secondly, if the person who makes the 
sale holds a license, he cannot be indicted for an unlawful sale, 
although he acted only as the agent of another person, who owned 
the liquors, and who was not licensed. That is, a licensed dealer may 
sell his own or any other person's liquor without offense.29 Thirdly, if 
neither the principal nor the agent, master nor servant, holds a license, 
the agent or servant is personally punishable for making the unlaw- 
ful sale. That is, in such a prosecution, no license being shown in 
any one, it is no defense that the person indicted acted merely as the 
agent or employe of another.80 The ground of this rule is stated by 
the supreme court of Vermont as follows: "It is claimed that if the 
lespondent, in making the sale, acted gratuitously as the mere serv- 
ant of H., he would not be personally liable to indictment, though H. 
had no license. But we think this is not sound. If the respondent 
justify the act of selling under H. as his principal, he must show an 
authority in his principal to sell. The agent who does the act can 
stand in no better situation than his principal. He justifies under 
him, and if the principal had no authority to sell, the agent could 
have none."31 Further, as the statutes are framed, the intention, 
motives, or knowledge of the defendant do not enter into the case at 
all. One who enters the employment of a liquor-dealer as a clerk, 
agent, or bar-keeper, must ascertain for himself, at his own peril, 
whether the dealer has a license or not. If in fact there is no such 
28 State v. Hunt, 29 Kans. 762; State v. 
Keith, 37 Ark. 96; Johnson v. State, Id. 
98; Lane v. State, Id. 272. But in such 
case, the burden is on defendant to 
show as a defense that he acted, in 
making the sale, as the agent of a 
licensed dealer. Rana v. State, 51 Ark. 
481, 11 S. W. Rep. 692. 
29 State v. Keith, 37 Ark. 96; Johnson 
v. State, Id. 98. 
30 Wason v. Underhill, 2 N. H. 505; 
State v. Bugbee, 22 Vt. 32; Comm. v. 
Hadley, 11 Mete. (Mass.) 66; Comm'rs 
of Excise v. Dougherty, 55 Barb. 332; 
Abel v. State, (Ala.) 8 South. Rep. 760; 
Davidson v. State, 27 Tex. App. 262, 11 
S. W. Rep. 371; Baird v. State, 52 Ark. 
326, 12 S. W. Rep. 566; Rana v. State, 
51 Ark. 481, 11 S. W. Rep. 692; Berning 
v. State, 51 Ark. 550, 11 S. W. Rep. 882; 
State v. Keith, 37 Ark. 96; State v. 
Deevers, 38 Ark. 517; Cloud v. State, 
36 Ark. 151; State v. Kriechbaum, 
(Iowa,) 47 N. W. Rep. 872; Hays v. 
State, 13 Mo 246; State v. Bryant, 14 
Mo. 340; People v. Drennan, (Mich.) 49 
N. W. Rep. 215; State v. Chastain, 19 
Oreg. 176, 23 Pac. Rep. 963; 2 Wharton, 
Crim. Law, § 1504; Bishop, Stat. Crimes, 
§ 1024. 
31 State v. Bugbee, 22 Vt. 32. 
INTOX.LIQ. 28 
433 § 372 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
license, the salesman is guilty, irrespective of his actual state of 
knowledge.32 One who is liable as agent for selling without license, 
under a statute providing that all persons violating the act, whether as 
owner, or as clerk, agent, servant, or employe, shall be equally liable 
as principals, need not be indicted as agent, but may be simply as 
principal.33 
There are also numerous cases which hold that in prosecutions for 
other violations of the liquor laws, besides the offense of selling 
without license, it is not a valid defense that the prisoner acted 
merely as the servant or agent of another.34 But the better doctrine 
seems to require a limitation of this rule to three specific cases; 
viz., (1) where the defendant acted in disobedience of orders, or in 
the absence of his principal, and without the knowledge and consent 
of the latter, so that the principal would not be also liable for the 
same single act; (2) where the gist of the offense is the act or con- 
duct of the defendant, without reference to the ownership of the 
property; (3) where the offense complained of is one which may be 
participated in or contributed to by several persons, as where one 
opens or maintains a saloon as proprietor and another dispenses 
liquor therein; in such cases, both master and servant may be 
indictable. In accordance with these principles it is held that where 
the servant acts under the control and direction or in the presence 
of his employer, he is not personally answerable for the unlawful 
act.36 But a servant may be convicted of keeping and maintaining 
a saloon if, in the absence of the proprietor, he makes illegal sales 
82 State v. Chastain, 19 Oreg. 176, 23 
Pac. Rep. 963. In this case it was said: 
"As statutes of this character bind the 
party to know the facts and to keep 
them at his peril, neither the motives 
nor the intent of the defendant can re- 
lieve him, when a sale is made without 
a license. The intent is immaterial 
when the statute makes the act indicta 
ble irrespective of guilty knowledge; 
and in such case ignorance of fact, no 
matter how sincere, can be no defense. 
It is enough that under the statute the 
commission of the act prohibited con- 
stitutes the offense, irrespective of the 
motives or knowledge of the defend- 
ant, and as his principal had no license 
to sell, the defendant must stand for 
him, so far as appertains to this prose- 
cution. " 
33People v. Soule, 74 Mich. 250, 41 N. 
W. Rep. 908. 
34Marshall v. State, 49 Ala. 21; Comm, 
v. Brown, (Mass.) 27 N. E. Rep. 776; 
State v. Finan, 10 Iowa, 19; Roberts v. 
O'Connor, 33 Me. 496. 
35Comm. v. Galligan, 144 Mass. 171, 
10 N. E. Rep. 788. 
434 § 372 
Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
of liquor, or otherwise assumes a temporary control of the prem- 
ises.36 So an indictment for keeping spirituous liquor for sale may 
be maintained against one employed as bar-keeper by the owner 
of a saloon where liquor is kept for sale. "It is settled in this state," 
says the court in New Hampshire, "that an indictment for keeping 
a nuisance respects not the ownership, but the criminal manage- 
ment, of the property complained of, and where there is evidence 
tending to implicate the defendant, it is immaterial whether he acted 
as principal, or as the servant or agent and by the command of 
another."37 Assuming, without authority, to act as agent for the 
owner, does not exonerate one from criminal responsibility for sell- 
ing liquor; but merely acting as messenger, and transmitting the 
liquor from the seller to the buyer, and the money from the buyer 
to the seller, does not render one criminally responsible.38 
In some states, the liability of servants or agents is not deter- 
mined solely on common law principles, but is materially affected 
by the statutes. Thus, in Maine, an act declares that any clerk, 
agent, or other person in the employment or on the premises of 
another, who violates, or in any manner aids or assists in violating, 
any act relating to intoxicating liquors, is equally guilty with the 
principal, and shall suffer like penalties. Under this statute, it is 
held that one who participates in the commission of the misdemeanor 
of keeping a liquor nuisance, to such an extent as to render himself 
criminally liable at all, is liable as a principal, and may be indicted, 
convicted, and punished as such, although the capacity in which he 
acted -was that of a clerk, agent, or servant merely.39 So a clerk in 
the establishment of a liquor dealer is included in a statute rendering 
liable to a penalty "any person or firm who shall sell, or be in any 
wise concerned in selling, spirituous liquors."40 But any exception 
in the statute in favor of the master will operate equally to the ben- 
36 Comm. v. Brady, 147 Mass. 583,18 
N. E. Rep. 568; Comm. v. Sinclair, 138 
Mass. 493. 
37 State v. McGuire, 64 N. H. 529, 15 
Atl. Rep. 213, citing State v. McGregor, 
41 N. H. 407. And see State v. Sullivan, 
83 Me. 417, 22 Atl. Rep. 381. 
88 Comm. v. Williams, 4 Allen, 587. 
39 State v. Sullivan, 83 Me. 417, 22 
Atl. Rep. 381. See, also, State v. 
Stacker, 33 Iowa, 395. 
40 Tardiff v. State, 23 Tex. 169. 
435 § 373 
[Ch. 16 
LAW OF INTOXICATING LIQUORS. 
efit of the employe. Thus, if the law exempts from its provisions 
"sales of cider by the makers thereof," this extends to sales by the 
makers through their servants or agents, and protects the servant as 
well as the master.41 
§ 373. Several Liability of Master and Servant. 
We have already mentioned that, in certain cases of violations of 
the liquor law, both the proprietor or master and the clerk or servant 
may be criminally responsible, and both may be indicted and pun- 
ished.42 Thus, in relation to the offense of keeping open a liquor- 
saloon on a day when the statute requires it to be closed, it is held 
that although, for keeping open one saloon there can be but one 
offense on one day, yet bar-tenders who were present and selling under 
the direction of the proprietor, are equally guilty with the latter, and 
his conviction and punishment will be no bar to their conviction.43 
41 Comm. v. Mahoney, (Mass.) 25 N. E. 
Rep. 833. 
42 See Thompson v. State, 5 Humph. 
138; French v. People, 3 Park. Crim. 
114. 
43 People v. Ackerman, 80 Mich. 588, 
45 N. W. Rep. 367. "It is urged," said 
the court in this case, "that the reason- 
able construction of the statute is that 
either the agent or the proprietor may 
be convicted of and punished for the 
offense, but that when one of them is so 
convicted and punished it is a bar to 
the conviction of the other. We do not 
think so. All engaged in the sell- 
ing of liquor in an open saloon on an 
interdicted day are made principals by 
the law, and the courts are not con- 
cerned with, and will not inquire into, 
the question of principal or agent, and 
all may be punished for the violation 
of the statute if proceeded against and 
convicted. Nor will it matter who 
opened the door. Those who are sell- 
ing behind the bar, or waiting upon 
customers in any part of the saloon, 
are equally guilty of keeping it open. 
There is no injustice in this holding. 
The respondent was not obliged to be 
in the saloon on that day, and must be 
considered to have known the law, and 
that his acts were unlawful. As the 
law also punishes the proprietor for the 
acts of his clerk or agent, it is sug- 
gested that under this interpretation of 
the statute Huber might be convicted 
and punished for the act of each of his 
three bar-tenders on this day and his 
own act, and thereby be punished four 
times for the same offense upon one 
day. This is not so. Huber can only 
be convicted and punished once for 
keeping his saloon open on the 30th of 
April, 1889, or any other legal holiday. 
One conviction would be a bar to any 
other for the same offense upon the 
same day. But this does not preclude 
the arrest and conviction of each of 
his three clerks for the same offense,- 
for a transaction in which they aided, 
and are made principals by the statute. 
Any number of persons concerned 
therein may be convicted of the same 
offense, if their acts in law make them 
436 § 374 
Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
So where a master intrusts to a servant the management and control 
of his business of selling liquor, and he carries it on in the absence 
of his employer, both may be convicted of keeping and maintaining 
the tenement.44 An agent having the actual possession of intoxicat- 
ing liquors, and participating in the unlawful purpose of sale, is 
equally guilty with his principal.45 
§ 374. Responsibility of Husband for Sales by Wife. 
In accordance with the well-settled principles of the criminal law, 
it is held that a husband is answerable for illegal sales, or other 
infractions of the liquor law, made by his wife in his presence, or by 
his command, or with his knowledge and consent, or when she acts 
as his agent or servant.46 The law presumes that what the wife does 
in the husband's presence she does under his influence and coercion. 
But when he is not present, no such presumption arises. And there- 
fore he cannot be convicted for illegal acts of selling, done by the 
wife in his absence, unless it is shown, to the satisfaction of the jury, 
that such acts were done by his command or authority.47 If the 
husband is near enough for the wife to act under his immediate 
influence and control, though not in the same room, he is not absent, 
within the meaning of the law.48 But the fact that, at the time of 
an unlawful sale of intoxicating liquor by a married woman, her 
husband was lying sick upon a bed in a room adjoining that in which 
the sale took place, the door between the rooms being open, does not 
raise a conclusive presumption of law that she was acting under his 
coercion.49 If a married woman keeps intoxicating liquors for sale 
in violation of law, in a house owned or hired by her, or owned by 
them jointly, and her husband aids her in such keeping and selling. 
principals, and the conviction of one 
is no bar to the conviction of the 
others." And see Janks v. State, 
(Tex. App.) 15 S. W. Rep. 815. 
44 Comm. v. Merriam, 148 Mass. 425,19 
N. E. Rep. 405. 
45 Menken v. Atlanta. 78 Ga. 668, 2 S. 
E. Rep. 559. 
46 Comm. v. Reynolds, 114 Mass. 306; 
Comm. v. Barry, 115 Mass. 146; Gening 
v. State, 1 McCord, 573. 
47 Seibert v. State, 40 Ala. 60; State v. 
Baker, 71 Mo. 475. See Comm. v. 
Coughlin, 14 Gray, 389. 
48 Comm. v. Flaherty, 140 Mass. 454, 5 
N. E. Rep. 258. 
49 Comm. v. Gormley, 133 Mass. 580. 
437 § 374 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
or if, without actually and actively aiding her, he is present, and has 
knowledge of the fact and of her intent, the presumption of law is 
that she is acting under his coercion, and he can be convicted of such 
illegal keeping, though he has no interest in the stock or profits.50 
And a husband, with guilty knowledge thereof, is liable for his wife's 
illegal keeping of liquors, although she has filed a certificate for 
doing business on her own account and holds a government license 
as a retail liquor-dealer.51 It has also been held that the husband is 
liable to be indicted and convicted, although he was not present at 
the sale, and although he had often remonstrated with the wife for 
selling liquor.52 But the best recent cases favor the doctrine that a 
husband cannot be convicted of maintaining a liquor nuisance where 
it appears that the house was owned by his wife, who used it for such 
unlawful purpose of her own free will, without his consent, even 
though it does not appear that he has used all reasonable and prac- 
ticable means to control her conduct; and evidence that from time 
to time, during several years next preceding the date laid in the 
indictment, he had used such means, is admissible, as showing the 
state of his mind at the period alleged in the indictment.53 The 
supreme judicial court of Massachusetts, in the case cited, took 
occasion to say: "We are aware that in some of the decisions 
expressions have been used which indicate that it is a substantive part 
of the law that, to excuse himself, the husband must show that he 
has used all reasonable and practicable means to restrain his wife; 
but, taking all the decisions together, we think it appears that his 
whole conduct, including what he did and said, as well as what he 
could reasonably have done and did not do, is admitted as evidence 
only for the purpose of proving or disproving his consent in fact to 
the acts done by his wife." In a prosecution for maintaining a liquor 
nuisance, where the evidence showed that all purchases of liquor had 
been made from defendant's wife at his tenement, and defendant 
testified that if any sales of liquor were made by his wife it was 
60Comm. v. Pratt, 126 Mass. 462; 
Comm. v. Carroll, 124 Mass. 30; Comm, 
v. Kennedy, 119 Mass. 211; Faircloth v. 
State, 73 Ga. 426. 
61 Comm. v. Barry, 115 Mass. 146. 
62 State v. McDaniel, 1 Houst. Crim. 
(Del.) 506. 
53 Comm. v. Hill, 145 Mass. 305, 14 N. 
E. Rep. 124. 
438 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 376 
without his knowledge or consent, it was held that, if the jury dis- 
believed him, the fact that he and his wife lived together in such 
tenement was competent evidence that she acted as his agent.64 
§ 375. Personal Liability of Wife. 
If a married woman commits an offense against the liquor laws, of 
her own free will, not in the presence of her husband, and independent 
of any coercion or control by him, she herself is criminally respon- 
sible, and he is not.66 And it is no defense to an indictment of a 
wife for being a common seller of intoxicating liquor, that her hus- 
band provided it and she unlawfully sold it, if she was not acting 
under his coercion or influence.66 And on a similar principle, a 
feme covert, who is a sole trader, is liable to the penalty for illegally 
selling liquor, although the liquor is handed to the purchaser by her 
husband, she being present, and he acting as her clerk.67 
§ 376. Husband and Wife Jointly Liable. 
There are certain cases in which the criminality of an offense 
against the liquor laws may be shared by husband and wife, so that 
both may be amenable to the penalty prescribed. Thus, a husband 
and wife may be jointly indicted for keeping and maintaining a liq- 
uor nuisance, and upon sufficient evidence, both may be convicted.68 
So also, it has been held that a husband and wife may be jointly 
indicted for a single act of retailing liquor unlawfully; and in such 
a case, if they are convicted, a fine must be assessed, and a judg- 
ment rendered, against each separately.69 
64 Comm. v. Hyland, (Mass.) 28 N. E. 
Rep. 1055. 
65 State v. Haines, 35 N. H. 207; 
Comm. v. Murphy, 2 Gray, 510; Comm, 
v. Burk, 11 Gray. 437; Comm. v. Daley, 
148 Mass. 11, 18 N. E. Rep. 579; Penny- 
haker v. State, 2 Blackf. 484. 
68 Comm. v. Welch, 97 Mass. 593. 
67 City Council v. Van Roven, 2 Mc- 
Cord, 465. 
68 Comm. v. Tryon, 99 Mass. 442. 
se Comm. v. Hamor, 8 Gratt. 698. 
439 § 378 
[Ch. 16 
LAW OF INTOXICATING LIQUORS. 
§ 377. Liability of Partners. 
At common law, if one partner in a firm sells intoxicating liquor 
unlawfully, in the absence of his co-partner and without his knowl- 
edge or consent, the latter is not liable to be indicted therefor.60 But 
this rule has been modified by statute in several of the states. Thus, 
in Mississippi, it is said that, under the laws there in force, one part- 
ner can be convicted upon a sale of liquor by his associate without 
his consent and in his absence.61 And in Arkansas, under a statute 
providing that any one who shall sell "or be interested in the sale" 
of liquors to a minor shall be guilty of a misdemeanor it is held that 
a person who is a partner in a saloon may be convicted for a sale by 
his co-partner, although the defendant was absent at the time and 
had no knowledge of it.62 And if one of two partners sells liquor 
unlawfully for account of the firm, and with the consent of the other 
partner, such other is liable.63 So also, an indictment for selling 
liquor to a minor will lie against two partners, where one, in the 
presence of the other, or a clerk, in the presence of and with the 
consent of both, makes the sale.64 
§ 378. Joint Liability. 
Two persons may be jointly indicted for selling liquor contrary to 
the statute, or for maintaining a liquor nuisance, or for any similar 
offense against these laws, and under such an indictment, one defend- 
ant may be convicted, although no case is made against the other.66 
60 Acree v. Comm., 13 Bush, 353. 
61 Whitton v. State, 37 Miss. 379. 
62 Robin son v. State, 38 Ark. 641; 
Waller v. State, Id. 656. 
63 State v. Neal, 27 N. H. 131. 
64 State v. Scoggins, 107 N. Car. 859, 
12 S. E. Rep. 59. 
65 State v. Simmons, 66 N. Car. 622; 
State v. Sterns, 28 Kans. 154; State v. 
Wadsworth, 30 Conn. 55; Tracy v. 
Perry, 5 N. H. 504. In Missouri, it is 
said that persons should not be jointly 
indicted for selling liquor without 
license, in the absence of proof show- 
ing a common design or concert of ac- 
tion. Where, however, notwithstand- 
ing the failure of such proof, it appears 
clearly that each of a number of de- 
fendants so jointly indicted is guilty of 
acts which would warrant a separate 
indictment and conviction, the mis- 
joinder does not work such "prejudice 
to the substantial rights of defendant 
upon the merits, " (as provided in the 
440 Ch. 16] 
§ 379 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
Nor is it necessary, to sustain a joint indictment, that the two defend- 
ants should have participated in the unlawful act in the same manner 
or to the same degree. For here the principle applies that in mis- 
demeanors there are no accessaries, but all who are criminally con- 
nected with the wrongful act are principals. Hence, for example, 
the person who procures the liquor and offers it for sale, and he who 
actually dispenses it to the purchaser, may be jointly guilty and 
jointly indicted and convicted.66 But in this connection it is impor- 
tant not to lose sight of the rules governing the relation of master and 
servant, already explained. Thus, in a prosecution against A. and 
B. for maintaining a liquor nuisance, the court instructed the jury 
that if B. assisted A. in keeping and maintaining the premises as a 
nuisance, he would be liable to conviction. But this was held errone- 
ous, as the jury might fairly have understood that they were instructed 
to convict B. although they should find that A. was the sole proprietor, 
and B.'s assistance was only that of a servant, rendered in A.'s 
presence.67 And so, in a similar case, an instruction that if one of 
the defendants was the sole proprietor, and the other was present, 
aiding and abetting him "in acts of proprietorship and control," both 
may be found guilty, is objectionable, as too indefinite and as tend- 
ing to mislead the jury.68 It is also held that two or more persons 
acting in concert in unlawful measures to secure the enforcement of 
the liquor law,-as, by using artifice or persuasion to induce a 
tavern-keeper to furnish liquor on Sunday, - are guilty of a con- 
spiracy.69 
§ 379. Sales by Children. 
A few cases have been reported in the books, involving the ques- 
tion of the criminal responsibility of infants under the liquor laws. 
But these cases have not departed from the common-law principles 
applicable to the subject, but have recognized the familiar rule which 
fixes the age of fourteen years as the dividing line with reference to 
statute,) as to warrant the interference 
of the supreme court. State v. Ed- 
wards, 60 Mo. 490. 
66 State v. Caswell, 2 Humph. 399. 
67 Comm. v. Murphy, 145 Mass. 250, 
13 N. E. Rep. 892. 
68 Comm. v. Galligan, 144 Mass. 171, 
10 N. E. Rep. 788. 
69 Comm. v. Leeds, 9 Phila. 569. 
441 [Ch. 16 
§ 381 
LAW OF INTOXICATING LIQUORS. 
the presumption of legal capacity for crime. Thus, it is held that if 
unauthorized sales of liquor are proven to have been made by a child 
under the age of fourteen years, in the presence of its mother and in 
obedience to her directions, it is necessary, in support of an indict- 
ment against the child for making such sales, to establish, as a dis- 
tinct fact, its legal capacity to commit a crime.70 But on the other 
hand, it is no defense to such an indictment that the defendant was 
a minor about seventeen years of age, and was selling under the 
instruction of another and as his servant or agent, without compen- 
sation, unless the defendant succeeds in proving that he was legally 
incapable of committing crime, or was acting under duress.71 
§ 380. Persons Aiding and Abetting. 
As a general principle, a person who aids and abets, or who coun- 
sels or procures, an unlawful sale of intoxicating liquors, is liable to 
punishment, and may be indicted as a principal in the transaction.72 
For example, one who is employed in making change for parties 
engaged in unlawfully selling liquor to minors may be convicted, on 
an indictment for selling the liquors, as aiding and assisting in the 
act.73 So, where an adult and a minor go together to a saloon, and 
the adult, with the money of the minor, purchases liquor for him, he 
is not only an agent of the minor for the purchase (which would not 
be punishable,) but he is also an aider and procurer of the sale, and 
therefore punishable as a principal in violating the statute prohibit- 
ing sales to minors.74 In misdemeanors, it will be remembered, all 
persons who procure, participate in, or assent to the commission of a 
crime are regarded as principals and indictable as such. 
§ 381. Purchaser not Guilty of an Offense. 
So far as we have been able to discover, there is but a single 
reported decision in which it has been held that the purchaser of 
70 Comm. v. Mead, 10 Allen, 398. 
71 Cagle v. State, 87 Ala. 38, 93, 6 
South. Rep. 300. 
72 State v. Shenkle, 36 Kans. 43, 12 
Pac. Rep. 309. 
73 Johnson v. People, 88 Ill. 431. 
74 Foster v. State, 45 Ark. 361. See, 
also, Cagle v. State, 87 Ala. 38, 93, 6 
South. Rep. 300- 
442 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 381 
liquor, which is sold in violation of law, is guilty of an offense against 
the statute.75 On the contrary, many cases support the doctrine that 
the purchaser, although he knows that the circumstances will render 
the sale illegal, is not guilty of any offense, by soliciting the seller to 
violate the law, or by aiding and abetting the crime, to the mere 
extent of buying the liquor, unless the statute expressly prescribes a 
punishment for him; that he is not criminating himself in testifying 
to the sale; and that his testimony is not to be regarded as that of 
an accomplice.76 On this point, the court in Massachusetts has spoken 
as follows: "The court are of opinion that the witness would not be 
liable to any prosecution as such purchaser, and therefore would not 
criminate himself or expose himself to punishment by such a pur- 
chase. No precedent and no authority has been shown for such a 
prosecution, and no such prosecution has been attempted within the 
knowledge of the court, although a similar law has been in force 
almost from the foundation of the government, and thousands of pros- 
ecutions and convictions of sellers have been had under it, most of 
which have been sustained by the testimony of buyers. That such a 
prosecution is unprecedented shows very strongly what has been under- 
stood to be the law upon this subject. It is difficult to draw any pre- 
cise line of distinction between the cases in which the law holds it a 
misdemeanor to counsel, entice, or induce another to commit a crime, 
and where it does not. In general, it has been considered as apply- 
ing to cases of felony, though it has been held that it does not depend 
upon the mere legal and technical distinction between felony and 
misdemeanor. One consideration, however, is manifest in all the 
cases, and that is, that the offense proposed to be committed, by the 
counsel, advice, or enticement of another, is of a high and aggravated 
character, tending to breaches of the peace or other great disorder and 
violence, being what are usually considered mala in se, or criminal in 
themselves, in contradistinction to mala prohibita, or acts otherwise 
75 State v. Bonner, 2 Head, 135. But 
compare the later case of Harney v. 
State, 8 Lea, 113. 
76 State v. Rand, 51 N. H. 361; Comm, 
v. Willard, 22 Pick. 476; State v. Tea- 
han, 50 Conn. 92; Harrington v. State, 
36 Ala. 236; State v. Miller, 26 W. Va. 
106; Harney v. State, 8 Lea, 113; Wake- 
man v. Chambers, 69 Iowa, 169, 28 N. 
W. Rep. 498; State v. Baden, 37 Minn. 
212, 34 N. W. Rep. 24. 
443 § 382 
LAW OF INTOXICATING LIQUORS. 
[Ch. 16 
indifferent than as they are restrained by positive law. All the cases 
cited in support of the objection of the witness are of this description. 
. . . There is another view of the subject, which we think has an 
important bearing on the question, if it is not indeed decisive. The stat- 
ute imposes a penalty upon any person who shall sell. But every sale 
implies a purchaser; there must be a purchaser as well as a seller, and 
this must have been known and understood by the legislature. Now, 
if it were intended that the purchaser should be subject to any penalty, 
it is to be presumed that it would have been declared in the statute, 
either by imposing a penalty on the buyer in terms, or by extending 
the penal consequences of the prohibited act to all persons aiding, 
counseling, or encouraging the principal offender. There being no 
such provision in the statute, there is a strong implication that none 
such was intended by the legislature."77 By an extension of this prin- 
ciple, it is held that one who has no interest in the liquor sold or in 
the money paid for it, and who acts merely as the agent or friend of 
the buyer, does not violate the statute against liquor-selling.78 
§ 382. Liability of Owner or Lessor of Premises. 
Unless the statuta expressly declares the contrary, the owner of 
premises upon which liquor is unlawfully kept for sale is not guilty 
of an offense, if he leased the premises for a lawful purpose and did 
not affirmatively assent to such unlawful use, and he is not bound to 
interfere and invoke the law, when he subsequently finds that the 
tenant is making such unlawful use of the premises; for the mere 
failure to prevent, or attempt to prevent, the illegal keeping or sale 
of liquor, does not subject him to the penalties of the statute.79 But 
in several of the states, the statutes are such as to impose a responsi- 
bility upon the landlord, when the tenant unlawfully keeps or sells 
liquor, if he leased the premises for that purpose, or if, with knowl- 
edge of the fact, he authorizes, suffers, or permits the unlawful acts 
77 Comm. v. Willard, 22 Pick. 476, per 
Shaw, C. J. 
78 Campbell v. State, 79 Ala. 271; Mor- 
gan v. State, 81 Ala. 72, 1 South. Rep. 
472. Compare Foster v. State, 45 Ark. 
361. And see Berger v. State, 50 Ark 
20, 6 S. W. Rep. 15. 
79 State v. Ballingall, 42 Iowa, 87 
Crocker v. State, 49 Ark. 60, 4 S. W 
Rep. 197. 
444 Ch. 16] 
CRIMINAL RESPONSIBILITY UNDER LIQUOR LAWS. 
§ 382 
of the tenant.80 In regard to bringing home such knowledge to the 
lessor, it is said that knowledge sufficient to excite the suspicions of 
a prudent man, and to put him upon inquiry, is equivalent to knowl- 
edge of the ultimate fact.81 And it is not essential to show that the 
lessor witnessed or had knowledge of the particular sales upon which 
the tenant was convicted; it is enough to allege and prove that the 
lessor had knowingly permitted the occupant to use the premises for 
the unlawful sale of liquor during the time when such sales were 
made.82 The gist of the landlord's offense is his permitting his prem- 
ises to be used for purposes violative of the liquor law, when he might 
have prevented it. Hence, to convict one under these statutes, it is 
essential that he should have had such control over the property as 
to be in a position to prevent or stop the illegal acts of the tenant. 
For this reason, one to whom property has been conveyed by a deed 
absolute in form, but in fact a mortgage, and who has neither the 
possession nor right of possession, cannot be guilty of permitting the 
premises to be used for the maintenance of a liquor nuisance.88 So 
a lessor cannot be convicted unless the lease specially reserves his 
control of the building, although the same statute provides that the 
owner may, in cases of the kind, recover possession by entry or 
action.84 In Kansas, the statute creates a lien, in favor of the state, 
for fines and costs adjudged against a person for unlawfully selling 
liquor, on premises leased to the convicted person, and knowingly 
suffered by the owner to be occupied and used for the purpose. This 
lien, it is held, attaches to the leased premises and operates on them 
from the date of the conviction of the tenant, and all conveyances 
made after that date are subject to such lien.86 In establishing the 
ownership of property against which such a lien is sought to be 
80 State v. Potter, 30 Iowa, 587; State 
v. Shanahan, 54 N. H. 437. 
81 Cordes v. State, 37 Kans. 48, 14 Pac. 
Rep. 493. The landlord cannot be held 
responsible for the acts of a subtenant 
in keeping a saloon for the sale of liq- 
uor on the premises, in violation of law, 
merely because he knows of it and 
does not interfere. Koester v. State, 
36 Kans. 27, 12 Pac. Rep. 339. 
82 Cordes v. State, 37 Kans. 48,34 Pac. 
Rep. 493. 
83 State v. Bates, (Vt.) 19 Atl. Rep. 
229. 
84 Comm. v. Wentworth, 146 Mass. 36, 
15 N. E. Rep. 138. 
85 Snyder v. State, 40 Kans. 543, 20 
Pac. Rep. 122. 
445 [Ch. 16 
§ 382 
LAW OF INTOXICATING LIQUORS. 
enforced, a deed purporting to convey property to the defendant is 
admissible in evidence, where the description, in connection with 
well-known facts that are in testimony, fairly designates the property 
described in the petition.86 In such action, the title to the property 
being in the name of a wife, the husband is properly joined as a party 
defendant.87 
86 Cordes v. State, 37 Kans. 48,14 Pac. 
Rep. 493. 
87Pfefferle v. State, 39 Kans. 128, 17 
Pac. Rep. 828. 
446 Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 383 
CHAPTER XVII. 
CRIMES AND OFFENSES UNDER THE LIQUOR LAWS. 
§ 383. Grade of Offenses. 
384. Illegal Sales. 
885. Being a Common Seller. 
886. Pursuing the Business of Selling Liquor. 
387. Unlawful Keeping of Liquors. 
388. Maintaining Liquor Nuisance. 
389. Keeping Place for Sale of Liquors. 
390. Keeping Disorderly House. 
391. Furnishing Liquor in Theatres. 
392. Selling Liquor to be Drunk on Premises. 
393. Keeping Open on Prohibited Days. 
394. Illegal Transportation of Liquors. 
395. Introduction of Liquor into Indian Country. 
396. Importation of Liquor into Alaska. 
397. Bell-Punch Law. 
398. Employment of Women in Saloons. 
399. Manufacture of Liquor. 
400. Being Drunk in a Public Place. 
401. Distinct Offenses in One Act. 
§ 383. Grade of Offenses. 
Offenses against the liquor laws, such as illegal sales of intoxi- 
cants, keeping liquor in possession with the intent to dispose of it 
unlawfully, illegally transporting liquor from place to place, and the 
like, are statutory crimes, not being punishable at common law. 
They are also of the description of mala prohibita, as there is no in- 
herent immorality in such acts, and their illegality lies only in the 
fact of their being positively prohibited. Further, it is held that the 
offense of selling intoxicating liquor in contravention of a state stat- 
ute, though punishable by imprisonment, is not an "infamous crime," 
in such sense that it must be prosecuted by presentment or indict- 
ment, within a constitutional provision in that behalf.1 And the 
1 State v. Nolan, 15 R. I. 529, 10 Atl. Rep. 481. And see United States v. 
Maxwell, 3 Dill. 275. 
447 § 385 
LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
various criminal infractions of the laws now under our consideration 
are not, as a rule, of the grade of felonies, although there may pos- 
sibly be some cases in which they are declared such by statute. They 
are generally regarded and punished as misdemeanors. Thus, the 
selling of liquor without a license is punishable as a misdemeanor 
under a statute upon that subject, although the statute contains no 
other prohibition than the imposition of a penalty, and a provision 
that all offenses against the terms of the act shall be deemed misde- 
meanors.2 And the same act is a misdemeanor although described 
in the statute simply as an offense.8 
§ 384. Illegal Sales. 
A great part of the substantive law of criminal offenses against the 
liquor statutes is taken up with the subject of illegal sales,-such as 
sales without license, in prohibited places, on prohibited days, to par- 
ticular classes of persons, and so on. But as these topics form, in 
a sense, a connected whole, and as they constitute so large and 
important a part of the criminal law of intoxicating liquors, it seems 
best to reserve them for a separate discussion, and the reader is there- 
fore referred to the succeeding chapter for a full consideration of 
illegal sales as criminal offenses. 
§ 385. Being a Common Seller. 
In several of the New England states, the statutes prescribe a pen- 
alty for any person who shall be found guilty of being a "common 
seller" of intoxicating liquor, or who shall "presume to be a common 
seller" thereof.4 "While it is evident that these statutes primarily 
contemplate the case of one who has a fixed place of business, where 
he customarily pursues the occupation of vending liquors, it is held 
that a man who travels about with liquors on his person, making 
sales of the same, may be indicted as a common seller.5 And where 
the penalty is against "a manufacturer of any spirituous or intoxi- 
2 People v. Brown, 16 Wend. 561. 
8 Hill v. People, 20 N. Y. 363. 
4 See Foster v. Haines, 13 Me. 307; 
State v. Davis, 23 Me. 403. 
6State v. Grames, 68 Me. 418. 
448 Ch. 17] 
§ 385 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
eating liquors for sale, or a common seller thereof," it extends to a 
common seller or liquors not manufactured by himself.6 To com- 
plete this offense, it is not necessary that the defendant should have 
known or supposed that the liquor sold by him was intoxicating; the 
crime being statutory, ignorance is no defense, and the intent is not 
material.7 In the absence of statutory aid, it is somewhat difficult 
to determine bow many separate sales of liquor a man must make 
before he can be called a "common seller," or how many must be 
put in evidence before the jury will be justified in putting that char- 
acter upon him. From the employment of the word "common, " it is 
apparent that a person who in a single instance sells liquor, as an 
exceptional matter and not as a part of his business, cannot be 
regarded as within the meaning of the phrase. The language 
employed implies that the selling must be usual or habitual with 
him; it must be a part or the whole of his regular avocation, or at 
least the act must be repeatedly done. But although it might be 
thought, from analogous uses of the word "common," that the phrase 
was meant to describe one who sold liquor to all such as might apply 
to him for it, yet the decisions would not warrant us in this infer- 
ence. They indicate that a man might be a common seller of liquor 
although he retailed it only to certain chosen persons and refused to 
sell it indiscriminately. It seems, therefore, to be the accepted doc- 
trine, in the absence of a statutory definition, that no particular 
number of sales need be proved to constitute one a common seller, 
but the jury must be satisfied, from the evidence, that selling liquor 
was the common and ordinary business of the defendant, and they 
will be authorized to find him guilty without proof of any particular 
or fixed number of sales.8 In Massachusetts, however, the statute 
provides that three several sales of spirituous or intoxicating liquor 
shall be sufficient evidence of the character of the defendant as a 
common seller. This provision, it is held, is valid and constitu- 
tional,9 and under it, it is the duty of the court to instruct the jury 
6 Comm. v. Brail ey, 3 Gray, 456. 
7 Comm. v. Boynton, 2 Allen, 160. 
8 State v. O'Conner, 49 Me. 594. Four 
specific deliveries of liquor within eight 
days are sufficient to warrant a convic- 
tion of being a common seller. State 
v. Day, 37 Me. 244. 
9 Comm. v. Burns, 9 Gray, 132. 
INTOX.LIQ.-29 
449 § 386 
[Ch. 17 
LAW OF INTOXICATING LIQUORS. 
that proof of three sales is enough evidence to warrant a verdict of 
guilty.10 It is not a material inquiry whether the three sales were 
all made to the same person or to different persons.11 And it is held 
that the offense may be committed by making a sufficient number of 
unlawful sales on the same day.12 Sales of three glasses of liquor 
in the course of the same evening, each of the first two of which is 
drunk and paid for before the next is delivered, if found by the jury 
to be three distinct and independent transactions, are sufficient evi- 
dence to convict the vendor of being a common seller.13 It is also to 
be remarked that the criminality of the character of being a common 
seller is a distinct thing from the criminality of the several illegal 
sales made in that occupation. Hence, under these statutes, a man 
may be convicted and punished for each illegal sale which he makes, 
and if he makes three or more such sales, he may also be convicted 
and punished for being a common seller of liquor.14 
§ 386. Pursuing the Business of Selling Liquor. 
Under the laws of the United States, and under the statutes of 
several of the states, it is made a penal offense to "engage in," or to 
"pursue," or to "carry on, the business of a retail liquor-dealer," 
without procuring a license or paying a tax. To constitute this 
offense, it is held, the accused must have procured the liquor sold 
with intent to retail it, or, having it on hand, must have formed the 
intent to retail it, and carried out that intent by one or more acts. 
It is not enough that, having the liquor on band for his own use, he 
let others have it as a matter of kindness or neighborliness, although 
he took money from them for the accommodation.16 But a single 
sale of liquor by one who intends to continue selling is sufficient to 
render him guilty of "engaging in or carrying on the business" of a 
liquor-dealer.16 Yet it is essential, if only one act of selling is relied 
10 Comm. v. Kirk, 7 Gray, 496. See 
State v. Williams, 6 R. I. 207. 
11 Comm. v. Odlin, 23 Pick. 275. 
12 Comm. v. Perley, 2 Cush. 559. 
18 Comm. v. Rumrill, 1 Gray, 388. 
14State v. Johnson, 3 R. I. 94; Comm, 
v. Porter, 4 Gray, 426. 
16United States v. Bonham, 31 Fed. 
Rep. 808. 
16 Abel v. State, (Ala.) 8 South. Rep. 
760. 
450 Ch. 17] 
§ 386 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
on, to show that it was macle as a part of an actual or intended busi- 
ness, or to connect it with proof of an intention to pursue the occupa- 
tion. Thus, an indictment for this offense is not sustained by evi- 
dence of a single sale of liquor by a farmer and carpenter without 
proof of such intent.17 So a person whose business is that of a butcher, 
but who sells liquor once without a license, cannot be regarded as 
one engaged in the "business or employment" of retailing, and is not 
liable to the penalty.18 Selling an occasional drink of spirits out of 
a bottle, not in a bar-room, where no intention of defrauding the 
national revenue is apparent, is not "carrying on the business of a 
retail liquor-dealer," without having paid the special tax, in the con- 
templation of the federal statute.19 And so, the gratuitous distribu- 
tion of liquor at a public gaming-table, does not constitute the propri- 
etor a retailer.20 And one who assigns a due-bill payable in whisky does 
not thereby become a dealer in intoxicating liquors.21 But it is held, 
in Vermont, that the penalty for "dealing in the selling of foreign or 
domestic distilled spirituous liquors," without a license, may be 
incurred by a single act of selling.22 In Texas, where the prohibition 
of the statute is against "pursuing the occupation" of selling intoxi- 
cating liquors without payment of the tax levied on such occupation, 
it is held that a single unlicensed sale is not enough to constitute the 
offense.23 Neither is it correct to charge the jury that "different 
sales at different times, near each other, to different persons, would 
constitute the occupation of selling."24 Where the statute prohibits 
peddlers from "carrying for sale, or offering for sale, or obtaining 
orders for the sale of, any intoxicating liquors," it is held that this 
creates distinct offenses, not joinable in the same count.25 
17 Bryant v. State. 46 Ala. 302. 
18 Moore v. State, 16 Ala. 411. A stat- 
ute making it an offense to carry on the 
business of selling liquor without pay- 
ing a license tax does not repeal by im- 
plication a statute designed to punish 
occasional sales of liquor by unauthor- 
ized persons having no regular places 
of business. Blackwell v. State, 45 
Ark. 90. 
19 United States v. Jackson, 1 Hughes, 
531. 
20 United States v. Mickle, 1 Cranch, 
C. C. 268. 
21Schweyer v. Oberkoetter, 25 Ill. 
App. 183. 
22 State v. Chandler, 15 Vt. 425. 
23Standford v. State, 16Tex. App. 331; 
Merritt v. State, 19 Tex. App. 435; Halfin 
v. State, 18 Tex. App. 410; Williams v. 
State, 23 Tex. App. 499,5 S. W. Rep. 136. 
24 McReynolds v. State, 26 Tex. App. 
372, 9 S. W. Rep. 617. 
26 State v. Smith, 61 Me. 386. 
451 § 387 
LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
§ 387. Unlawful Keeping of Liquors. 
In many of the states the statutes are so framed as to impose a 
penalty on any person who shall keep intoxicating liquor with the 
intent to sell the same unlawfully. Without the statute, such keep- 
ing and intent would not constitute a punishable offense. "At com- 
mon law, the mere having of a thing, while not using it, with the 
intent therewith to commit a crime, even a felony, is not indictable. 
Hence, a fortiori, it is not a common law offense to be in possession 
of liquors with intent to commit the misdemeanor of selling them 
contrary to the regulations of a statute. "26 Under the statutes denounc- 
ing a penalty upon such unlawful keeping, it is held that the guilty 
intent need not include a knowledge by the seller of the intoxicating 
quality of the liquor.27 And although the defendant may be duly 
authorized to sell liquor under certain circumstances, or for certain 
purposes, or in certain places or districts, as where he is the appointed 
agent for such sale in a given city or town, yet if he actually intends 
to dispose of the liquors in his possession in ways or in places where 
his authorization would not protect him, he is indictable for the 
unlawful keeping.28 So long as the owner of liquors retains posses- 
sion of them, intending to deliver them on an unlawful contract of 
sale, such possession is within a statute or ordinance which prohib- 
its the keeping of liquors for unlawful sale.29 Where the language 
of the statute is that it shall be an offense to keep intoxicating liq- 
uors with intent "to sell the same within the state, contrary to law," 
the intent need not be to sell in or from the building in which the 
liquors are kept.30 And if the statute omits the words "within the 
state," the crime is committed by keeping the liquors within the 
state, although with intent to sell and export them to another state.31 
In Maine, the law is very comprehensive and stringent, providing 
26 Bishop, Stat. Crimes, § 1054. 
27 Comm. v. Goodman, 97 Mass. 117. 
28 State v. Connelly. 63 Me. 212. 
^Menken v. Atlanta, 78 Ga. 668, 2 S. 
E. Rep. 559; Griffin v. Atlanta, 78 Ga. 
679, 4 S. E. Rep. 154. 
30 State v. Viers, (Iowa,) 48 N. W. 
Rep. 732. 
31 State v. Guinness, 16 R. I. 401, 16 
Atl. Rep. 910. 
452 Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 388 
that it shall be unlawful to deposit or have in one's possession intox- 
icating liquors, with the intent to sell them within the state in viola- 
tion of law, or with intent that the same shall be so sold by any 
person, or to aid or assist any person in such sale thereof. Under 
this statute, it is held that, to complete the offense, it is not neces- 
sary that the keeper shall intend to make the unlawful sale himself, 
where there is a keeping with the intent that an unlawful sale shall 
be made in the state by any person, or with the intent to aid or assist 
in such unlawful sale.32 It is further necessary to remark that to 
sell liquor unlawfully and to keep it for sale unlawfully are entirely 
distinct offenses under these statutes, founded on distinct criminal 
purposes, and completed by different criminal acts. Hence it follows 
that although the offender will be liable to prosecution under a stat- 
ute for the unlawful selling of liquors, when the sale is consummated, 
this will not hinder his being punished for the unlawful keeping of 
the liquors before the sale.33 For the same reason, a conviction or 
acquittal for one of these offenses is no bar to a prosecution for the 
other, and the evidence of a sale, admitted on a trial for the selling, 
is admissible on a subsequent trial for the unlawful keeping.34 On 
the same principle, it is held, in Iowa, that an information charging 
that defendant kept intoxicating liquor with intent to sell the same, 
is no bar to an indictment charging that he established and continued 
a building and place in which he kept liquor with intent to sell.85 
§ 388. Maintaining Liquor Nuisance. 
We have already seen that the statutes in several of the states 
declare that all buildings and places kept for the unlawful sale of 
liquor shall be deemed common nuisances, and provide for their 
injunction or abatement by proceedings in equity.88 These statutes 
also, as a rule, make provision for the criminal prosecution of the 
person guilty of maintaining the nuisance. To constitute the offense, 
it is necessary that a sale or sales of liquor should have been made 
82 State v. Kaier, 56 Me. 88. 
^Griffin v. Atlanta, 78 Ga. 679, 4 S. E. 
Rep. 154. 
84 State v. Head, 3 R. I. 135. 
85 State v. Harris, 64 Iowa, 287, 20 N. 
W. Rep. 439. 
86 Supra, §§ 338-349. 
453 § 388 
[Ch. 17 
LAW OF INTOXICATING LIQUORS. 
in violation of some law or ordinance.87 But it is not necessary, for 
a conviction for maintaining a liquor nuisance, that the sale of liquor 
should be the main purpose of the place or one of its main purposes.38 
And the decisions clearly indicate that the repetition, or the fre- 
quency, of illicit sales is not the test by which to determine the char- 
acter of the place as a nuisance. A single sale, it is held, will war- 
rant a conviction on an indictment for maintaining a nuisance by 
keeping a saloon for the unlawful sale of liquor. "The keeping of 
intoxicating liquors, with the intent to sell them contrary to law, is 
the act of defendant creating the nuisance. One sale will disclose 
the unlawful intent as well as the keeping. Hence upon one unlaw- 
ful sale a conviction may be had for nuisance."89 So where the law 
provides that houses where drunkenness, quarreling, and breaches of 
the peace are carried on, to the disturbance of others, shall be deemed 
nuisances, a place where such acts are done but once is a nuisance.40 
But in Wisconsin, under an act providing that all places where liquors 
are sold in violation of law are public nuisances, it is held, that a 
sale of liquor on Sunday by a licensed saloon-keeper, in the absence 
of evidence showing that a city ordinance had been passed forbid- 
ding the sale of liquor on that day, is not such a violation of the law 
as to render the place in which it was sold a nuisance.41 Two or 
more persons may be jointly guilty under these statutes. For several 
may participate in the maintenance of a nuisance. And if two are 
jointly indicted, it is not necessary to show that they carried on the 
place in partnership.42 Nor is it essential that the defendant should 
have had the ultimate or absolute control of the building.43 A statute 
declaring buildings used for the illegal sale of intoxicating liquors to 
be common nuisances, and to be treated as such, does not necessarily 
87 State v. Waynick, 45 Iowa, 516; 
State v. Johnson, 61 Iowa, 504,16 N. W. 
Rep. 534. 
38 State v. Hoxsie, 15 R. I. 1, 22 Atl. 
Rep. 1059. 
39 State v. Reyelts, 74 Iowa, 499, 38 N. 
W. Rep. 377. But the Illinois act does 
not include a place where liquor is ille- 
gally sold in a single instance without 
the actual permission or consent of the 
keeper. Nicholson v. People, 29 Ill. 
App. 57. 
40 State v. Pierce, 65 Iowa, 85, 21 N. 
W. Rep. 195. 
41 State v. Wacker, 71 Wis. 672, 38 N. 
W. Rep. 189. 
42 State v. Hoxsie, 15 R. I. 1, 22 Atl. 
Rep 1059. 
43 State v. Chapman, (S. Dak.) 47 N. 
W. Rep. 411. 
454 Ch. 17] 
§ 389 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
repeal a law authorizing the indictment of a person for being a com- 
mon seller of such liquors in a building.44 
§ 389. Keeping Place for Sale of Liquors. 
Closely analogous to the statutes considered in the preceding sec- 
tion are the laws, found in many states, against "keeping a place 
for the unlawful sale of liquors," or keeping a "public bar," or a 
"place of public resort" for illicit selling and drinking, and the like. 
Thus, in Iowa, the code makes it an offense to maintain a building 
in which liquors are sold or kept for sale contrary to law; and it is 
held to be an offense to maintain a building in which liquors are 
illegally sold, though no liquors are kept in that building.45 So, in 
Indiana, the law provides that whoever keeps a place where intoxi- 
cating liquors are sold, bartered, given away, or suffered to be drunk 
in a disorderly manner, to the annoyance or injury of any part of the 
citizens of the state, shall be fined, etc. And this, it is held, forbids 
the keeping of a place in a disorderly manner, and not merely the 
selling or dispensing of liquor in such manner.46 In other states, the 
prohibition of the act is against the keeping of a place for the sale of 
liquor "as a place of public fesort." And it is adjudged that a dwell- 
ing-house is such a place if it is frequented by the public (though for 
the purpose of purchasing non-intoxicating drinks only) with the same 
freedom that men exercise in going to ordinary public resorts for 
drinking purposes.47 And the particular number of customers does 
not furnish the test by which to determine whether the place in ques- 
tion is a place of public resort.48 In Massachusetts, it is a statutory 
offense to keep or maintain a tenement used for the illegal keeping 
44 Comm. v. Roland, 12 Gray, 132. 
45 State v. Viers, (Iowa,)48N. W. Rep. 
732. In a prosecution for keeping a 
place for the sale of intoxicating liq- 
uors, an instruction that defendant 
could not be convicted "if in good faith 
he believed he had a right to sell, " is 
improper. State v. Mullenhoff, 74 
Iowa, 271, 37 N. W. Rep. 329. 
46 Nace v. State, 117 Ind. 114, 19 N. 
E. Rep. 729. And it is held that the 
word "citizens, " as used in this statute, 
includes "residents. " Skinner v. State, 
120 Ind. 127, 22 N. E. Rep. 115. 
47 State v. Spaulding, 61 Vt. 505, 17 
Atl. Rep. 844. See, also, Bandalow v. 
People, 90 Ill. 218. 
48 State v. Spaulding, 61 Vt. 505, 17 
Atl. Rep. 844. 
455 § 390 
[Ch. 17 
LAW OF INTOXICATING LIQUORS. 
or sale of liquor. And it is there ruled that a "tenement" may consist 
of two rooms used together and immediately connected together, and 
if the two are used alternately and interchangeably for the illegal 
sale or keeping of liquors, they may be considered as parts of one 
and the same tenement, and the illegal use of either, while thus con- 
nected and used, is an illegal use of the tenement.49 In the same 
state there is a decision that a licensed victualler may be convicted 
of keeping a "public bar," under a statute in that behalf, if he sella 
and delivers liquors, not in connection with food, indiscriminately to 
such persons as may call for them, over a bar or counter, although 
there is no public display of the liquors, and the bar is also used for 
luncheon purposes.,60 In Connecticut, the law imposes a penalty on 
every person who, without a license, shall keep a place where "it is 
reputed" that intoxicating liquors are sold or kept for sale. It is not 
necessary, to constitute the offense, that it should be reputed that the 
defendant had no license, if the reputation of the place as one where 
liquor was kept for sale is shown.61 But the reputation must be 
"an honest one, founded on the true and honest opinion of the neigh- 
borhood."62 And the statute does not apply to an inclosed park, 
containing several acres of land, within which is an uninclosed and 
uncovered platform for dancing, from which beer is sold.63 It is 
further to be remarked that the statutory offense of the "keeping of 
a place" for the unlawful sale of liquor is an entirely distinct offense 
from that of selling liquor unlawfully; and this, although the statute 
does not define the place as one of public resort.64 
§ 390. Keeping Disorderly House. 
A person who sells liquor and permits it to be drunk on his prem- 
ises is liable for the disorderly conduct of those to whom he sells, in 
and about his shop, as for keeping a disorderly house.65 And in a 
49 Comm. v. Fraher, 126 Mass. 56. 
See, also, Comm. v. Welch, 147 Mass. 
374, 17 N. E. Rep. 895. 
60 Comm. v. Rogers, 135 Mass. 536. 
61 State v. Buckley, 40 Conn. 246. 
62 State v. Morgan, 40 Conn. 44. And 
see State v. Moriarty, 50 Conn. 415. 
63 State v. Barr, 39 Conn. 40. 
64 Oshe v. State, 37 Ohio St. 494. 
65 State v. Burchinal, 4 Harr. (Del.) 
572. 
456 Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 392 
case where a person was indicted for keeping "a disorderly house 
called a tippling-house," where he sold liquor without license, and 
gathered together noisy and drunken people who quarreled and fought, 
to the great annoyance and disturbance of the people, it was held 
that the defendant might be liable although the quarreling and fight- 
ing were in the street, and that the prosecution was not bound to 
prove that the defendant knew of the alleged annoyance.66 Further, 
although the defendant may be duly licensed for the sale of liquor, 
that will not protect him in maintaining his house in a disorderly 
manner or in suffering turbulent or disorderly assemblages on the 
premises. For instance, if a person holding a license to retail 
liquor causes and procures evil-disposed persons to congregate in and 
about his house, and permits them to remain there drinking and 
behaving in a boisterous and disorderly manner, this constitutes the 
house a public nuisance, and the keeper uf it is indictable.67 But it 
is held that proof of a single instance of disorder will not sustain a 
conviction, under a statute, for keeping a place where liquors are 
sold in a disorderly manner.68 
§ 391. Furnishing Liquor in Theatres. 
Where a statute is in force which prohibits the furnishing of 
liquors inside any theatre or place of amusement or "any apartment 
opening into the same," it is held that the act of the proprietor of a 
theatre, who gives tickets to persons admitting them to a wine-room 
in an adjoining building, which is accessible by stairs from his bar- 
room, whence liquors are sent, amounts to a violation of the statute.69 
§ 392. Selling Liquor to be Drunk on Premises. 
In some jurisdictions, the sale of liquor, in less quantities than 
a certain measure, "to be drunk on the premises," is prohibited by 
law; and in others, the holders of certain classes of licenses are 
forbidden to make sales for such purpose. In a prosecution on these 
66 Cable v. State, 8 Blackf. 531. Com- 
pare Dunnaway v. State, 9 Yerg. 350. 
67 State v. Mullikin, 8 Blackf. 260. 
68 Overman v. State, 88 Ind. 6. 
69 State v. White, 7 Baxt. 158. 
457 § 392 
[Ch. 17 
LAW OF INTOXICATING LIQUORS. 
statutes, it is said, it is not necessary to prove that the liquor was 
in fact drunk on the premises; the essence of the offense is the 
selling of it for the purpose and with the intention that it should be 
so drunk.60 It is also ruled that the defendant may show, in defense, 
that he both bought and sold the liquor with the understanding 
and belief that it was not intoxicating liquor.61 But it is the duty 
of the person who sells the liquor to do what he can to prevent its 
being drunk on his premises.62 And one who permits liquor to be 
drunk in his house and in his presence, without objection, will be 
presumed to consent thereto.63 The cases arising under statutes of 
this character have for the most part turned on the question of the 
place where the liquor was drunk being on or off the premises of the 
seller. And the opinion has been advanced that the place of the 
drinking must be some place over which the seller has the legal 
right to exercise authority and control.64 This rule probably depends, 
in some measure, on the principle above stated, that it is the duty 
of the seller to forbid the drinking on his premises and prevent it 
if he can. And if the statute says no more than that the liquor shall 
not be sold to be drunk "on the premises," the rule is probably well- 
founded, for in that case it merely defines the word "premises." 
Thus, where the liquor is handed through a window, to be drunk 
on the seller's back steps, there is a violation of the statute.65 And 
so where the liquor is drunk from glasses of the seller on a bench 
used by him in a mill-yard some fifteen or twenty steps from his 
house.66 So also, where it is drunk on the lot on which defendant's 
shop is situated, out of glasses furnished by him, customers being 
accustomed to drink there.67 And so again, where the purchaser 
stepped out of the rear door of the saloon opening into a room for- 
00 Comm. v. Luddy, 143 Mass. 563, 10 
N. E. Rep. 448. An ordinance provid- 
ing that no person shall sell liquors in 
less quantities than a quart to be drunk 
on the premises, without a license, does 
not prohibit the sale of quantities less 
than a quart to be taken from the prem- 
ises. State v. Pratt, 52 N. J. Law, 306, 
19 Atl. Rep. 607. 
61 Farrell v. State, 82 Ohio St. 456, 30 
Am. Rep. 614. 
62 Christian v. State, 40 Ala. 376. 
63 Cochran v. State, 26 Tex. 678. 
64 Downman v. State, 14 Ala. 242; 
Swan v. State, 11 Ala. 594; Daly v. State, 
33 Ala. 431. 
65 Stockwell v. State, 85 Ind. 522. 
66 Swan v. State, 11 Ala. 594. 
67 Shields v. State, 95 Ind. 299. 
458 Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 392 
merly used as a bowling-alley, and where customers were in the 
habit of drinking liquor purchased in the saloon, and there drank 
what he had bought, about twenty feet from the rear door.68 But 
where the purchaser took the liquor to a shed, some fifteen or 
twenty feet distant from the seller's premises, and there drank it, 
and there was no agreement or understanding between the buyer 
and seller as to where the liquor was to be drunk, it was held 
that the seller had not violated the law.69 But where, as in some 
of the states, the statute uses a more comprehensive expression 
than that above supposed, and forbids the sale of liquor to be 
drunk "on or about the premises," the question is entirely different. 
In such case, it is held that the designation embraces places over 
which the seller has no legal right to exercise authority or control, 
but which are so near to his premises, and so situated in relation 
thereto, that they are within the mischief intended to be remedied.70 
Thus, in a prosecution under such a statute, it is no defense that 
the liquor, though drunk within five or six steps of defendant's store, 
was drunk in the public road over which he had no control; nor 
will it avail as a defense that he did not notice the act of drink- 
ing at the time.71 And although, in a majority of cases, it may be 
a question of fact for the jury whether the place at which the liq- 
uor is drunk is "about the premises" of the seller, yet, where it is 
shown that the drinking was in the highway, in front of the sel- 
ler's store, in full view thereof, and within a distance of ten or 
twenty steps, the court may instruct the jury that it was drunk 
"about the premises."72 In one of the cases arising under such a 
statute, the evidence showed that while the defendant, with two other 
persons, was at work on a ditch on a plantation belonging to another 
owner, about a mile from defendant's house, the defendant sold 
whisky to his companions, which they drank on the spot; and it 
was held that a conviction was right.73 In another case, it was 
ruled that defendant might be found guilty of selling liquor to be 
68 Stout v. State, 93 Ind. 150. 
69 O'Connor v. State, 45 Ind. 351. 
70 Easterling v. State, 30 Ala. 46. 
71 Whaley v. State, 87 Ala. 83, 6 South. 
Rep. 380. See, also, Patterson v. State, 
36 Ala. 297. 
72 Brown v. State, 31 Ala. 353. 
73 Powell v. State, 63 Ala. 177. 
459 § 393 
.LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
drunk "on or about the premises," if he went to a public vendue, 
taking liquor with him in his buggy, and there sold a quart of the 
same to several persons.74 
§ 393. Keeping Open on Prohibited Days. 
In many of the states, it is made a criminal offense to "keep 
open" a bar-room or liquor-saloon on certain prohibited days. The 
days usually specified in the statutes are Sundays, legal holidays, and 
election days. And it is held that Christmas day is a legal holiday 
within the meaning of that term as used in these laws.76 It will be 
observed that while the liquor laws commonly prohibit the sale of 
intoxicants on such days, the keeping open of a place for such sale on 
a prohibited day is an entirely distinct and independent offense. It 
cannot be said that one of these crimes is of a higher grade than the 
other, or that either merges in the other. On the contrary, if a liq- 
uor-dealer keeps his shop open on a Sunday and then and there sells 
a glass of liquor, he is guilty, under these statutes, of two offenses, 
and may be punished for both.76 Hence an actual sale of liquor is 
not necessary to complete the offense of keeping open. And on an 
indictment for that offense, it need not be alleged or proved that the 
defendant sold liquor, or that the keeping open of his shop was a nui- 
sance or hurtful to the neighborhood in respect to morals or other- 
wise.77 So a man may be convicted for keeping open a bar-room in 
his restaurant after the lawful hours for selling, although he sold no 
liquor after the hour for closing, and drew a curtain around the bar 
before that hour.78 But in Illinois, it is held that merely opening a 
74 Pearce v. State, 40 Ala. 720. 
76Reithmiller v. People, 44 Mich. 280, 
6 N. W. Rep. 667. 
76 State v. Ambs, 20 Mo. 214; Hudson 
v. Geary, 4 R. I. 485. It is a breach of 
a licensee's bond, conditioned to "duly 
observe all laws relating to intoxicating 
liquors, " to keep open on Sunday a 
place where such liquors are exposed 
for sale, though a violation not of the 
liquor law, but of the statute in regard 
to Sunday. Quintard v. Corcoran, 50 
Conn. 34. 
77 Hall v. State, 3 Ga. 18. But where 
an ordinance imposed a penalty on any 
licensed retailer who should, on Sun- 
day, "open his shop, where he retails, 
for the purpose of selling," etc., of the 
sum of $25 for each offense of selling, 
held, that no penalty was incurred ex- 
cept for selling. Lincolnton v. McCar- 
ter, Bush. L. 429. See Pub. Acts Mich. 
1887, No. 318, § 17, p. 455. 
78 Baldwin v. Chicago, 68 Ill. 418. 
460 § 393 
Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
house on Sunday and permitting people to resort there, no tippling 
being intended or allowed, will not constitute the offense of keeping 
open a tippling-house on Sunday.79 But the keeper of a boarding- 
house is guilty of the offense, though he sells but a single glass of 
beer, if his saloon is accessible to the public on that day.80 A stat- 
ute of this character contemplates but a single offense, whether the 
saloon is open once or many times during the same day.81 And it 
is said that the statute is violated by the proprietor keeping the place 
open but for a moment and for any cause.82 
In regard to the meaning of the word "open," and the degree of 
accessibility of the saloon, it is held that, in order to constitute the 
offense, it is not necessary that the house should be kept open fh the 
same manner as on ordinary and lawful days. It will be within the 
statutory offense, if it is so kept that access may be had thereto on 
the prohibited day, and facilities afforded for the obtaining of intox- 
icating drinks, and it is not material whether the access is by the 
front door or back door, or whether the door is kept open or is only 
opened on application for admittance.83 And although that part of 
the house where the bar is situated may not be open to the public, 
yet if other rooms in the house, connected with the bar-room, and 
habitually or occasionally used for drinking purposes, are accessible to 
persons desiring liquor, such rooms are regarded as a part of the 
saloon, and, while they are open, the saloon is not closed as the law 
requires.84 One is guilty of keeping open a tippling house on Sun- 
day, if liquor is then retailed and drunk in his restaurant in the rear 
of his office, the buyers entering by simply pushing open the street 
door of the office, notwithstanding the bar may be concealed from 
view by a canvas bearing the sign "Bar closed."85 
In some jurisdictions, it is held that merely opening the door of 
the saloon does not constitute the statutory offense, unless it is kept 
79 Weidman v. People, 7 Hl. App. 38. 
89 Koop v. People, 47 Ill. 327. 
81 People v. Cox, 70 Mich. 247, 38 N. 
W. Rep. 235. 
82 Monses v. State, 78 Ga. 110. 
83Kroer v. People, 78 Ill. 294; People 
v. Cummerford, 58 Mich. 328, 25 N. W. 
Rep. 203. See People v. Beller, 73 
Mich. 640, 41 N. W. Rep. 827. 
84People v. Higgins, 56 Mich. 159, 22 
N. W. Rep. 309; People v. Cox, 70 Mich. 
247, 38 N. W. Rep. 235; Harvey v. 
State, 65 Ga. 568. 
85 Hussey v. State, 69 Ga. 54. 
461 § 394 
LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
open as on secular days, i. e., for tippling purposes.86 And it may be 
admitted that, when no drinking is permitted or intended, the place 
is not open in its character as a saloon or tippling-house. But, in 
general, the authorities recognize no such distinction as this. If the 
place is in fact a bar-room or saloon, and if it is open and accessible 
to the public, that is enough. The purpose of its being open is not 
material. Though the purpose may have been a perfectly innocent 
and harmless one, that does not lessen the criminality of the act.87 
Thus, under the Michigan statute, it is a violation of the law if the 
saloon was open for the purpose of being cleaned, although no liquor 
was sold.88 But the opening of a bar-room on Sunday, not for the 
purpose of dispensing liquor, but in response to the knock of an 
officer, to allow him to search for a person, although a crowd follows 
him into the bar, is not a violation of the statute.89 In Connecticut, 
where the statute forbids the keeping open, on certain days, of any 
place where intoxicating liquors are "reputed" to be sold, it is held 
that the reputation applies to any time, and to sales lawfully made 
under a license.90 And the statute may include an entire hotel hav- 
ing such reputation, although liquor may not have been sold in all its 
rooms; but the house may yet be kept open on Sundays for board- 
ers and travelers.91 An ordinance, which provides that no licensed 
tavern keeper shall expose intoxicating liquors for sale on Sunday, is 
not violated by merely having liquors exposed at the bar, without 
some affirmative act offering to make sale of them.92 
§ 394. Illegal Transportation of Liquors. 
In several of the states we find statutes prohibiting the transpor- 
tation of liquors from place to place, having knowledge, or reason- 
able cause for belief, that they are intended for unlawful sale. This, 
86Patten v. Centralia. 47 Ill. 370. 
87 Klug v. State, 77 Ga. 734; Hall v. 
State, 3 Ga. 18; Monses v. State, 78 Ga. 
110. See, also, Croell v. State, 25 Tex. 
App. 596, 8 S. W. Rep. 816. 
88 People v. Waldvogel, 49 Mich. 337, 
13 N. W. Rep. 620. 
88Miller v. State, (Miss.) 9 South. Rep. 
289. 
90 State v. Cady, 47 Conn. 44. 
91 State v. Ryan, 50 Conn. 411. 
92Houtsch v. Jersey City, 29 N. J. 
Law, 316. 
462 Ch 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 395 
it is held, includes the conveyance of liquors from one place to 
another in the same town,93 as their carriage from wholesale to retail 
dealers in the same city.94 And if common carriers are criminally 
prosecuted for the transportation and delivery of liquor, under these 
statutes, it is no defense to allege that they acted merely as agents or 
carriers and were compelled to do what they did. For the law neither 
requires nor permits common carriers to do illegal acts, and they are 
not bound to transport any particular commodities, if thereby they 
incur a penalty.95 Where the act forbids the conveyance of liquors 
by express companies or their employes, common carriers or their 
employes, "or any other person," it is held that the driver of a team 
for one who undertakes with his own wagons to deliver liquors is 
punishable, the driver being within a class of like kind with those 
enumerated to which the words quoted refer.96 Where the prohibi- 
tion is against "receiving for conveyance liquors unlawfully sold or 
intended for unlawful sale," the offense consists in receiving for the 
purpose of conveying to a purchaser, and thus completing the intended 
sale; and as the purchaser's intention in regard to the liquor is 
immaterial, it is not necessary that he should be named, or that his 
authority to sell should be negatived in the complaint.97 And where 
defendant is charged with bringing liquors into a city, having reason- 
able cause to believe the same were intended to be sold in violation of 
law, it is proper to receive evidence of the general reputation of the 
consignee as a liquor-seller and of the discoveries made on a search of 
his premises by an officer.98 
§ 395. Introduction of Liquor into Indian Country. 
By the laws of the United States it is made a criminal offense to 
introduce or attempt to introduce any ardent spirits, spirituous liq- 
uors, or wine, into the Indian country." This legislation is enacted 
"Comm. v. Waters, 11 Gray, 81. 
94 State v. Campbell, 76 Iowa, 122, 40 
N. W. Rep. 100. 
"State v. Goss, 59 Vt. 266, 9 Atl. 
Rep. 829. 
96 State v. Campbell, 76 Iowa, 122, 40 
N. W. Rep. 100. 
87 Comm. v. Locke, 114 Mass. 288. 
98 Comm. v. Harper, 145 Mass. 100, 13 
N. E. Rep. 459. 
"Rev. St. U. S. § 2139. See, also, 
Act Congr. July 4, 1884, c. 180, § 4, 
(Supp. to Rev. St. U. S., Edn. 1891, 
p. 450.) 
463 § 396 
LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
in virtue of the constitutional power of congress to regulate commerce 
with the Indian tribes; and it is held that congress may not only 
prohibit the unlicensed introduction and sale of liquors in the Indian 
country, but may extend such prohibition to territory in proximity to 
that occupied by Indians.100 An Indian agent, in carrying out the pro- 
visions of this law, is justified in seizing the property of a third per- 
son, which is being used by the person making such introduction of 
liquors as a means to his purpose.101 But it is ruled that the act of 
congress referred to is not violated by the transportation of ardent 
spirits as an article of commerce through an Indian country, between 
places outside the same.102 
§ 396. Importation of Liquor into Alaska. 
By an act of congress entitled "An act providing a civil govern- 
ment for Maska," it is declared that "the importation, manufacture, 
and sale of intoxicating liquors in said district, except for medicinal, 
mechanical, and scientific purposes, is hereby prohibited, under the 
penalties which are provided in section 1955 of the Revised Statutes 
for the wrongful importation of distilled spirits. And the President 
of the United States shall make such regulations as are necessary 
to carryout the provisions of this section."103 The section of the 
Revised Statutes here referred to was construed by the courts as 
absolutely prohibiting the introduction of spirituous liquor or wine 
into Alaska, subject to the power of the war department to permit 
the same for the use of the army, and the power of the President to 
permit the introduction of distilled spirits, but not wine, for any pur- 
pose.104 It is probable, however, that these provisions must be 
100 United States v. 43 Gallons of 
Whisky, 93 U. S. 188. And see Amer- 
ican Fur Co. v. United States, 2 Pet. 358; 
United States v. Shaw-Mux, 2 Sawy. 
364; United States v. Holliday, 3 Wall. 
407. As to what constitutes the Indian 
country, see Forty-Three Cases Cognac 
Brandy, 14 Fed. Rep. 539, and note; 
United States v. Leathers, 6 Sawy. 17; 
United States v. Sturgeon, Id. 29; Kie 
v. United States, 27 Fed. Rep. 351. 
101 Webb v. Nickerson, 11 Oreg. 382, 
4 Pac. Rep. 1126. 
102 United States v. 29 Gallons of 
Whisky, 45 Fed. Rep. 847. 
103 Act Congr. May 17, 1884, c. 53, § 14, 
(Supp. to Rev. St. U. S., Edn. 1891, p. 
435.) 
104 United States v. Stephens, 12 Fed. 
Rep. 52. 
464 § 397 
Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
regarded as superseded by the act of 1884. As the later act "covers 
the whole ground, the most reasonable conclusion is that it super- 
sedes or repeals all former laws on the subject of intoxicating liquors 
in Alaska."105 Under the earlier statute, which made criminal the 
attempt to introduce such liquors into that district, it was held that 
a person resident in Alaska, who ordered a hundred gallons of whisky 
to be shipped to him at Alaska by a wholesale dealer in San Fran- 
cisco, who had the whisky on hand and for sale, with intent to intro- 
duce the same into Alaska, was not guilty of such attempt, because 
he had done ho act to accomplish the illegal intent of which the law 
would take cognizance, the offer to purchase the liquor, and even the 
purchase itself, being acts preparatory and indifferent in their char- 
acter.106 
§ 397. Bell-Punch Law. 
The "bell-punch" or "register" is an automatic contrivance for 
registering the number of drinks sold at a saloon. Its use is enjoined 
upon all liquor-sellers, in certain of the states, in order that the 
amount of business done by each may be ascertained and the amount 
of tax he must pay adjusted accordingly; and it is made a penal 
offense to sell liquor without registering the sale. The constitution- 
ality of such statutory provisions has been sustained.107 After the 
enactment of a statute prescribing the use of such registers, but 
before the registers are supplied to dealers, one who sells liquor 
unlawfully is not liable to the punishment denounced by that statute, 
but only to such punishment as may have been imposed by former 
revenue laws.108 An indictment under such statute, for selling a 
drink of whisky and failing to turn the crank of the proper register, 
is not supported by proof that the defendant's bar-tender sold the 
drink in his absence, there being no proof of complicity of the defend- 
ant therein.109 
106 Nelson v. United States, 30 Fed. 
Rep. 112. In this case, the federal cir- 
cuit court in Oregon examined and sus- 
tained the constitutionality of the act 
of 1884. 
100 United States v. Stephens, 12 Fed. 
Rep. 52. 
107 Albrecht v. State, 8 Tex. App. 216. 
108 Marxhausen v. Comm., 29 Gratt, 
853. 
109 Gaiocchio v. State, 9 Tex. App. 
387. 
INTOX.LIQ. 30 
465 § 399 
LAW OF INTOXICATING LIQUORS. 
[Ch. 17 
§ 398. Employment of Women in Saloons. 
In certain of the states, statutes have been enacted prohibiting the 
employment of women in drinking-saloons "as waiters or conversa- 
tionalists." Where the proprietor of a saloon, immediately upon the 
passage of such a statute, discharged her female employes and then 
entered into a partnership with them, it was held that this was an 
indictable infraction of the spirit of the law. And it was further 
held that there was no misjoinder in not entering a separate indict- 
ment for each female employed; and that the indictment need not 
show that no employe was within the proviso as to a wife or daughter 
of the employer.110 
§ 399. Manufacture of Liquor. 
Where the manufacture of malt or spirituous liquors has not been 
prohibited by legislative enactment, or a license required for such 
manufacture, or a duty or impost laid thereon, such manufacture is 
a lawful business and pursuit; and the sale in packages or casks, 
according to the custom among brewers or distillers, is lawful, for 
the authority to make implies the authority to sell, unless a legisla- 
ture shall have expressly enacted to the contrary.111 But in those 
states where the system of prohibition is in force, the manufacture 
of liquor is not permitted, except by persons who have obtained a 
permit and who comply with certain conditions. Hence, for exam- 
ple, where the statute prohibits the manufacture of distilled liquor, 
one may not distill cider brandy, even for his own use or to sell 
according to law.112 A conviction of a distiller, for making, at his 
distillery, a sale of spirits which was unlawful when made, is good, 
although, before the trial, a law was passed authorizing like sales.113 
110 Walter v. Comm., 88 Pa. St. 137. 
See, also, Bergman v. Cleveland, 39 
Ohio St. 651; In re Maguire, 57 Cal. 604, 
40 Am. Rep. 125. 
m Scanlan v. Childs, 33 Wis. 663. 
112 State v. Lovell, 47 Vt. 493. 
113 Acree v. Comm., 13 Bush, 353. 
466 Ch. 17] 
CRIMES AND OFFENSES UNDER LIQUOR LAWS. 
§ 401 
§ 400. Being Drunk in a Public Place. 
Where the defendant in a criminal prosecution is charged with a 
violation of a statute providing that "whoever is found in any public 
place in a state of intoxication shall be fined," etc., it is error to 
charge that the defendant is not guilty if, under a physician's pre- 
scription, he took liquor which caused him in good faith to become 
intoxicated in a public place.114 
§ 401. Distinct Offenses in One Act. 
In prosecutions for the violation of the liquor law, where the liquor 
is furnished in answer to a simple call, at the same time, and by a 
single act, it can constitute but one act of furnishing, and the party 
incurs but one penalty, although it may be drunk by more than one 
person.115 But the retailing of liquors to two distinct persons, though 
at the same time and place, constitutes tw7o distinct offenses.116 And 
as each sale of liquor without a license constitutes a distinct and 
separate offense, different and distinct offenses may be committed by 
selling to the same persons at different times.117 
114 State v. Sevier, 117 Ind. 338, 20 N. 
E. Rep. 245. 
115 State v. Barron, 37 Vt. 57. 
116 Comm. v. Dove, 2 Va. Cas. 26. 
117 State v. Small, 81 Mo. 197. 
467 § 402 
LAW OK INTOXICATING LIQUORS. 
[Ch. 18 
CHAPTER XVIII. 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 402. The Offense Statutory. 
403. What Constitutes a Sale. 
404. Sales on Credit. 
405. Devices to Conceal a Sale. 
, 406. Sale Distinguished from Gift or Barter. 
407. Giving Liquor in Kindness or Hospitality. 
408. Acting as Agent for Buyer. 
409. Sale of Liquor without License. 
410. Sale without License not a Continuing Offense. 
411. Sales Exempted from License Law. 
412. Unlicensed Sales for Medical Uses. 
413. Sales for Purposes not Authorized by License. 
414. Sales in Prohibited Quantities. 
415. Sale of Liquor to Minors. 
416. Knowledge of Minority as a Statutory Element of Offense. 
417. Ignorance of Minority of Purchaser as a Defense. 
418. Mistake of Fact Held no Defense. 
419. Consent of Parent or Guardian. 
420. Sale to Minor as Agent or Messenger for an Adult. 
421. Adult "Treating" Minor. 
422. Purchase by Adult as Agent of Minor. 
423. Sale of Liquor to Intoxicated Person. 
424. Sales to Habitual Drunkards. 
425. What Constitutes Intemperate Habits. 
426. Seller's Knowledge of Purchaser's Habits. 
427. Sale of Liquor to Indians. 
428. Sale of Liquor on Sunday. 
429. Sunday Sales to Lodgers or Guests. 
430. Sale of Liquor on Election-Days. 
431. Sale of Liquor on Public Holidays. 
432. Sale after Lawful Hours. 
433. Sales in Prohibited Places. 
434. Sales Made out of Terrtory Covered by License. 
435. Sales near Churches. Schools, Fairs, etc. 
§ 402. The Offense Statutory. 
If the sale of a quantity of intoxicating liquor, under any circum- 
stances, constitutes a criminal offense, it is because it is prohibited 
468 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 403 
and made punishable by the terms of a statute. Hence, for example, 
if the local law provides a penalty for the sale of liquor "as a bever- 
age," an indictment which charges the defendant with selling "mali- 
ciously and willfully" does not state an offense; for that is not the 
crime described in the statute, and the act of selling, as alleged, 
does not amount to a misdemeanor at common law.1 On the same 
principle, if the statute requires each "dealer" in liquors to pay a tax 
to the state, the act of making a single sale of an entire stock of liq- 
uors, without paying the tax, is not a violation of the law; for "a 
' dealer ' is one who makes successive sales as a business."2 It is a 
general rule, therefore, that if a sale of intoxicating liquor is made the 
basis of a prosecution, the act complained of must be shown to be 
within the specific terms of some va'id and operative statute. While 
the laws prohibiting sales of intoxicants under particular circum- 
stances, or for particular purposes, cannot constitutionally apply to 
transactions completed before their passage, and which were inno- 
cent at the time, there is no reason why they should not prevent 
the future sale of property already in existence when they were 
enacted.3 
§ 403. What Constitutes a Sale. 
In most, if not all, of the states, the statutes prohibit the "sale" 
of intoxicating liquors under certain circumstances. At first sight, 
it appears that there should be no difficulty in construing and apply- 
ing this term. But there are a great variety of cases in which the 
property and possession of liquors are transferred from one person 
to another, which do not come within the legal and technical mean- 
ing of the word "sale," and yet are obviously within the mischiefs 
intended to be remedied by the statute. In such instances, if the 
statute in terms specifies no other kinds of transfer than sale, the 
courts are confronted with embarrassing questions. And in numer- 
ous cases they have chosen to carry out the presumed intention of 
the legislature, by sustaining convictions on evidence of any transfer 
1 State v. Hafsoos, (S. Dak.) 47 N. W. 
Rep. 400. 
2 Overall v. Bezeau, 37 Mich. 506. 
8Stickrod v. Comm., 86 Ky. 285, 5 S. 
W. Rep. 580. 
469 § 403 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
of the prohibited commodity for value, though at the expense of dis- 
torting the familiar legal term beyond recognition. Thus, in Massa- 
chusetts, it has been held that a delivery of beer upon an agreement, 
express or implied, that other beer should be returned in payment 
for it, constitutes a sale of the liquor;4 and that an exchange of intox- 
icating liquors, by a distiller, for grain from which to distill such liq- 
uor, is a sale, whether the liquor is delivered at the time of receiving 
the grain or afterwards;6 and also that a delivery and receipt of such 
liquor, as payment for services performed, may be treated as a sale 
for the purposes of the statute.6 And in another state we find the 
remarkable ruling that a delivery of whisky as compensation for the 
use of a buggy, in performance of an agreement so to do, is a sale of 
the whisky.7 We think these decisions cannot be sustained on prin- 
ciple. "Sale," we are told, "is a word of precise legal import, both 
at law and in equity. It means, at all times, a contract between 
parties to give and to pass rights of property for money, which the 
buyer pays or promises to pay to the seller for the thing bought and 
sold."8 And where the legislature has used a word of precise legal 
import, and has forborne to use other legal and technical terms, 
which might have been used, and which would be exactly descriptive 
of other well-known varieties of transfer of property, then,-having 
due regard to the rule that penal statutes are to be construed strictly, 
and to the rule that technical terms are to be understood in their 
technical sense, and to the maxim express io unins est exclusio alterius, 
-it is difficult to see any justification for the courts in adding to the 
enacted law by making the word "sale" include barters, gifts, and 
the payment of hire or wages in liquor. Other cases which have 
arisen under statutes of this character have presented less difficulty. 
Thus, it is held that a recovery in trespass of the value of liquors, 
held for unlawful sale, transfers the title to them to the defendant 
4 Comm. v. Abrams, 150 Mass. 393, 23 
N. E. Rep. 53. 
6 Comm. v. Clark, 14 Gray, 367. 
6 Mason v. Lothrop, 7 Gray, 354. If a 
person has taken liquor in payment for 
work done, in the absence of any prior 
agreement to do the work for the liq- 
uor, there may be some reason for hold- 
ing the transaction a sale. Bescher v. 
State, 32 Ind. 480. 
7 Paschal v. State, 84 Ga. 326, 10 S. E. 
Rep. 821. 
8 Williamson v. Berry, 8 How. 495, 
544. 
470 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 403 
by the mere operation of law, and does not constitute a sale "by any 
person or persons," within the prohibition of the statute.9 So the 
administering of liquors, as a medicine, to a patient by a physician, 
could not properly be denominated a sale.10 So, where a minor had 
in his possession two pool-checks, which the defendant had sold to 
some one else for a price, redeemable in beer at the bar, and the 
minor exchanged the checks for beer, it was held to be no evidence 
of a sale to the minor.11 But on the other hand, where one receives 
sundry drinks of liquor in payment of a certain sum, under an agree- 
ment that the seller shall have credit for each drink, and so on until 
the debt is satisfied, it is a violation of the statute.12 
It is not necessary, to constitute a sale of liquor under the statute, 
that the liquor should be the only article transferred between the 
parties, or that the price paid for it should be severable from that 
paid for other commodities included in the same purchase.13 And 
the offense is complete when the vendor delivers the liquor, although 
the purchaser does not drink nor intend to drink the entire glass; 
his motive in buying the liquor, and the disposition he makes of it, 
are alike immaterial.14 
As to the character of the vendor, it is not necessary that the per- 
son prosecuted for the act of selling should have owned the liquor, or 
have had the authority from the owner to sell it.15 And one who 
receives money and delivers liquor therefor may be treated as the 
seller, if no other person filling that character in the transaction is 
pointed out by the evidence.16 Conversely, if a customer helps him- 
self to goods in a store, and places the price within reach of the 
salesman, and be receives it and puts it with the money of the owners, 
that is a sale by the owners, if they assent.17 So an express agent 
9 Hamilton v. Goding, 55 Me. 419. 
10 Schaffner v. State, 8 Ohio St. 642. 
11 Massey v. State, 74 Ind. 368. 
12 State v. Poteet, 86 N. Car. 612. 
13 Comm. v. Worcester, 126 Mass. 256. 
14 Dillman v. People, 4 N. Y. Week. 
Dig. 251; Comm. v. Geary, 146 Mass. 
139, 15 N. E. Rep. 363. 
16State v. Wadsworth, 30 Conn. 55. 
16 Paschal v. State, 84 Ga. 326,10 S. E. 
Rep. 821. In a prohibition county, one 
who receives money from another with 
a request to procure whisky, and who 
shortly afterwards delivers the whisky, 
may be treated as the seller, if no other 
person filling that character appears, 
and it is not shown where, how, or from 
whom the whisky was obtained. Grant 
v. State, (Ga.) 13 S. E. Rep. 554. 
17 State v. Wiggin, 20 N. H. 449. 
471 § 404 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
who receives a C. O. D. package, known by him to contain intoxicat- 
ing liquor, is criminally guilty of selling when he delivers the 
package, receives the price, and transmits it to the consignor.18 And 
under a statute imposing a fine upon "any person who, without a 
license therefor, shall, by sample, by soliciting or procuring orders, 
or otherwise, sell" intoxicating liquors, a commercial traveler for a 
firm in another state, who merely takes an order from a dealer in the 
state of the forum, and forwards it to his firm, who deliver the liquor 
in their state, is guilty of an offense.19 
§ 404. Sales on Credit. 
On the trial of an indictment for unlawfully selling liquor, an 
actual delivery of the liquor must be proved, and evidence of a mere 
agreement to sell is not sufficient. But it is not necessary to aver or 
prove that the liquor was paid for; because a sale on credit is as 
much a violation of the law as a sale for cash.20 And "the inability 
of the seller to coerce payment by legal process does not, in contempla- 
tion of the statute, so far change the character of the transaction as 
to prevent it from being considered a sale. It is not a gift, for there 
is an expectation that the price will be paid."21 Hence it is not 
necessary, to consummate the sale, that the liquor should be handed 
out in response to a call for it, or that it should be paid for by, or 
charged to, some person, if there was an understanding or expecta- 
tion of payment.22 So, one playing a game with three persons who 
severally lose, under an agreement that each loser shall treat, is liable 
for three distinct sales, if he furnishes the liquor for the treats, 
although no settlement or payment is made until the playing is con- 
18 state v. Goss, 59 Vt. 266, 9 Atl. Rep. 
829, 59 Am. Rep. 706. 
19 State v. Ascher, 54 Conn. 299, 7 
Atl. Rep. 822. In this case, Carpenter, 
J., said: "The word 'sell' is used in 
the same sense in which it is generally 
used by business men in relation to this 
subject-matter. In common language, 
a drummer sells goods; he sells by sam- 
ple; he sells by soliciting and procuring 
orders; the dealers sell by drummers as 
their agents. " 
20 Riley v. State, 43 Miss. 397; Comm, 
v. Burns. 8 Gray, 482; State v. Green- 
leaf, 31 Me. 517; Emerson v. Noble. 32 
Me. 380; Perkins v. State, (Ala.) 9 South. 
Rep. 536. 
21 Emerson v. Noble, 32 Me. 380. 
22 Kimball v. People, 20 Ill. 348. 
472 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 405 
eluded.23 And under a statute which prohibits the selling, bartering, 
or disposing of, intoxicating liquors, it is held that if one sells liquor, 
it is not material whether it is paid for at all. It would not be a 
violation of the statute for one to give away liquor without any expec- 
tation of compensation. But if there is an understanding, express 
or implied, that the party who obtains the liquor will pay for it, or 
will purchase something else because of it, the act is disposing of the 
liquor within the meaning of the statute.24 
§ 405. Devices to Conceal a Sale. 
In any case where a sale or gift of liquor would be contrary to law, 
the courts will refuse to countenance any trick, artifice, or subterfuge 
intended to evade the law. However the parties may disguise or con- 
ceal the transaction, whatever verbal or circumstantial device they 
may employ to cloak the real purpose, it is enough to sustain a con- 
viction if liquor was actually sold or given in violation of the law or 
evasion of its terms.25 Thus, a device by which one pretends to sell, 
and the other to buy, turpentine, when whisky is in fact intentionally 
sold, is not effective as an evasion of the law.26 So, where the defend- 
ant kept cigarettes for sale, and invited purchasers of them to drink 
whisky with him, it was held that if the price asked for the cigarettes 
was intended to cover the price of the whisky, which was afterwards 
nominally given to the purchaser, the transaction was a sale of the 
whisky as well as of the cigarettes.27 So a defense that the prisoner, 
who was a butcher, sold some beef to the complaining witness, and 
gave him some whisky without compensation, is not sustained where 
the evidence shows that the witness applied to buy whisky and not beef, 
and that the latter article was not worth the money paid, and was 
not delivered at the time.28 On the same principle, it is a question 
of fact for the jury whether the giving away of liquor by a grocer, 
23 Comm. v. Hogan, 97 Mass. 120. 
24 State v. Cutting, 3 Oreg. 260. 
25 Looney v. State, 43 Ark. 389; Rabe 
v. State, 39 Ark. 204; Archer v. State, 
45 Md. 33; Comm. v. Thayer, 8 Mete. 
(Mass.)525; State v. McMinn, 83 N. Car. 
668. 
26 Looney v. State, 43 Ark. 389. 
27 Archer v. State, 45 Md. 33. 
28 Marcus v. State, 89 Ala. 23, 8 South. 
Rep. 155. 
473 § 406 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
alleged to be with a view to increase his custom for groceries, is or is 
not a mere device to evade the liquor law.29 In one of the cases, the 
evidence showed that defendant had a room, wherein was a table 
with a hole in the top, and a vessel on it containing liquor; that at 
sundry times the witness went into the room, poured out a drink of 
liquor ,and, having drunk it, dropped some money, at the rate of five 
cents for a drink, into the hole; that defendant was present, and 
nothing was said by him or by the witness. It was held that the 
court rightly charged that, if the jury should believe from the testi- 
mony that the liquor was the property of the defendant, and that he 
received the money put into the hole by the witness as payment there- 
for, and that this was a device to evade the statute against retailing, 
the defendant was guilty.80 So, where two persons went into a room 
above a saloon, and placed ten cents each on a dumb-waiter, and 
stepped into an adjoining room for a few minutes, and when they 
came back they found two glasses of beer and some cigars on the 
waiter and the money gone, and they drank the beer, it was held a 
joint sale of the beer.31 But if the witness merely helped himself to 
the liquor and left some money, and it is not shown that the defend- 
ant was present, or knew of it, or received the money, there is not 
enough to convict.82 And in a case where the defendant took some 
whisky from his wagon and gave to certain persons, saying that he 
had some for his friends but not for sale, and the drinkers threw 
some money on to the wagon-seat, but did not see defendant take it, 
it was held that a verdict for defendant should not have been set 
aside.83 
§ 406. Sale Distinguished from Gift or Barter. 
Inasmuch as sale, which means a transfer of property for a price 
in money, is an entirely different thing from a gift, which signifies a 
gratuitous transfer without an equivalent, it follows that if the stat- 
ute prohibits merely the sale of liquor, to give it away is not an indict- 
29 Kober v. State, 10 Ohio St. 444. 
30 State v. McMinn, 83 N. Car. 668. 
31 Henry v. State, 113 Ind. 304, 15 N. 
E. Rep. 593. 
32 State v. Ferrell, 22 W. Va. 759. 
83 State v. Cooper, 26 W. Va. 338. 
474 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 406 
able offense. And under an indictment which charges a sale, if the 
evidence shows merely a gift, there can be no conviction.34 For 
example, testimony of a witness that he had called for liquor at a 
public-house kept by defendant, and that a waiter, by defendant's 
order, delivered it to him; that the witness never paid the defendant 
or the waiter; that he offered to pay, but defendant declined to take 
anything, is no evidence of a sale of the liquor.35 And conversely, 
evidence to prove a sale, or from which a sale may be inferred, will 
not sustain a conviction upon a charge of giving away liquor.36 And 
what is true of the distinction between a sale and a gift is equally 
true of the distinction between a sale and a barter. An indictment 
for selling liquor unlawfully is not sustained by evidence which 
establishes a barter or exchange.37 If the terms of the statute 
are broader than those above indicated, different questions will arise. 
Thus, in Oregon, under a statute providing that no person should 
"barter, sell, or dispose of in any manner, any spirituous liquors," 
etc., it has been held error to instruct the jury that if the liquor was 
given gratuitously, it would sustain the indictment equally as if it had 
been sold and paid for.38 Perhaps this decision may be sustained on 
the theory that the "disposing" intended by the statute is a disposing 
analogous to a sale or exchange, that is, for a valuable equivalent. 
But an opposite conclusion has been reached by the court in Minne- 
sota.39 In some other states, the statute uses the comprehensive ex- 
pression "sell or furnish." And it is held that a conviction may be 
had for furnishing liquor unlawfully, although the facts do not show 
a sale, or do show a gift.40 
34 Siegel v. People, 106 Ill. 94; Young 
v. State, 58 Ala. 359; Williams v. State, 
(Ala.) 8 South. Rep 668; Stevenson v. 
State, 65 Ind. 409; Holley v. State, 14 
Tex. App. 505; Gillan v. State, 47 Ark. 
555, 3 S. W. Rep. 185; State v. Briggs, 
(Iowa,) 47 N. W. Rep. 865; McGruder 
v. State. 83 Ga. 616, 10 S. E. Rep. 281. 
In Indiana, it is held that the question, 
whether intoxicating liquor, delivered 
by an unlicensed saloon-keeper to one 
who received and drank it, was intended 
by the parties to be the subject of a 
sale or of a gift, is a question of fact to 
be determined by all the evidence. 
Keiser v. State, 82 Ind. 379. 
35 Comm. v. Packard, 5 Gray, 101. 
86 Harvey v. State, 80 Ind. 142. 
87 Gillan v. State, 47 Ark. 555, 2 S. W. 
Rep. 185; Stevenson v. State, 65 Ind. 
409. 
88 Wood v. Territory, 1 Oreg. 223. 
89 State v. Deusting, 33 Minn. 102, 22 
N. W. Rep. 442, 53 Am. Rep. 12. 
40 Dukes v. State, 77 Ga. 738; State v. 
Freeman, 27 Vt. 520. 
475 § 407 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
§ 407. Giving Liquor in Kindness or Hospitality. 
The provisions of the liquor laws being aimed at the suppres- 
sion of an illicit or injurious traffic in intoxicants, it is considered that 
a person is not liable to indictment for furnishing liquor to a friend 
or guest, at his private residence, as an act of kindness or hospital- 
ity.41 On a similar principle, where an innkeeper gratuitously fur- 
nished whisky at his bar to his domestic servant, who had been sit- 
ting up late at night in the performance of his duties, it was held that 
this was not a violation of the statute.42 But as doubts have some- 
times arisen as to whether such cases might not come within the 
terms of some of the more stringent and comprehensive statutes, the 
legislatures in some of the states have made express exceptions in 
favor of those who might supply liquor to their friends, not in the 
way of business, but in the spirit of hospitality. Thus, in Kentucky, 
there is a proviso that the act shall not apply to those who give or 
furnish liquor to their invited guests at their own households. And 
in a case where the defendant invited an acquaintance into his house 
three or four times, and there gave him a drink of liquor; and on a 
few occasions he invited another acquaintance, who was working for 
him, when in his house, to take a drink, and occasionally the party 
suggested it himself; and all the drinking was done in the family room, 
and while the parties were there by the defendant's request; it was 
held that this came within the proviso.43 In Vermont, the statute con- 
tains a proviso that "the words 'give away,' where they occur in this 
chapter, shall not apply to the giving of intoxicating liquor at private 
dwellings or their dependencies, unless given to an habitual drunk- 
ard, or unless such dwelling or its dependencies become a place of 
public resort." But it is ruled that a person who gives away liquor 
in a room in which no business is conducted, but which is not his 
41Reynolds v. State, 73 Ala. 3; Al- 
brecht v. People, 78 Ill. 510; State v. 
Standish, 37 Kans. 643, 16 Pac. Rep. 66. 
42 State v. Jones, 39 Vt. 370. But the 
gratuitous furnishing of intoxicating 
liquor to musicians employed by the 
innkeeper on the occasion of a dance 
at his house, was held to be an offense 
under the statute. Id. 
43Powers v. Comm., (Ky.) 13 S. W. 
Rep. 450. 
476 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 409 
dwelling, violates the statute.44 In Iowa, it is no offense to give liq- 
uor to an adult person, who is not intoxicated nor in the habit of be- 
coming so, when such gift is without consideration received or expected 
in return, and without subterfuge or attempt to evade the provisions 
of the statute.45 
§ 408. Acting as Agent for Buyer. 
In prosecutions under the liquor law, a defense is sometimes inter- 
posed to the effect that the prisoner was not the seller of the liquor, 
but merely acted as the agent or intermediary of the buyer. This 
always raises a question of fact, which must be determined from the 
whole evidence. It is said that mere proof of the procurement and 
delivery of liquor by one person to another at the latter's request, is no 
evidence of an unlawful sale.46 And in a case where the evidence was 
that the witness applied for liquor to the defendant, who told him he 
could not get it unless he had a bottle, whereupon the witness fur- 
nished him a bottle, and after a short absence he returned with the 
liquor, and told the witness he should have to ask him a small sum 
for getting it, which was paid, it was held that the jury had a right 
to consider the hypothesis that the transaction might have been in 
good faith, the defendant acting as the agent of the witness in making 
the purchase, and that it was error to instruct them to find the 
defendant guilty if they believed the evidence.47 The fact that one is 
a grocer raises no presumption of wrong-doing against him in his 
purchasing a barrel of whisky for a customer, and charging for it 
what he paid.48 
§ 409. Sale of Liquor without License. 
When the liquor-statutes of a given state provide a system of grant- 
ing licenses, and prohibit all persons from selling intoxicants with- 
out procuring such license, under penalty of being guilty of a misde- 
44 State v. Danforth, (Vt.) 19 Atl. Rep. 
229. 
45 State v. Hutchins, 74 Iowa, 20, 36 
N. W. Rep. 775. 
46 State v. Thomas, 13 W. Va. 848. 
47 State v. Taylor, 89 N. Car. 577. 
48 United States v. Howell, 20 Fed. 
Rep. 718. Compare State v. Buck, 37 
Vt. 657. 
477 § 409 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
meaner, the obtaining of a license is an absolute prerequisite to the 
right to sell; no substitute for it will avail, and no excuse for a fail- 
ure to obtain it will be heard. If no licenses whatever were granted 
in a given district, any person who sells liquor in that district is 
indictable. And it is of no consequence for what reason the licenses 
were refused, or whether the withholding of them was rightful or 
wrongful.49 So where a local option law is submitted to the popular 
vote, after a town has voted against license, an indictment may be 
found for selling in the town without license.60 And although the 
town has voted in favor of license, that will not justify a person in 
selling until he has proceeded to take out a license; nor is the lia- 
bility of such person affected by the fact that the county commis- 
sioners of the county in which the sale is made refuse to grant license 
to any person whatever to sell liquor in towns which have not voted 
against license.61 And the repeal of a licensing law takes away all 
the rights of the holders of existing and unexpired licenses, so that 
thereafter they are indictable for selling, unless they comply with 
the new law.52 And a law requiring a license applies to sales of liq- 
uor owned by the seller at the time of its passage.63 But the statu- 
tory offense of selling liquor without a license is not committed by a 
mere bargain for a sale. To constitute the offense, there must be a 
completed sale which passes the property.64 But it is not necessary 
that the liquor should be the only article bought and sold between 
the parties in the same transaction, or that it should be charged for 
in a sum distinct and severable from the price paid for other things 
purchased at the same time. A keeper of a restaurant, who has no 
retail license, who sells wine only to persons taking meals at his 
restaurant, the liquor being drunk by them only while eating, is guilty 
of an indictable offense.66 And that the defendant supposed the liq- 
uor for the sale of which he is prosecuted to have been a beverage of 
49 Comm. v. Frantz, 135 Pa. St. 389, 
19 Atl. Rep. 1025; Beckham v. Howard, 
83 Ga. 89, 9 S. E. Rep. 784. And see, 
supra, §§ 119-121. 
w State v. Funk, 27 Minn. 318, 7 N. 
W. Rep. 359. 
61 State v. Cron, 23 Minn. 140. 
62 State v. Mullenhoff, 74 Iowa, 271, 87 
N. W. Rep. 329. 
68 Comm. v. Logan, 12 Gray, 136. 
64 Banchor v. Warren, 33 N. H. 183. 
65Nicrosiv. State, 52 Ala. 336; Comm, 
v. Everson, 140 Mass. 292, 2 N. E. Rep. 
839. 
478 Ch. 18] 
§ 410 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
a different character, not intoxicating, is no defense.66 And the fact 
that the sales were made in violation of the Sunday law is no 
defense to a prosecution for selling without a license.67 The expira- 
tion of a license by lapse of time, or its revocation for cause, will of 
course annul all rights formerly held under it, and will expose the 
dealer to the penalties for unlicensed selling, if he continues the bus- 
iness. In Maryland, the law allows a trader, closing his business 
after the expiration of his license, to sell his old stock of liquors 
without renewing his license. But this does not authorize him to 
sell the same in small quantities at retail. He may dispose of the 
stock at public auction, or at private sale, if by wholesale at one 
time in good faith, solely for the purpose of closing his business and 
not in the continued prosecution of it.68 
§ 410. .Sale without License not a Continuing Offense. 
We have seen that the authorities hold that proof of a single sale 
of intoxicating liquor is not sufficient to charge the party with the 
offense of "engaging in," "pursuing" or "carrying on, the business 
of" a liquor-seller, unless, perhaps, where it is coupled with proof of 
an intent to continue the traffic; in general, a greater number of 
sales than one must be shown in order to secure a conviction.69 But 
where the statute provides that no person shall "sell intoxicating 
liquors" without a license, it describes an offense which may be com- 
mitted by a single act, and which is not a continuing offense, in any 
such sense that a repetition of the act or an intention to repeat it is 
an essential element of the crime. Consequently, under such a stat- 
ute, a single sale of liquor, made without the protection of a license, 
constitutes the offense and will sustain a conviction.60 
66Comm. v. Daly, 148 Mass. 428, 19 N. 
E. Rep. 209. 
67 O'Brien v. State, (Ala.) 8 South. 
Rep. 560. 
6bForwood v. State, 49 Md. 531. 
69 Blackwell v. State, 45 Ark. 90; Mill- 
er v. State, 3 Ohio St. 475; Merritt v. 
State, 19 Tex. App. 435; Halfin v. State, 
18 Tex. App. 410; Bryant v. State, 46 
Ala. 302; Moore v. State, 16 Ala. 411; 
Ramsey v. State, 11 Ark. 35. Supra, § 
386. 
60 State v. Chandler, 15 Vt. 425; State 
v. Bugbee, 22 Vt. 32; State v. Paddock, 
24 Vt. 312; State v. Cassety, 1 Rich. 90; 
State v. Glasgow, Dudley, 40; Frese v. 
State, 23 Fla. 267, 2 South. Rep. 1; Dan- 
sey v. State, 23 Fla. 316, 2 South. Rep. 
479 § 412 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
§ 411. Sales Exempted from License Law. 
The license laws of the various states frequently contain provis- 
ions exempting from their terms persons who raise fruit and manu- 
facture wine or cider on their own property. Thus, in Missouri, a 
wine-grower is not indictable for selling wine on his own premises 
without a license, or for permitting it. to be drunk at such place.61 
So, in Massachusetts, the statute exempts from its provisions "sales 
of cider by the makers thereof," and it is held that the maker of 
cider does not put himself outside the exemption because he did not 
himself raise all the apples from which the cider was made, or because 
be had the cider made at a neighbor's mill.62 In another state, a 
similar exempting clause is held to exempt the manufacturer of wine 
from the penalty for keeping a drinking-saloon ordram-shop without 
license, as well as from the penalty for selling without license.63 In 
North Carolina, the law provides that "nothing in this section con- 
tained shall prevent any person from selling wine of his own manu- 
facture at the place of manufacture, or any person from selling 
spirits or wine, the product of his own farm, in quantities not less 
than one quart." Under this act, it is held that a person within the 
exemption may make his sales by an agent acting as such in good 
faith.64 
§ 412. Unlicensed Sales for Medical Uses. 
In a prosecution for an illegal sale of liquor, it is not a valid defense 
that the liquor was sold solely for a medical purpose, even on the 
prescription of a physician, and was so used, if the defendant had no 
license to sell, except when the statute makes an express saving in 
favor of such sales.65 
692; Kansas City v. Muhlback, 68 Mo. 
638; People v. Kropp, 52 Mich. 582, 18 
N. W. Rep. 368. 
61 State v. Jaeger, 63 Mo. 403. 
62 Comm. v. Mahoney, (Mass.) 25 N. 
E. Rep. 833. 
68 Jeffries v. State, 52 Ark. 420, 12 S. 
W. Rep. 1015. 
64 State v. Hart, 107 N. Car. 796, 12 S. 
E. Rep. 878. Tolls earned by a grist- 
mill situated on a farm are not products 
of the farm. State v. Patterson, 98 N. 
Car. 657, 4 S. E. Rep. 47. 
66State v. Brown, 31 Me. 522; Comm, 
v. Kimball, 24 Pick. 366; Leppert v. 
480 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 413 
§ 413. Sale for Purposes not Authorized by License. 
A license to sell liquors for certain purposes, specified in the act 
under which it is issued, cannot protect the holder thereof from crim- 
inal prosecution if he violates the laws of the state by selling for 
other purposes.66 Thus, a sale of liquors made by a person licensed 
to sell "for medicinal, mechanical, and chemical purposes," is illegal 
if made for any other purpose.67 And so, under the system by which 
town agents are appointed for the sale of liquor, such an agent is not 
authorized to make sales, except upon an application for a lawful 
purpose, and upon a representation reasonably inducing the belief 
that it is wanted for such purpose only. And if such an agent sells 
liquor without such an application and representation, and without 
any inquiry, and in fact the liquor is wanted and used for drink, and 
not for a lawful purpose, he is guilty of a violation of the law, as 
much as if he were not agent.68 Where sales of intoxicating liq- 
uor by the agent of one holding a permit are shown, the burden of 
showing that the sales were for authorized purposes is upon the 
defendant.69 Where the statute expressly excepts from its provisions 
physicians putting up their own prescriptions, it is a good defense 
that the liquor was sold and administered in good faith as a medi- 
cine, and whether the defendant is a physician authorized to prac- 
tice medicine under the laws of the state is a question of fact for the 
jury.70 A physician is not guilty of a violation of a statute which 
prohibits the selling of liquor within a certain district, but allows 
physicians to keep and prescribe it as a medicine, where he sells 
it for that purpose, although he fails to record the prescription in a 
book as required by the act.71 
State, 7 Ind. 300; State v. Thornburg, 16 
S. Car. 482. 
66State v. Perkins, 26 N. H. 9. 
67 Adams v. Hackett, 27 N. H. 289, 59 
Am. Dec. 376. 
68 State v. Fisher, 35 Vt. 584; State v. 
Parks, 29 Vt. 70. 
69 State v. Kriechbaum, (Iowa,) 47 N. 
W. Rep. 872. 
70 State v. Young, 36 Mo. App. 517. 
71 Sarris v. Comm., 83 Ky. 327. 
INTOX.LIQ.-31 
481 [Ch. 18 
§ 414 
LAW OF INTOXICATING LIQUORS. 
§ 414. Sales in Prohibited Quantities. 
The statutes commonly provide that wholesalers, or persons who 
are not licensed at all, shall not sell liquor in quantities less than a 
prescribed amount, or that liquor shall not be sold to be drunk on 
the premises in less than a certain quantity. And it may be 
regarded as a settled rule that although the quantity bargained for, 
sold, and paid for, may be greater than the statutory minimum, yet 
if only a portion of it is delivered at the time, and the rest is to be 
subject to the buyer's call, remaining, in the mean time, in the same 
cask or barrel and not separated from the other liquor, then the seller 
may be indicted for the sale of that portion which was delivered to the 
purchaser, if that is within the statute.72 But if the liquor sold is 
separated from the bulk out of which it is drawn, the seller is not lia- 
ble to prosecution, even though the liquor is not paid for by the pur- 
chaser at the time, but is charged as a sale on account, and though 
the purchaser takes away less than the statutory minimum, leav- 
ing the remainder, so separated, subject to his order.73 In a case 
where the defendant sold beer, aggregating several gallons, to a per- 
son who directed him to "set up the beer" to a crowd of persons, 
each of whom drank the same in glasses holding a pint, it was held 
that this would warrant a conviction under an indictment charging 
a sale in quantities less than one quart.74 And so, if two persons go 
together to a saloon, and each asks for half a pint of liquor, which is 
delivered to each one in his separate bottle, it is a separate sale of 
liquor to each, although one, at the request of the other, pays for 
both.75 But on the other hand, where A., wanting a pint of whisky, 
tried to buy it from B., who, not having any, and wanting some for 
himself, took from A. the price of a pint, added thereto enough to 
make the price of a gallon, bought a gallon from C. with the money, 
and let A. have a pint of it, it was held that this was not a violation 
72 Murphy v. State, 1 Cart. (Ind.) 366; 
Thomas v. State, 37 Miss. 353; State v. 
Kirkham, 1 Ired. 384; Richardson v. 
Comm., 76 Va. 1007; Tripp v. Hennessy, 
10 R. I. 129. 
73 Dobson v. St ate, 57 Ind. 69. See, 
also, State v. Bell, 2 Jones, (N. Car.) 
Law, 337. 
74 Klein v. State, 76 Ind. 333. 
76 Comm. v. Very, 12 Gray, 124. 
482 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 415 
of the law forbidding the sale of whisky in quantities less than one 
gallon, as it was a joint purchase, and not a sale by B. to A.76 Fur- 
ther, if several different kinds of liquor are sold to the same pur- 
chaser at the same time, it is immaterial that the quantity sold of 
each kind is less than the statutory minimum, if the entire purchase 
aggregates more than that quantity.77 As to the distinction between 
a wholesale and retail dealer, the limit of quantity which separates 
the two classes is generally defined in the statute, or is to be deter- 
mined from its terms. It has been held that a sale, by one not a 
manufacturer, of twenty-five quarts of beer, put up in quart bottles, 
to be drunk by the purchaser, is a sale at retail.78 
§ 415. Sale of Liquor to Minors. 
Most of the states, if not all, moved by the same considerations of 
public interest, have enacted statutes prohibiting the sale of intoxi- 
cating liquors to minors. As the object of these laws is to avert the 
demoralization and injury to the youth of the community which 
would surely result if the saloons were freely open to them, it has 
been thought that their language should be so restricted as to apply 
only to sales of liquor to such persons in small quantities for tippling 
purposes. In this view, a sale at wholesale, to a minor who is 
engaged in business as a merchant, would not be within the meaning 
or intent of the statute.79 The term "minor," it will be remembered, 
always designates a person under the age of twenty-one years, unless 
the local statute fixes a different age for majority. And an infant, 
whose civil disabilities as such have been removed by a decree in 
chancery, is still a minor within the meaning of the statute prohibit- 
ing sales of intoxicating liquor.80 
76 Johnson v. State, 63 Miss. 228. 
77 Browne v. Hilton, 23 Pick. 319; 
Cobb v. Billings, 23 Me. 470. 
78 Kaufmann v. Village of Hillsboro, 
45 Ohio St. 700, 17 N. E. Rep. 557. See 
Maxwell v. State, 27 Ala. 660; Lillen- 
steine v. State, 46 Ala. 498. And see, 
supra, § 23. 
79 Brosee v. State, 5 Ind. 75. But seo 
Pounders v. State, 37 Ark. 399. 
80Coker v. State, (Ala.) 8 South. Rep. 
874. A statute prohibiting the sale of 
liquor to "any student of the state uni- 
versity, or of any school, college, or 
academy, " is not restricted to sales to 
such students as are minors. State v. 
Cooper, 35 Mo. App. 532. 
483 § 415 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
The terms of the statutes on this subject, in the various states, are 
not uniform. And unless the language used is of the most compre- 
hensive description, it is not every act by which a minor is supplied 
with liquor that will constitute a punishable offense. Thus, if the 
law goes no further than to forbid the sale of intoxicants to a minor, 
this will not cover the case of a gift of liquor.81 And on the same 
principle, neither selling nor giving is included in a case where the 
transaction is shown to have been a barter or loan.82 But if the 
terms of the act are broad enough, a gratuitous supplying of liquor 
to a minor is an indictable offense.83 And in some jurisdictions, the 
law uses the very general expression "furnishing" liquor, the con- 
struction of which term has been involved chiefly in cases where the 
liquor was purchased by a third person and handed to the minor at 
his direction,-cases which will be examined in a later section. 
Though prosecutions under these statutes are usually directed 
against dealers in liquor, it is not an essential element of the offense 
that the seller should be engaged in that business. And if the stat- 
ute makes it an offense for "any person" to sell liquor to a minor, it 
is immaterial whether the defendant is a liquor-seller or not, or 
whether he is licensed or not.84 If he holds a license for the sale of 
liquors, that is no protection to him in selling to classes of persons to 
whom the law forbids sales to be made.86 And if he does not hold a 
license, he commits two offenses, and is liable to two prosecutions, in 
and for the same act; viz., selling liquor to a minor and selling liq- 
uor without a license.86 It is even held that a practising physician, 
who brings himself within the definition of a "dealer" by keeping 
liquor on hand "for the purpose of sale or profit," is guilty of a vio- 
lation of the statute if he prescribes liquor for a minor, knowing 
him to be such, although the liquor is such as, in his judgment, the 
81 Ward v. State, 45 Ark. 351; Siegel 
v. People, 106 Ill. 89. 
82 Gillan v. State, 47 Ark. 555, 2 S. W. 
Rep. 185; Cooper v. State, 37 Ark. 412; 
Coker v. State, (Ala.) 8 South. Rep. 874. 
.Supra, § 406. 
83 Simons v. State, 25 Ind. 331. 
84 State v. McGinniss, 30 Minn. 48, 52, 
14 N. W. Rep. 256, 258; Parkinson v. 
State, 14 Md. 184. 74 Am. Dec. 522; State 
v. Hamilton, 75 Ind. 238. 
85 Supra, § 151. 
86 Blair v. State, 81 Ga. 628, 7 S. E. 
Rep. 855. 
484 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 416 
minor ought to take as a medicine, and thereupon sells or gives him 
the same.87 
The ownership of the liquor given to a minor, it is said, is imma- 
terial. It is the voluntary delivery into the possession of a minor, 
with or without anything being given in consideration, that the stat- 
ute denounces and punishes.88 And the doctrine of the responsi- 
bility of a master or principal for sales to minors made by his serv- 
ant or agent is settled in accordance with the general principles 
which we have already discussed in detail. That is, the master is 
criminally liable if the sale was made in his presence, or with his 
knowledge and consent, or by his direction or authorization; but 
otherwise if made without his knowledge or consent, express or 
implied, or in disobedience to his orders given in good faith.89 As 
already intimated, several distinct offenses may be involved in the 
same act of furnishing liquor to a minor. Thus, besides the misde- 
meanor determined by the minority of the purchaser, there may be 
the offense of selling liquor without license, or of selling on Sunday, 
or of selling liquor to be drunk on the premises. And under the stat- 
ute in Massachusetts, it is held that a person may be liable to the 
several penalties prescribed for selling to a minor, giving liquor to 
him, and allowing him to loiter on the premises, on the same occa- 
sion.90 But the supplying of liquor to a minor is not made a misde- 
meanor in all the states. In some jurisdictions, the penalty pre- 
scribed is the forfeiture of a sum of money, to be recovered in a civil 
action. In those states, therefore, the act is not an indictable 
offense.91 
§ 416. Knowledge of Minority as a Statutory Element of 
the Offense. 
In prosecutions for illegal sales of liquor to minors, the defense 
most usually set up is ignorance or mistake of fact as to the age of 
87 State v. McBryer, 98 N. Car. 619, 2 
S. E. Rep. 755. 
88 Hill v. State, 62 Ala. 168. 
89 Supra, §§ 368-373. And see Peo- 
ple v. Riley, 71 Mich. 349, 38 N. W. Rep. 
922; Loeb v. State, 75 Ga. 258; O'Flinn 
v. State, 66 Miss. 7, 5 South. Rep. 390; 
Ihrig v. State, 40 Ind. 422; State v. 
Chastain, 19 Oreg. 176, 23 Pac. Rep. 963. 
90 McNeil v. Collinson, 130 Mass. 167. 
91 State v. Amor, 77 Mo. 568; State v. 
Slaughter, 17 Mo. App. 142. See State 
485 486 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
the purchaser. The general question of the availability of such a 
plea is one which has provoked much discussion and given rise to 
many conflicting rulings. This question we propose now to examine 
in detail. And first, we must direct the learned reader's attention 
to the cases where the statute defines the offense as knowingly sell- 
ing intoxicating liquor to a minor. Here the knowledge of the seller is 
an essential element of the offense, and it must be proved, either by 
direct or circumstantial evidence, that when the defendant sold the 
liquor he knew that the purchaser was a minor.92 But the defendant 
is not protected by his ignorance, if such ignorance was the result of 
carelessness or indifference. In other words, he is chargeable with 
such knowledge as would have come to him if he had exercised 
proper prudence and diligence. What facts would constitute such 
diligence is a question for the jury and not for the court. And hence 
it is error to instruct the jury that simply to ask the minor whether 
he was of age would not be the diligence required of defendant by 
law.93 Nor should the jury be instructed to judge from the appear- 
ance of the minor, as seen by them, whether the defendant had 
sufficient reason to believe that he had attained the age of twenty-one 
years.94 Neither should witnesses be permitted to testify that it was 
reasonably apparent to the observation of a prudent man that the 
purchaser was not of age.96 And it is error to permit a witness to be 
asked whether, at the time of the offense, the purchaser, by reason 
of his physical appearance, would be taken by a person of ordinary 
observation to be a minor.96 The proper question is not how the 
appearance of the person would impress the average man, or the 
ordinary observer, or the prudent man, but how it did impress the 
witness. Hence the witness may be allowed to state that, from the 
v. Dupuis, 18 Oreg. 372, 23 Pac. Rep. 
255. 
92 Hunter v. State, 18 Tex. App. 444, 
51 Am. Rep. 319; Williams v. State, 23 
Tex. App. 70, 3 S. W. Rep. 661; Perry 
v. Edwards, 44 N. Y. 223. See State v. 
McBryer, 98 N. Car. 619, 2 S. E. Rep. 
755. Evidence that the minor generally 
circulated the report that he was of age 
is admissible to show defendant's want 
of knowledge. Pressler v. State, 13 
Tex. App. 95. 
93 McGuire v. State, (Tex. App.) 15 S. 
W. Rep. 917. 
94 McGuire v. State, (Tex. App.) 15 S. 
W. Rep. 917. 
95 Walker v. State, 25 Tex. App. 448, 
8 S. W. Rep. 644. 
96 Koblenschlag v. State, 23 Tex. App. 
264, 4 S. W. Rep. 888. 
486 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 417 
minor's appearance at the time, he would have taken him to be of a 
given age.97 
§ 417. Ignorance of Minority of Purchaser as a Defense. 
Where the statute does not expressly make the knowledge of the 
purchaser's minority an essential element of the offense of selling 
liquor to him, the question fairly arises whether honest ignorance or 
mistake of fact is a good defense to an indictment for such offense. 
In several of the states (though not in all) the authorities have estab- 
lished a rule on this point which may stated in the following terms: 
If a person sells liquor to one having the appearance of being of full 
age, he is not liable to criminal prosecution, if such sale was made 
in good faith, after the exercise of due caution and diligence, and in 
the reasonable and honest belief that the purchaser was an adult, 
although he was in fact a minor.98 The doctrine upon which this 
rule rests is that there can be no criminal liability unless there is a 
criminal intent, and that if a person is honestly misled or mistaken 
as to facts, through no fault or carelessness of his own, and therefore 
97 Garner v. State, 28 Tex. App. 561, 
13 S. W. Rep. 1004. 
98 State v. Kalb, 14 Ind. 403; Farbach 
v. State, 24 Ind. 77; Rineman v. State, 
Id. 80; Brown v. State, Id. 113; Goetz 
v. State, 41 Ind. 162; Robinius v. State, 
63 Ind. 235, 67 Ind. 94; Payne v. State, 
74 Ind. 203; Hunter v. State, 101 Ind. 
241; Kreamer v. State, 106 Ind. 192, 6 
N. E. Rep. 341; Mulreed v. State, 107 
Ind. 62, 7 N. E. Rep. 884; Bebler v. 
State, 112 Ind. 140, 13 N. E. Rep. 272; 
Ross v. State, 116 Ind. 495, 19 N. E. 
Rep. 451; Adler v. State, 55 Ala. 16; 
Reich v. State, 63 Ga. 616; Miller v. 
State, 3 Ohio St. 475; Aultfather v. 
State, 4 Ohio St. 467; Faulks v. People, 
39 Mich. 200, 33 Am. Rep. 374, (but com- 
pare People v. Roby, 52 Mich. 577, 18 
N. W. Rep. 365, 50 Am. Rep. 270;) Peo- 
ple v. Welch, 71 Mich. 548, 39 N. W. 
Rep. 747. In Bishop, Stat. Crimes, 
§ 1022, the learned author says: "The 
result is, that one whom the law per- 
mits to sell intoxicating liquor, and 
whose purpose and endeavor it is to con- 
form to the law in all things, and to do 
no wrong of any sort, is legally, the 
same as he is morally, justified in act- 
ing, like other people in respect of 
other things, on what upon careful in- 
vestigation and inquiry appear to be 
the facts; so that if, believing the ap- 
pearances, he does what would be le- 
gally and morally right were the real 
facts so, he is not punishable, though 
he was deceived^ and they were differ- 
ent. Thus, if one authorized to sell 
liquor to adults and forbidden to sell it 
to minors, is, without his fault or care- 
lessness, led to believe an applicant to 
be an adult while truly he is a minor, 
he is not punishable though he makes 
the sale-a proposition which some 
deny. " 
487 § 418 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
in good faith believes his act to be justified, he cannot be charged 
with a criminal intent, although, as the facts really are, his act is a 
violation of the statute. "It cannot be assumed," says the court in 
Michigan, "that the legislature would attempt such a wrong as to 
punish as criminal an act which involved no criminal intent. There 
can be no crime where there is no criminal mind. This princi- 
ple is as old as the criminal law, and underlies the whole of it."99 
But it must be remembered, as an important part of this rule, 
that ignorance or mistake of fact is an affirmative defense; and the 
defendant must assume the burden of proving that he acted in a rea- 
sonable and honest, though mistaken, belief.100 And he must show 
that he exercised special caution and diligence to discover whether 
the applicant was a minor or not,-such diligence, it is said, as will 
satisfy the jury that he was making an honest inquiry to ascertain 
the truth.101 He may show, if he knew the person but not his age, 
that he was treated by his parents, his friends, and the community 
in general, as an adult.102 The fact that the purchaser represented 
himself as an adult, or declared that he was, in answer to a question, 
or that he had the physical appearance of being of age, or wore a 
beard, is not enough for the seller to rely upon; without proof of 
some further investigation or means of knowledge, or of his having 
been otherwise misled, such facts will not warrant an acquittal.103 
But in Michigan, although the statute declares that any sale of liquor 
to a minor shall be prima facie evidence of an intent to violate the 
law, it is held that proof that the defendant, relying on the minor's 
statement that he was of full age, made the sale in good faith, will 
exempt him from liability.104 
§ 418. Mistake of Fact Held no Defense. 
The main rule stated in the foregoing section is not universally 
accepted as correct. On the contrary, it is held, in many of the 
"Faulks v. People, 89 Mich. 200, 33 
Am. Rep. 374. 
looparbach v. State, 24 Ind. 77; Rine- 
man v. State, Id. 80. 
101 Reich v. State, 63 Ga. 616. 
102 State v. Kalb. 14 Ind. 403. 
103Swigart v. State, 99 Ind. Ill; 
Behler v. State, 112 Ind. 140, 13 N. E. 
Rep. 272; Goetz v. State, 41 Ind. 162. 
104 People v. Welch, 71 Mich. 548, 39 
N. W. Rep. 747. 
488 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 418 
states, that the vendor of intoxicating liquors is bound to determine 
for himself, at his peril, whether or not the purchaser is a minor; 
and if he sells to one who is a minor, he is criminally liable, not- 
withstanding he was actually ignorant of the fact and honestly 
believed that the person was of full age.105 The principle upon 
which this doctrine is sustained is that ignorance of fact is no defense 
where the statute makes the act indictable irrespective of guilty 
knowledge. "Where a statute commands that an act be done or 
omitted which, in the absence of such statute, might have been done 
or omitted without culpability, ignorance of the fact or state of things 
contemplated by the statute will not excuse its violation."106 There 
is nothing anomalous in this rule. In a great variety of cases of 
statutory offenses, more especially such as have to do with matters 
relating to police regulation, the laws impose criminal penalties, irre- 
spective of any intent to violate them, the purpose being to require 
a degree of diligence for the protection of the public which shall ren- 
der violation impossible.107 As remarked by the court in Illinois: 
"The law imposes upon the licensed seller the duty to see that the 
party to whom he sells is authorized to buy, and if he makes a sale 
without this knowledge, he does it at his peril. . . . It is no 
answer to this view to say that the licensee may sometimes be 
imposed upon and made to suffer the penalties of the law when he 
had no intention to violate its provisions. This is a risk incident to 
the business he has undertaken to conduct, and as he receives the 
gains connected therewith, he must assume also with it all the haz- 
ards."108 In respect to the argument that if the accused did not 
a® State v. Kinkead, 57 Conn. 173, 17 
Atl. Rep. 855; Comm. v. Uhrig, 138 
Mass. 492; Comm. v. Barnes, Id. 511; In 
re Carlson, 127 Pa. St. 330, 18 Atl. Rep. 
8; Redmond v. State, 36 Ark. 58, 38 Am. 
Rep. 24; Crampton v. State, 37 Ark. 108; 
Pounders v. State, Id. 399; State v. 
Cain, 9 W. Va. 559; State v. Gilmore, 
Id. 641; Ulrich v. Comm., 6 Bush, 400; 
McCutcheon v. People, 69 Ill. 601; 
Farmer v. People, 77 Ill. 322; Flynn v. 
Galesburg, 12 Ill. App. 200; Jamison v. 
Burton, 43 Iowa, 282; State v. Thomp- 
son, 74 Iowa, 119, 37 N. W. Rep. 104; 
State v. Bruder, 35 Mo. App. 475; State 
v. Hartfiel, 24 Wis. 60; State v. Chastain, 
19 Oreg. 176, 23 Pac. Rep. 963; 1 Whar- 
ton, Crim. Law, § 88; 3 Greenl. Ev. 
£21. 
106 State v. Hartfiel, 24 Wis. 61. 
107 The reader will find numerous in- 
stances of such statutes referred to, with 
citation of authorities, in the case of 
People v. Roby, 52 Mich. 577, 18 N. W. 
Rep. 365, 50 Am. Rep. 270. 
108 McCutcheon v. People, 69 Ill. 601. 
489 § 419 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
know the person was a minor, he could not have intended a crime, 
the supreme court of Connecticut observes: "This argument is spe- 
cious, but it is hardly sound. We have no occasion to impute to the 
legislature an intention to make an act a crime irrespective of the 
intent; for it is competent for the legislature to supply the intent by 
making circumstances equivalent thereto. It has virtually said that 
if a licensed person allows one who may or may not be a minor to 
loiter on his premises, without using means to ascertain the fact, he 
shall be guilty of the offense, if the person proves to be a minor."109 
But in Arkansas, it is said that the fact that defendant honestly 
believed that a minor to whom he sold liquor was of full age, will 
mitigate the punishment, though it will not justify or excuse him.110 
§ 419. Consent of Parent or Guardian. 
If the statute simply prohibits the sale of liquor to any minor, 
without more, the criminality of such a sale is not condoned or waived 
by the acquiescence or authorization of those having the legal con- 
trol over the minor. In such a case, it is no defense to an indict- 
ment that the minor's father or guardian authorized the sale of liq- 
uor to him,111 or that the father was in the habit of sending his son 
to defendant's place after liquor,112 or that the father had consented 
that the minor should drink lager beer.113 But in some of the states, 
the law makes the sale of liquor to a minor a misdemeanor only when 
it was made "without the written consent of the parent or guardian" 
of such minor. Under such a provision, the party cannot justify the 
act of selling to the minor by establishing that he did it by order of 
the parent, unless he shows that the order was in writing.114 The 
oral consent of the father is not sufficient, though the father was 
present when the sale was made, or though the oral consent was aft- 
erwards reduced to writing.116 The theory of these decisions is that, 
109 State v. Kinkead, 57 Conn. 173, 17 
Atl. Rep. 855. 
110 Crampton v. State, 37 Ark. 108; 
Pounders v. State, Id. 399. 
111 State v. Lawrence, 97 N. Car. 492, 
2 S. E. Rep. 367; State v. Clottu, 33 Ind. 
409. 
112 Boatright v. State, 77 Ga. 717. 
113 Adler v. State, 55 Ala. 16. 
114 State v. Coenan, 48 Iowa, 567. 
116 State v. Bruder, 35 Mo. App. 475; 
490 Ch. 18] 
§ 419 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
the offense being against the state, "the father has no power to con- 
done it, and cannot deprive the sale of its criminal character except 
by following the statute; that is, by giving his consent in writing 
prior to the sale. The legislative intent in requiring this prerequisite 
was doubtless to insure deliberation on the part of the parent, unin- 
fluenced by the desire to shield or fear to punish the guilty seller, as 
well as to secure such evidence of the fact of consent as to end dis- 
pute upon that subject."116 A statute so framed is violated by the 
delivery of liquor to a minor, asking for it in behalf of one to 
whom it might lawfully have been sold.117 Whether the written 
authority may be general, and intended to cover all future sales until 
withdrawn, or whether it must be specific for each occasion, is a 
question as yet unsettled. In Arkansas, it is held that a writing 
expressed as follows: "Please let my son John have anything in 
reason, or a drink when he wants it," signed and delivered to the 
seller by the father, is a continuing authority to sell to the minor, 
and, until revoked, a complete defense to an indictment for selling 
liquor to such minor in ordinary retail quantities.118 But in Geor- 
gia, it is held that the written authority from the parent or guardian 
must be special for each occasion. A general permit or license for 
the minor to drink liquor in a specified bar-room, without limitation 
as to time or quantity, is void.119 It is no defense to a prosecution 
for the sale of liquor to a minor, without first obtaining written 
authority from his parent or guardian, that the parents were both 
dead and he had no guardian.120 
Blahut v. State, (Ark.) 16 S. W. Rep. 
582; Hill v. State, 37 Ark. 395. 
116 Blahut v. State, (Ark.) 16 S. W. 
Rep. 582. 
117 State v. Fairfield, 37 Me. 517. But 
where a liquor-dealer sells whisky to a 
boy, on his representation that it is 
needed for his sick mother's immedi- 
ate use, and that his father had sent 
him for it in a hurry without giving 
him a written order, it is held that this, 
though within the letter, is not within 
the spirit, of the statute, and hence a 
conviction on such a state of facts must 
be set aside. Waldstien v. State, (Tex. 
App.) 14 S. W. Rep. 394. 
118 Mascowitz v. State, 49 Ark. 170, 4 
S. W. Rep. 656. 
119 Gill v. State, (Ga.) 13 S. E. Rep. 86. 
120 Blair v. State, 81 Ga. 628, 7 S. E. 
Rep. 855. 
491 § 420 
LAW OF INTOXICATING LIQUOKS. 
[Ch. 18 
§ 420. Sale to Minor as Agent or Messenger for an 
Adult. 
When a minor purchases liquor, not for his own consumption, but 
for the use of another person, as whose agent or messenger he is act- 
ing, and to whom the sale might lawfully be made, the guilt or 
innocence of the seller will depend upon the disclosure to the seller 
of the fact of agency, because, so far as concerns the seller, that will 
determine the person who is to fill the character of purchaser. If 
the minor informs the liquor-dealer that the liquor purchased is for 
the use of another person, who has sent him to buy it, and with 
whose money he pays for it, such being in truth the case; or if the 
dealer knows, from other sources of information, that the real pur- 
chaser is an adult and the minor is only his messenger; then the sale 
takes place between the dealer and the adult, the minor is not con- 
cerned in it except as the conduit by which the money is conveyed to the 
one and the liquor to the other, and consequently the dealer cannot 
be convicted of selling to the minor.121 "To ' sell ' liquor to a minor 
is what is forbidden by the statute. Merely to deliver liquor to a 
minor, with notice that it is to be carried to an adult, is not a sale, 
within the meaning of the statute. We cannot extend the terms of 
a criminal statute beyond its clear legal meaning. We cannot con- 
strue the word ' sell ' in the statute to mean something different from 
its ordinary legal import. Undoubtedly, a minor may be an agent 
or lawfully go on errands for an adult, and a person may buy through 
an agent, and in such case, there being no question of the fact of 
agency, although the dealing is with the agent, and the delivery is 
to him, in legal effect, the sale is to the principal. The law is, that 
where a person contracts as agent, or he is known to be such, the 
121 Comm. v. Lattinville, 120 Mass. 
385; O'Connell v. O'Leary, 145 Mass. 
311, 14 N. E. Rep. 143; State v. Mc- 
Mahon, 53 Conn. 407, 5 Atl. Rep. 596, 55 
Am. Rep. 140; State v. Walker, 103 N. 
Car. 413. 9 S. E. Rep. 582; Monaghan v. 
State, 66 Miss. 513, 6 South. Rep. 241; 
Wallace v. State, (Ark.) 16 S. W. Rep. 
571; Randall v. State, 14 Ohio St. 435. 
But in a prosecution for the sale of liq- 
uor to a boy eleven years old, the boy's 
statement that the liquor was for his 
sick mother, and defendant's belief 
therein, constitute no defense. Holmes 
v. State, 88 Ind. 145. 
492 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 420 
contract is with the principal, and not with the agent; but where 
the agent deals in his own name, and the principal is not disclosed or 
known, the contract is with the agent, and he is liable."122 Hence, 
for example, the seller should be allowed to show that the liquor was 
drawn and delivered to the minor in pursuance of an agreement 
between his parent and the defendant, on the previous day, for its 
purchase and subsequent delivery to the minor.123 
But on the other hand, as between a seller and an agent, who deals 
with him without disclosing the fact that he acts as agent, the latter, 
as well as the principal, may be regarded as the purchaser. A liq- 
uor-seller who contracts with a minor may therefore be convicted 
of selling liquor to a minor, notwithstanding the fact may subse- 
quently be disclosed that the minor acted as agent for an adult. In 
other' words, if the seller has no notice or knowledge, either from the 
statements of the minor, from a previous course of dealing, or from 
other sources, that the minor is making the purchase for any one but 
himself, so that, for all the seller knows to the contrary, he is selling 
liquor to a minor for the latter's own use, he is guilty of the stat- 
utory offense, although, in point of fact, the minor was acting as 
agent or messenger for another.124 
In some of the states, the statutes are so framed as to render unlaw- 
ful the delivery of liquor to a minor, even when he acts merely in the 
behalf of a disclosed principal. Thus, in Massachusetts, under a 
law which provides that "no sale or delivery of liquor shall be made 
on the premises described in the license . . . to a minor, either 
for his own use, the use of his parent, or of any other person," it is 
held that a complaint, alleging a sale to a minor, may be sustained 
by evidence of a sale to a minor for the use of an adult, although the 
fact of its being for such adult's use was disclosed at the time of the 
sale, and the minor was merely a messenger sent for the liquor.125 
If the person for whose use the liquor was procured was a person 
122 Monaghan v. State, 66 Miss. 513, 6 
South. Rep. 241. 
123 Randall v. State, 14 Ohio St. 435. 
124 Siceluff v. State, 52 Ark. 56, 11 S. 
W. Rep. 964; Comm. v. Fowler, 145 
Mass. 398, 14 N. E. Rep. 457; Ross v. 
People, 17 Hun, 591; Hitcher v. State, 
63 Miss. 304. 
126Comm. v. O'Leary, 143 Mass. 95, 
8 N. E. Rep. 887. See, also, People v. 
Garrett, 68 Mich. 487, 36 N. W. Rep. 
234. 
493 § 421 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
not authorized to buy,-as where one minor sends another to get liq- 
uor for him,-it is evident that the seller has committed an offense, 
however the transaction may be regarded. But whether the sale 
must be considered as made to one or other of the minors, must be 
determined in accordance with the rules already stated, and this will 
make an important difference in the indictment. But because a sale 
of liquor, made or attempted to be made to a parent through the 
agency of a minor child, is illegal because the seller was not licensed, 
it does not therefore become a sale to the minor.126 
§ 421. Adult "Treating" Minor. 
Where a minor and an adult go together to a liquor-saloon, and 
the adult calls for liquor, and it is furnished to both, and both drink, 
and the adult pays for the whole, the sale is to the adult, and the 
dealer cannot be indicted for selling to a minor.127 Neither, in such 
a case, according to some of the authorities, can the seller be charged 
with "giving away" liquor to the minor.128 But this last proposition 
is not undisputed. In some jurisdictions, it is thought that one 
who furnishes liquor to a minor, at the instance of a third person 
who pays for the liquor and gives it to the minor, is guilty of the 
statutory offense of "giving" liquor to a minor.129 It is true, say 
these authorities, that the third person was primarily the donor, but 
the liquor-seller acted in concert with him and participated in the 
transaction, by furnishing the liquor at the third person's direction, 
and "all persons who participate in an act or transaction which is a 
misdemeanor are alike guilty." But however the case may be in 
regard to a sale or gift, if the statute prohibits the furnishing of liq- 
uor to minors, it is clear that a saloon-keeper who, without protest, 
allows an adult to buy intoxicating liquor and give it to a minor to 
drink in his saloon, is guilty of a violation of the statute.130 Ac- 
126O'Connell v. O'Leary, 145 Mass. 
311, 14 N. E. Rep. 143. 
127 Ward v. State, 45 Ark. 351; Siegel 
v. People, 106 Ill. 89. 
128 Kurz v. State, 79 Ind. 488. 
129 Topper v. State, 118 Ind. 110, 20N. 
E. Rep. 699; Page v. State, 84 Ala. 446, 
4 South. Rep. 697. 
iso People v. Neumann, (Mich.) 48 N. 
W. Rep. 290; State v. Best, (N. Car.) 12 
S. E. Rep. 907; State v. Munson, 25 Ohio 
St. 381. In the case last cited it was 
494 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 422 
cording to the supreme court of Michigan, "A narrow and technical 
definition of the word ' giving ' might restrict its meaning to the 
handing of the liquor to him direct by the person giving it, as seems 
to be held by the supreme court of Illinois; but it is not necessary 
that a person should hand the liquor to a minor in order to furnish 
it. If the liquor, belonging to the person, and under his control, is, 
by his consent or connivance, permitted to be taken and drank by 
the minor, whether it is passed to him direct or through the hands 
of another, is immaterial; the liquor in either case is furnished to 
such minor, within the meaning of our statute."131 It is further 
to be observed that, irrespective of the liability of the seller, in a 
case such as we have supposed, there may be a criminal responsi- 
bility on the part of the person who "treats" the minor, if the stat- 
ute prohibits either the "giving" or "furnishing" to persons under 
age. Such a law does not apply to liquor-dealers alone, but also to 
one who buys liquor and furnishes it to the minor.132 
§ 422. Purchase by Adult as Agent of Minor. 
If a minor procures an adult to go to a saloon and purchase liquor 
for him, with his money which he gives him for that purpose, and the 
minor is not present at the purchase, and the adult does not disclose 
his agency, and the seller does not know, and has no reason to sus- 
said: "The rule at common law is that, 
in offenses less than felony, all who aid, 
advise, or procure the commission of an 
offense, though absent at the time of 
its commission, are principals; but in 
all classes of offenses, those who are 
present at their commission, giving aid 
and assistance, are alike principals. 
This principle is applicable here. The 
gist of the offense consisted in furnish- 
ing the liquor to Johnston, [the minor,] 
to be drunk by him, knowing him to be 
a minor. The defendant was the only 
one present who had liquor to furnish, 
and he supplied it with the understand- 
ing that one glass of it was to be drunk 
by Johnston. The liquor passed di- 
rectly from the defendant to Johnston. 
True, it was supplied by defendant at 
the instance of McCoy, who was to pay 
for it; but the unlawfulness of the act 
is not affected by that fact. Whether 
it was to be paid for or not, was, under 
the statute, immaterial. If the liquor 
was supplied by the defendant to Johns- 
ton, to be drunk by him, knowing him 
to be a minor, the offense was com- 
plete; and it would be no defense that 
the defendant acted at the instance or 
under the employment of another. " 
131 People v. Neumann, (Mich.) 48 N. 
W. Rep. 290. 
132 Comm. v. Davis, 12 Bush, 240; Par- 
kinson v. State, 14 Md. 184, 74 Am. Dec. 
522. 
495 § 423 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
pect, that the adult is acting as agent for a minor, he cannot be 
convicted of making a sale to the minor.133 But if the seller knows 
the facts, he is guilty. For in that case, the minor stands disclosed 
as the principal in the transaction, and the sale is regarded, on famil- 
iar principles, as made to him, though through the intervention of an 
agent. Thus, where, at the suggestion of the seller, a by-stander is 
induced by a minor to purchase liquor for him, and with his money, 
the effect is the same as if the sale had been made directly to the 
minor.134 But the person, who at a minor's request and with his 
money, purchases liquor and delivers it to him, is not guilty of selling 
liquor to a minor.136 
§ 423. Sale of Liquor to Intoxicated. Person. 
Where the statute, as is commonly the case, provides that it sha 1 
be unlawful for "any person" to sell or furnish liquor to a man in a state 
of intoxication, the prohibition is not understood as confined to licensed 
dealers, but the statutory offense may be committed by any person.136 
If a third person pays for the liquor which the intoxicated person 
drinks, it is true there is no sale as between the dealer and the drunken 
man, but the seller may still be guilty of the offense of "disposing of" 
liquor to the intoxicated person, under a statute using that expres- 
sion.137 And where liquor is bought for the use of a drunken man by 
an agent authorized by him, the fact of the agency being known to 
the seller, the sale may be considered as made directly to the prin- 
cipal.138 It is held that the word "intoxicated, " as used in these stat- 
utes, is to be taken in its common and ordinary signification, and it 
means intoxicated by the use of alcoholic liquors.139 And it is ruled 
that a person is drunk, in a legal sense, when he is so far under the 
133 Gillan v. State, 47 Ark. 555, 2 S. W. 
Rep. 185. Compare State v. Scoggins, 
107 N. Car. 859, 12 S. E. Rep. 59. 
134 Liles v. State, 88 Ala. 139, 7 South. 
Rep. 196. 
136 Cox v. State, (Miss.) 3 South. Rep. 
373; Johnson v. State, 63 Miss. 230; 
Young v. State, 58 Ala. 358; Bryant v. 
State, 82 Ala. 51, 2 South. Rep. 670. 
136Altenburg v. Comm., 126 Pa. St. 
602, 17 Atl. Rep. 799. 
137 State v. Hubbard, 60 Iowa, 466, 15 
N. W. Rep. 287. 
138 Schulher v. State, (Miss.) 8 South. 
Rep. 328. 
139 State v. Kelley, 47 Vt. 294. 
496 Ch. 18] 
ILLEGAL SALES OE LIQUOR AS CRIMINAL OFFENSES. 
§ 424 
influence of intoxicating liquor that his passions are visibly excited or 
his judgment impaired.140 Or "whenever a man is under the influ- 
ence of liquor so as not to be entirely at himself, he is intoxicated, 
though he can walk straight, though he can attend to his business, 
and may not give any outward and visible signs to the casual observer 
that he is drunk." 141 Inasmuch, however, as the symptoms of intox- 
ication are most commonly of an obvious or easily discoverable sort, 
and by no means unfamiliar to ordinary observers, the seller of liquors 
can seldom be at a loss to determine the condition of a purchaser. 
And if his knowledge of the inebriety of the purchaser were an essen- 
tial element of the offense, it might be established by proof of the 
same facts which enable the witnesses to speak as to the drunken con- 
dition of the latter. But the authorities hold that the question of the 
seller's knowledge is not material. It is no defense to say that he did 
not know that the purchaser was intoxicated. If that was the case, 
it does not relieve him from liability.142 
§ 424. Sales to Habitual Drunkards. 
The statutes regulating the sale of liquor commonly provide that 
it shall be a punishable offense to sell liquor to an "habitual drunk- 
ard" or to a "person of known intemperate habits." A provision of 
this character is not confined to licensed retailers, but may be 
violated as well by an unlicensed dealer.143 The only difference is 
that, in the latter case, the seller would commit two offenses in the 
same act. And a bar-keeper who sells liquor to a third person, with 
knowledge that a person of intemperate habits is to join in the 
drinking of it, and permits such intemperate person to drink the 
liquor in his presence, is guilty of the statutory offense.144 But a 
person who merely acts as the agent of the drunkard, in going 
to the saloon and procuring liquor for him with his money, does not 
commit the offense.146 No other intent is necessary to support a con- 
140 State v. Pierce, 65 Iowa, 85, 21 N. 
W. Rep. 195. See, also, Comm. v. 
Trimble, 150 Mass. 89, 22 N. E. Rep. 439. 
141 Elkin v. Buschner, (Pa. Sup.) 16 
Atl. Rep. 102. 
142 Church v. Higham, 44 Iowa, 482; 
Comm. v. Julius, 143 Mass. 132, 8 N. E. 
Rep. 898; Whitton v. State. 37 Miss. 379. 
143Fitzenrider v. State, 30 Ind. 238. 
144 Walton v. State, 62 Ala. 197. 
145 Young v. State, 58 Ala. 358. 
INTOX.LIQ. 32 
497 § 425 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
viction than that which the act of voluntarily delivering the liquor to 
a person of known intemperate habits of itself imports. When this 
act is voluntarily done, the law is broken.146 Nor is it necessary to 
complete the offense, that the person should be intoxicated at the 
time the liquor is furnished.147 And it is unlawful for a saloon- 
keeper to sell spirituous liquors to a person whom he knows to be in 
the habit of getting intoxicated, even though the statement is made 
by the purchaser that a physician has ordered such liquor for sick- 
ness in his family.148 In some of the states it is made an offense to 
sell liquor to an habitual drunkard only after notice of the person's 
habits, in writing, has been given to the liquor-dealer. Where the 
statute is so framed as to require such notice to be given by a "citi- 
zen of the township," it is held that an averment that the notice was 
given by the wife of a citizen of the township is not sufficient, unless 
it is also averred that she was a citizen of the township.149 
§ 425. What Constitutes Intemperate Habits. 
A drunkard, it is said, is one whose habit is to get drunk,-one 
whose ebriety has become habitual. The terms "drunkard," "com- 
mon drunkard," and "habitual drunkard" all mean the same thing.160 
An habitual drunkard is one who is in the habit of becoming intoxi- 
cated, or one who commonly or frequently is drunk; not that he is 
constantly or universally drunk.151 While "intemperate habits," 
within the meaning of the statute, cannot be predicated of a person 
who occasionally drinks to excess, neither is it necessary to show 
that he is drunk every day. If sobriety is the rule, and occasional 
intoxication the exception, he is not within the statute. And on the 
other hand, if the habit is to drink to intoxication when occasion 
offers, and sobriety or abstinence is the exception,-as when one is 
accustomed to remain sober while at home, but generally drinks to 
146 Hill v. State, 62 Ala. 168. 
147 Fountain v. Draper, 49 Ind. 441. 
148 McDonald v. Casey, (Mich.) 47 N. 
W. Rep. 1104. 
149 Engle v. State, 97 Ind. 122. 
150 Comm. v. Whitney, 5 Gray, 86. 
151 State v. Pratt, 34 Vt. 323; Comm, 
v. McNamee, 112 Mass. 286; Ludwick v. 
Comm., 18 Pa. St. 172; Ins. Co. v. 
Foley, 105 U. S. 350; Northwestern L. 
Ins. Co. v. Muskegon Bank, 122 U. S. 
501, 7 Sup. Ct. Rep. 1221. 
498 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 425 
excess when in company, or when visiting the town or village,-the 
charge of intemperate habits is sustained.152 As a general rule, the 
question whether or not a man is an habitual drunkard, or a person 
of intemperate habits, is a question of fact for the jury to determine 
from the evidence in each particular case.153 Perhaps, in a very 
clear case, the court might be warranted in ruling positively that the 
person was or was n . within the statute. But the court is not 
justified in setting up any fixed and invariable standard to govern the 
determination of the jury. For example, it is error to instruct the 
jury that "when a person gets intoxicated from three to five times 
in two years, then in law he is a person who is in the habit of getting 
intoxicated. "154 So when a witness testifies that the person in question 
used liquors to excess at some particular time, and that he has seen 
him the worse for liquor a number of times, and another witness 
says that the person is a "dissipated man," this evidence has a legal 
tendency to show that the person is an habitual drunkard in the 
sense in which that term is used in the statute, but its sufficiency in 
amount is wholly a question for the jury.155 Further, it is held that 
this question of the person's habits of drunkenness is one of fact, 
directly provable, and not an opinion or conclusion from other facts.158 
Where the criminality of the sale depends upon the previous giving 
of notice to the liquor-dealer, there is no error in charging the jury 
that, in order to convict the defendant, it is necessary that it should 
be proved that the person was in the habit of being intoxicated both 
at the time the notice was served and at the time when the liquor 
was furnished to him.157 
162 Tatum v. State, 63 Ala. 147. 
163Kamman v. People, 24 Ill. App. 
388; affirmed, 124 Ill. 481, 16 N. E. Rep. 
661; Murphy v. People, 90 Ill. 59; Har- 
rison v. Ely, 120 Ill. 83, 11N. E. Rep. 
334. 
164 Kamm an v. People, 24 Ill. App. 
388; affirmed, 124 Ill. 481, 16 N. E. Rep. 
661. 
156 State v. Pratt, 34 Vt. 323. 
166 Gallagher v. People, 29 Ill. App. 
397,401; affirmed, 120 Ill. 179, 11 N. E. 
Rep. 335. 
167 State v. Dolan, 122 Ind. 141, 23 N. 
E. Rep. 761. 
499 § 426 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
§ 426. Seller's Knowledge of Purchaser's Habits. 
Under the statutes prohibiting the sale of liquor to habitual drunk- 
ards, it is held, in many of the states, that it is not necessary, to 
constitute the offense, that the seller should have knowledge of the buy- 
er's habits of intemperance, and that ignorance or mistake of fact in 
that regard is no defense to an indictment.168 "The law is well set- 
tled in this state and elsewhere that, where a statute commands an 
act to be done or omitted which, in the absence of such statute, 
might have been done or omitted without culpability, ignorance of the 
fact or state of things contemplated by the statute will not excuse its 
violation."169 In Pennsylvania, where the statute prohibits the sale 
of liquor to a person of "known intemperate habits," the supreme 
court holds that the habits must be known to the community, but not 
necessarily to the seller; that is, although the seller may have no 
personal knowledge that his customer is a drunkard, the statutory 
offense is committed if he sells liquor to one wrho in fact is intem- 
perate in his habits and who bears that reputation in the neighbor- 
hood in which he lives.160 
168Barnes v. State, 19 Conn. 398; Wal- 
ton v. State, 62 Ala. 197; State v. Farr, 
(W. Va.) 11 S. E. Rep. 737; Mapes v. 
People, 69 Ill. 523; Dudley v. Sautbine, 
49 Iowa, 650; State v. Ward, 75 Iowa, 
637, 36 N. W. Rep. 765; State v. Heck, 
23 Minn. 549. In this connection, what 
we have already said of ignorance or 
mistake of fact as a defense to prosecu- 
tions for selling liquor to minors will be 
found applicable. Supra, §§ 416-418. 
169State v. Farr, <W. Va.) 11 S. E. 
Rep. 737, citing State v. Cain, 9 W. Va. 
559; State v. Denoon, 31 W. Va. 122, 5 
S. E. Rep. 315; Barnes v. State, 19 Conn. 
398; 3 Greenl. Ev. § 21. 
160 Comm. v. Zelt, 138 Pa. St. 615, 21 
Atl. Rep. 7. In this case it was said by 
Paxson, C. J.: "If the sale be contrary 
to law, the intent is immaterial. We 
are of opinion that selling liquor to per- 
sons of known intemperate habits 
comes within the same rule as selling 
to minors, i. e., the intent is not mate- 
rial. The words in the statute, ' per- 
sons of known intemperate habits,' are 
descriptive of a class to whom the deal- 
er sells at his peril. It was urged, how- 
ever, that such a rule would work in- 
justice; that in many instances a man's 
intemperate habits are known to but 
few persons, perhaps only to members 
of his own family, or a night-watch- 
man, who may have witnessed his con- 
vivial wanderings towards his home. 
The answer to this is that a man who 
conceals his habits does not come with- 
in the class. It is only when his intem- 
perance has become so conspicuous as 
to form a habit, and that habit is known, 
not merely to his family, or to a night- 
watchman, but to his friends and neigh- 
bors and the community in which he 
lives, that the law forbids and punishes 
500 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 426 
But these propositions do not pass undisputed. In some jurisdic- 
tions the rule obtains that if the defendant had no knowledge, at the 
time of the sale, that the purchaser was a man of intemperate habits, 
and if the latter was a stranger to the defendant, was sober at the 
time, and had not the appearance of a person addicted to intoxica- 
tion, the defendant is entitled to an acquittal.161 But if the defense of 
ignorance or mistake is available at all, it is an affirmative defense, 
which must be set up by the accused.162 On a similar principle, it 
is held, in Ohio, that if the liquor was obtained by false pretences and 
imposition on the seller, so that he had no intent to violate the law, 
he cannot be convicted.163 
As to the means of proving the seller's knowledge of the habits of 
the purchaser, it is held that, when evidence has been given tending 
to prove that the purchaser was in the habit of becoming intoxi- 
cated, and that he resided in the neighborhood of the vendor, it is 
competent to give his general reputation in that behalf in evidence, 
as a circumstance tending to prove the vendor's knowledge of such 
habit.164 And the defendant may show that, before the alleged sale, 
he inquired of several of the purchaser's acquaintances whether he 
was in the habit of becoming intoxicated, and what information he 
obtained; but his good faith and due care in seeking and obtaining 
the sale of liquor to him. Every man 
has a reputation for sobriety, or for 
intemperance, in the community in 
which he resides, just as every man has 
a reputation for integrity or for truth, 
and such reputation is generally known. 
None know better than saloon-keepers 
themselves the habits and reputation of 
their neighbors, as to drinking, and 
when a man is known as an 'intempe- 
rate man' in his neighborhood, not 
known to every one, but known gen- 
erally, to be such, the person who 
sells him liquor must take notice of that 
fact at his peril. Any other considera- 
tion of the act would destroy it for all 
practical purposes. It might as well 
be repealed. " 
But if the buyer, although known in 
his own community as an intemperate 
man, made the particular purchase in a 
locality where he was not known,-say,, 
in another county,-it would seem, in 
such a case, that the seller should be 
acquitted, unless he had actual knowl- 
edge at least of the reputation of the 
purchaser. See, as bearing on this- 
point, Elkin v. Buschner, (Pa. Sup.) IS 
Atl. Rep. 102. 
161Deveny v. State, 47 Ind. 208; Will- 
iams v. State, 48 Ind. 806; Comm. v. 
McNeff, 145 Mass. 406, 14 N. E. Rep. 
616. 
162 Allison v. State, 47 Ind. 140. 
163 Miller v. State, 5 Ohio St. 275. 
164Adams v. State, 25 Ohio St. 584. 
And see State v. Wooley, 59 Vt. 357, 10 
Atl. Rep. 84. 
501 § 427 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
such information, as well as the proper effect thereof under all the 
circumstances, must be left to the jury.166 
§ 427. Sale of Liquor to Indians. 
By the laws of the United States it is provided that every person, 
except an Indian in the Indian country, who shall sell spirituous 
liquor to any Indian under the charge of any Indian superintendent 
or agent, shall be punishable by imprisonment for not more than 
two years and by a fine not exceeding three hundred dollars.166 This 
legislation is constitutional, being based upon the power of congress 
to regulate commerce with the Indian tribes. And this power extends 
to the regulation of commerce with such tribes and with the indi- 
vidual members thereof, although the traffic, and the Indian with 
whom it is carried on, are wholly within the territorial limits of a 
state.167 And although the particular Indian may have abandoned 
his nomadic life and tribal relations, and adopted the habits and 
manners of civilized people, yet, if he remains under the charge of an 
Indian agent, the disposition to him of spirituous liquors is a violation 
of the statute.168 And it is not necessary, to complete the offense, 
that the sale should have been made within the Indian country, if 
the other elements are present.169 The offense created by this stat- 
ute is not a felony, but a misdemeanor.170 In addition to the act of 
congress referred to, there are statutes enacted in some of the states, 
prescribing and punishing the offense of selling liquor to an Indian 
or half-breed. Such a state law, it is held, does not conflict with the 
legislation of congress on the same subject, nor does it amount to an 
interference with the power of congress to regulate commerce with 
the Indian tribes. It is merely an exercise of the police power, and 
167 United States v. Holliday, 3 Wall. 
407. 
168 United States v. Osborn, 2 Fed. 
Rep. 58. 
169 United States v. Burdick, 1 Dak. 
142, 46 N. W. Rep. 571. 
170Brugier v. United States, 1 Dak. 5, 
46 N. W. Rep. 502. 
166 Crabtree v. State, 30 Ohio St. 382. 
Testimony as to whether a person is in 
the habit of getting intoxicated is ad- 
missible where the witnesses speak 
from personal observation. Gallagher 
v. People, 120 Ill. 179,11 N. E. Rep. 335. 
i«> Rev. St. U. S. § 2139. 
502 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 428 
is constitutional.171 The result is that, in those jurisdictions, one who 
sells liquor to an Indian may be punished for the same act both 
under the law of the state and under the law of the United States.172 
§ 428. Sale of Liquor on Sunday. 
When the statute prohibits the sale of intoxicating liquors on Sun- 
day, a person who is prosecuted for a violation of this provision 
cannot excuse himself from liability by showing that he is duly 
licensed for the sale of such liquor. His license gives him no author- 
ity to violate the law; it only confers a privilege which must be exer- 
cised in conformity to the law.173 And a conviction is proper under 
an indictment for selling liquor without a license, although the proof 
shows that the sale was made on Sunday. The fact that the law makes 
special provision for the punishment of a sale on Sunday whether the 
accused has a license or not, does not alter the general provisions of 
the law prohibiting sales without license so as to render it inappli- 
cable to sales made on Sunday.174 And where the grant of power, in 
a municipal charter, to regulate the traffic in liquor, is expressly 
made subject to a condition that the power granted shall only be 
exercised subject to the general law of the state regulating the man- 
ner of conducting the business by the licensee, a statute prohibiting 
the sale of liquor on Sunday is operative in the municipality, and a 
municipal license is no defense to a prosecution under the statute.175 
Where the law makes it an offense for "any tavern-keeper or other 
person" to sell liquor on that day, it is held that the words "other 
person" mean a person engaged in the business of selling liquor.176 
And in Missouri, it is required to be shown that the sale was made 
171 Territory v. Guyot, 9 Mont. 46, 22 
Pac. Rep. 134. 
172 Territory v. Coleman, 1 Oreg. 191. 
173 State v. Ambs, 20 Mo. 214. See 
Thomasson v. State, 15 Ind. 449; Single 
v. State, 24 Ind. 35; State v. Drischel, 
26 Ind. 154, 180; Parker v. State, 27 
Ind. 393; Morris v. State, 47 Ind. 503; 
Comm. v. Gedikoh, 101 Pa. St. 354; 
Sifred v. Comm., 104 Pa. St. 179. In 
Missouri, the giving away of intoxicat- 
ing liquor on Sunday by a dramshop- 
keeper is not an indictable offense. The 
penalty is a forfeiture of the license. 
State v. Burnett, 77 Mo. 570. 
174 People v. Krank, 110 N. Y. 488, 18 
N. E. Rep. 242. 
175 Heinssen v. State, 14 Colo. 228, 23 
Pac. Rep. 995. 
176 Jensen v. State, 60 Wis. 577, 19 N. 
W. Rep. 374. 
503 § 429 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
for the accommodation of a customer, and was a continuation of the 
usual occupation of the week.177 But in another state, under a stat- 
ute providing that "no house-keeper shall sell any strong liquor on 
Sunday," it is held that a tavern-keeper is a house-keeper in the con- 
templation of the act.178 When the law prohibits Sunday sales by "any 
druggist or druggist's clerk," except on the written prescription of a 
physician, a druggist who sells liquor on Sunday without a written 
prescription is liable to prosecution, although he is himself a physi- 
cian.179 And when such prescription is required to justify the sale, a 
licensed dealer is indictable for making a Sunday sale without it, 
although the liquor was bought for and used by a sick person, and 
the vendor was so informed at the time of the sale.180 Nor is it a 
defense to a prosecution under these statutes that the defendant was 
a Jew, and conscientiously believed that the seventh day of the week 
should be observed as the Sabbath.181 In general it is not a necessary 
part of the offense of selling liquor on Sunday that the quantity sold 
should be within the statutory limit for retailing. The laws are usu- 
ally so framed as to render the quantity sold immaterial.182 As to the 
kinds of liquor forbidden to be sold on that day, or whether any par- 
ticular variety is excepted from the prohibition, information must be 
sought in the local statute. In Minnesota, for example, beer is not 
one of the articles permitted to be publicly sold on Sunday,183 though 
this may not be the case in all of the states. 
§ 429. Sunday Sales to Lodgers or Guests. 
Whether the furnishing of liquor by an inn-keeper to a lodger or 
guest in his house, on Sunday, as part of the accommodation afforded 
by the house, would be an indictable offense if not expressly excepted 
from the statute prohibiting liquor-selling on that day, is a question 
not entirely free from doubt. In New York, it is held that the stat- 
ute does not prevent hotel-keepers and inn-keepers from selling liq- 
177 State v. Crabtree, 27 Mo. 232. 
178 State v. Fearson, 2 Md. 310. 
179 Tilford v. State, 109 Ind. 359, ION. 
E. Rep. 107. 
180 State v. Wool, 86 N. Car. 708. 
181 Comm. v. Hyneman, 101 Mass. 30. 
182Schlicht v. State, 31 Ind. 246. 
183 State v. Baden, 87 Minn. 212, 34 N. 
W. Rep. 24. 
504 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 430 
uor to their guests, on Sunday, to be taken with their meals.184 But 
a contrary doctrine appears to obtain in Pennsylvania.185 In Massa- 
chusetts, the statute allows an inn-keeper to furnish liquor on Sun- 
day to "guests who have resorted to his house for food or lodging." 
And hereunder it is held that the burden is on the defendant to show 
that persons to whom he sold liquor on Sunday were such guests of 
his inn.186 Persons who resort to an inn on Sunday for the purpose 
of procuring and drinking liquor are not guests, within the meaning 
of the statute.187 And the fact that an inn-keeper requires persons 
who apply to him for liquor on Sunday to eat a cold lunch before 
they can be served, does not make such persons guests.188 
§ 430. Sale of Liquor on Election-Days. 
For obvious reasons of public importance, the laws of the several 
states commonly require that saloons shall be kept closed on election- 
days. From the great variety of elections which take place under our 
systems, however, it is sometimes difficult to determine whether the day 
of holding a given election comes within the purview of the statute. 
In this connection, if the language of the act is general, prohibiting 
the sale of liquor on the day of "any election," it is held to be proper 
to consider the terms used in other sections of the same statute; as, 
one prohibiting druggists from selling liquor on the "day of any state, 
county, township, primary, or municipal election."189 An election by 
a city, under a statute authorizing cities to construct water-works, is 
held to be a "municipal election," within the meaning of such a stat- 
ute.190 But in Arkansas, it is considered that the day of the election 
of a school director is not within the purview of the act.191 On the 
day of a special election, in a certain ward, a sale of liquor in the 
city, though outside of such ward, is in violation of a law prohibiting 
sales "upon the day of any election in the township, town, or city 
184 In re Breslin, 45 Hun, 210. 
185Omit v. Comm., 21 Pa. St. 426. 
186 Comm. v. Molter, 142 Mass. 533, 8 
N. E. Rep. 428. 
187 Comm. v. Moore, 145 Mass. 244, 13 
N. E. Rep. 893. 
188 Comm. v. Hagan, 140 Mass. 289, 3 
N. E. Rep. 207. 
189 State v. Hirsch, 125 Ind. 207, 24 N. 
E. Rep. 1062. 
190 State v. Kidd, 74 Ind. 554. 
191 Stout v. State, 43 Ark. 413. 
505 § 430 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
where the same may be holden."192 In Indiana, the supreme court 
has determined that the statute, prohibiting the sale of liquor "on 
the day of any election," includes the day of a primary election held 
by a political party to select candidates. This decision is supported 
by the following reasoning: "The words 'primary election' are as 
well understood to mean the act of choosing candidates by the respect- 
ive political parties to fill the various offices as the word 'election' is 
to mean the final choice of all the electors of the persons to fill such 
offices; so that the words ' any election ' clearly include primary elec- 
tions, and such elections come within the letter of the statute. The 
object and purpose of the statute was to prevent elections from being 
influenced by the use of intoxicating liquors, and to put it beyond the 
power of any person to secure an election to office by the use or influ- 
ence of intoxicating liquors; and, as it is the first step to an election 
to an office by all the electors to be chosen as a candidate of some 
political party at the primary election held by such party, it is mani- 
festly as important to prohibit the sale of intoxicating liquor on the 
day of a primary election as upon the day of the final election by 
all the electors; therefore primary elections manifestly come within 
the spirit as well as the letter of the law."193 But the better rea- 
son seems to be with the judges who dissented from this opinion. 
As they pointed out, the omission of the word "primary" in the stat- 
ute is one which the courts cannot supply, and in the absence of 
that word, the statute refers to ordinary elections, that is, elections 
held under the law and for the choice of officers. 
In Maryland, under a statute providing that "it shall not be law- 
ful .. . for any person ... to sell, barter, or give . . . 
any spirituous liquors ... on the day of any election," the 
supreme court has held that the giving of liquor in one's own house 
on the day of an election, to a friend, in the course of hospitality, is 
a violation of the act, and subjects the party offending to the penalty 
prescribed.194 But it is scarcely credible that the legislature could 
192 Qualter v. State, 120 Ind. 92, 22 N. 
E. Rep. 100. 
193 State v. Hirsch, 125 Ind. 207, 24 
N. E. Rep. 1062, Elliott and Coffey, JJ.» 
dissenting. See, also, State v. Christ 
man, 67 Ind. 328. 
194 Cearfoss v. State, 42 Md. 403. 
506 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 431 
have intended so outrageous an invasion of private right as this con- 
struction of the statute would involve. It is to be apprehended that 
the learned court, in this decision, has furnished a notable illustra- 
tion of the maxim qui haret in lit era haret in cortice. 
Where the statute requires saloons to be kept closed "during the 
entire day of any election," the phrase quoted means the natural day 
of twenty-four hours, commencing and terminating at midnight. 
And it is not to be understood as denoting only the hours during 
which the polls are open.195 In a case where, after the polls were 
closed, a licensed retailer opened his saloon and invited by-standers 
in to drink, it was held that he was guilty of keeping "open" a saloon 
on election-day, and the fact that he kept other commodities for sale 
in the same house, and paid a tax as a merchant, was immaterial.196 
And evidence that the judges of election allowed a liquor-saloon to be 
kept open is not admissible, as it would not excuse a violation of the 
law.197 
§ 431. Sale of Liquor on Public Holidays. 
The statutes quite generally prohibit the sale of liquor on "public" 
or "legal holidays." If the particular enactment does not contain an 
enumeration of these days, the scope of the term must be determined 
by a reference to other parts of the statute-book. Thus, in Michi- 
gan, a general law provides that, besides certain named days, "any 
day appointed or recommended by the governor ... or the 
president . . . as a day of fasting and prayer or thanksgiving" 
shall be a holiday. The governor, by proclamation, specially set 
apart and recommended April 30, 1889, known as "Centennial Day," 
to be a day of general thanksgiving. The liquor law required 
saloons to be closed on "all legal holidays." It was held that a 
saloon could not lawfully be opened on that day.198 In Massachu- 
setts, liquor cannot lawfully be sold on "Labor Day," except by 
licensed inn-keepers to bona fide guests or travelers sojourning at 
195 Haines v. State, 7 Tex. App. 30; 
Lawrence v. State, Id. 192; Janks v. 
State, (Tex. App.) 15 S. W. Rep. 815. 
196 Haines v. State, 7 Tex. App. 30. 
197 English v. State, 7 Tex. App. 171. 
198 People v. Ackerman, 80 Mich. 588, 
45 N. W. Rep. 367. 
507 § 433 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
their inns.199 But where a law of the state makes the Fourth of July 
a holiday "for all purposes of presenting" bills and notes "for pay- 
ment and acceptance," and "giving notice for their dishonor," this 
does not make it a legal holiday within the meaning of the act pro- 
hibiting liquor-selling on "any legal holiday." 200 But it is held that 
Christmas day is a legal holiday within the scope and intendment of 
such a statute.201 
§ 432. Sale after Lawful Hours. 
We have already seen that licensed liquor-dealers are usually 
required by law to close their places of business at a certain hour of 
the night, and prohibited to sell liquor between that time and a 
designated hour of the morning; and we have examined the valid- 
ity of statutes and ordinances imposing such restrictions.202 A 
requirement of this kind being peremptory, the courts are not at 
liberty to admit exceptions to its terms, nor will they listen to excuses 
for its violation. Thus, under a law which provides for the granting 
of restaurant licenses, and declares that such a license "shall not 
authorize any person to expose for sale spirituous liquors on any day 
between the hours of one and five o'clock in the morning," it is held 
that a licensee cannot keep open, between those hours, and sell liq- 
uor in connection with meals furnished to the participants in a ball, 
though it has long been the custom so to do.203 
§ 433. Sales in Prohibited Places. 
A license to keep a liquor-saloon does not authorize the holder to 
maintain such an establishment at any other place than that desig- 
nated in the license. But where the proprietor of a hotel and res- 
taurant procured a license to keep a dram-shop at a certain number 
on a certain street, which was the main street entrance to the hotel, 
189 Comm. v. Francis, (Mass.) 25 N. 
E. Rep. 836. 
200 Ruge v. State, 62 Ind. 388. 
201 Reithmiller v. People, 44Mich. 280, 
6 N. W. Rep. 667. 
202 Supra, § 236. 
203 In re Whitney, (Sup.) 3 N. Y. Supp. 
838. 
508 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 434 
and then kept three separate bars where liquors were sold, on the 
ground floor of the hotel, screened off by partitions, but having direct 
and immediate connection by door-ways, all of which were accessible 
to the guests without going out of the hotel, and all of which bars 
were situated on the premises occupied for hotel purposes, it was 
held to be no violation of the law.204 So where an ordinance pro- 
vided that no liquor shall be used or kept "in any refreshment saloon 
or restaurant within the city," and it appeared that the shop where 
the alleged offense was committed was used by the accused for the 
manufacture and sale of tobacco and cigars, and for the sale of 
strong beer by the glass, and for no other purposes, it was held that 
no breach of the ordinance was shown.205 Where the statute allows 
distillers and vintners to sell their products "at the place of manufact- 
ure," without license, a sale of spirits made by defendant at a place 
three or four hundred yards from his distillery, though on his own 
farm, is not legal.206 Similarly, a statute allowing distillers to sell at 
their own residence, provided the residence is "located upon the dis- 
tillery premises or premises adjacent," does not protect sales by a 
distiller who leases, at a nominal rent, two or three narrow strips of 
land connecting his residence with the distillery, a mile or more dis- 
tant.207 
§ 434. Sales Made out of Territory Covered by License. 
The privilege conferred by a license to sell liquor is territorially 
restricted. And the license affords no justification for a sale made 
beyond the limits to which it is applicable. For instance, a person 
who has a license to sell in one county, and sells in another, may be 
indicted for selling without a license.208 In cases arising under this 
204 City of St. Louis v. Gerardi, 90 Mo. 
640, 3 S. W. Rep. 408. 
205 State v. Hogan, 30 N. H. 268. 
2<® State v. Hazell, 100 N. Car. 471,6 S. 
E. Rep. 404. 
207 Creekmore v. Comm., (Ky.) 12 S. 
W. Rep. 628. 
208 Comm. v. Holstine, 132 Pa. St. 357, 
19 Atl. Rep. 273. Under the United 
States law, notwithstanding the pay- 
ment of a special tax as a retail liquor 
dealer at a certain town, if the dealer 
fills orders from another town, pay- 
ment to be made there on receipt of the 
liquor, he must pay another tax there. 
United States v. Shriver, 23 Fed. Rep. 
134; United States v. Cline, 26 Fed. 
Rep. 515. 
509 § 434 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
rule, the vital question is almost always the determination of the 
place of the sale. And in this connection, we find the following rules 
established or recognized by the best authorities:- 
1. When a liquor-dealer has a license from the city or county in 
which his store is kept, he may send out agents and take orders in 
any part of the state for goods to be selected and forwarded from the 
stock kept in such store, and he is not required to obtain a license 
from the authorities of each city or county in which contracts are 
made therefor by such agents.209 
2. A licensed dealer who receives, at his place of business, an 
order for liquor from a place in which he has no license, and fills it 
by selecting the liquor from his stock and delivering it to an express 
company or other carrier to be carried to the purchaser, does not 
violate the license law, although the carrier agrees to collect and 
return the price; for the sale is made at the place where the goods 
are separated from the general stock and delivered to the carrier, 
such delivery being delivery to the consignee.210 
3. Irrespective of the place where the bargain was made or the 
order received, if the seller, by his own hands or the hands of his 
servant or agent, carries the liquor to the purchaser, without any 
intermediate delivery to or through a common carrier, and delivers 
the liquor to the purchaser at the latter's place, and there receives 
the pay for it, the sale is made at the place of delivery, and if the 
vendor is not licensed to sell there, he is indictable.211 
4. If an order for liquor is given by a person in A. to an agent of 
a dealer, who has a license to sell liquor in B., and received by the 
agent subject to his principal's approval, and the liquor is put up by 
209 Gillen v. Riley, 27 Nebr. 158, 42 
N. W. Rep. 1054, citing Haug v. Gillett, 
14 Kans. 140; Williams v. Feiniman, Id. 
288; Gill v. Kaufman, 16 Kans. 571; 
Boothby v. Plaisted, 51 N. H. 436. See, 
also, United States v. Durham, 33 Fed. 
Rep. 834. 
210Fleming v. Comm., 130 Pa. St. 138, 
18 Atl. Rep. 622; Dunn v. State, 82 Ga. 
27, 8 S. E. Rep. 806; Brechwald v. Peo- 
ple, 21 Ill. App. 213; Pilgreen v. State, 
71 Ala. 368; State v. Carl, 43 Ark. 353, 
51 Am. Rep. 565; Smith v. State, (Ark.) 
16 S. W. Rep. 2; State v. Hughes, 22 W. 
Va. 743. But see Comm. v. Burgett, 
136 Mass. 450. 
211 Comm. v. Greenfield, 121 Mass. 40; 
People v. Capen, 26 Hun, 377; Comm, 
v. Holstine, 132 Pa. St. 357, 19 Atl. Rep. 
273; Bagley v. State, 82 Ga. 786, 9 S. E. 
Rep. 721; Bryant v. State, (Tenn.) 15 
S. W. Rep. 253; Yowell v. State, 41 
Ark. 355; Blackwell v. State, 42 Ark. 
275; State v. Houts, 36 Mo. App. 265. 
510 Ch. 18] 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
§ 435 
the seller, directed to the buyer at A., and delivered to a carrier at 
B., the sale is regarded as made at B., and is not unlawful.212 
5. In a case such as that last supposed, the agent is not indictable 
for making an unlawful sale, unless a local statute ordains differ- 
ently.213 But an agent of a liquor-dealer in another state, who there 
receives an order for liquor, and, under authority from his employer 
to receive or reject orders, accepts the order, may be indicted for an 
unlawful sale in the state where the liquor, pursuant to his direction, 
is delivered to the buyer.214 
In a case in Vermont, it appeared that the respondent, a citizen 
of New Hampshire, having his only place of business in that state, 
there contracted to sell to a resident of Vermont a part of a cask of 
brandy which was then in Vermont in transit from New York to 
New Hampshire. The purchaser, by permission of the respondent, 
obtained the cask from the railroad station in Vermont, where it then 
wyas, and took it to his residence, where he was to take from it what 
he wanted, and carry the cask, with what remained, to the respond- 
ent's store in New Hampshire, where the quantity taken was to be 
ascertained, by a measurement of what remained, and be there paid 
for. On this state of facts, it was held that there had been an unlaw- 
ful sale of the liquor in violation of the laws of Vermont.215 But where 
one purchases liquor, without a prohibited district, for another person 
at his request, with his own money, and delivers it to such person 
within the prohibited district, making no profit, he is not guilty of a 
sale within such district.216 
§ 435. Sales near Churches, Schools, Fairs, etc. 
In several of the states, general or special acts prohibit the sale of 
liquor within a prescribed distance of any church, or of certain des- 
212Frank v. Hoey, 128 Mass. 263; 
Gross v. Scarr, 71 Iowa, 656, 33 N. W. 
Rep. 223. 
213 Garbracht v. Comm., 96 Pa. St. 449, 
42 Am. Rep. 550; Pearson v. State, 66 
Miss. 510, 6 South. Rep. 243; Newman 
v. State, 88 Ala. 115, 6 South. Rep. 762. 
"The place of sale is the point at which 
goods ordered or purchased are set 
apart and delivered to the purchaser, 
or to a common carrier, who, for the 
purpose of delivery, represents him. " 
Garbracht v. Comm., supra. 
214 Comm. v. Eggleston, 128 Mass. 408. 
216 State v. Comings, 28 Vt. 508. 
216 Du Bois v. State, 87 Ala. 101, 6 
South. Rep. 381. 
511 § 435 
LAW OF INTOXICATING LIQUORS. 
[Ch. 18 
ignated religious edifices. In a case of the latter kind,-where the 
act forbade the sale of liquor within three miles of a particular Bap- 
tist church in a certain county,-it appeared that the church had 
been removed before the sale charged, and it was argued that, as the 
reason for the law had ceased, the law must be regarded as having 
ceased also. But the court held otherwise, saying that the statute 
was for the protection of the people within a three-mile radius, as 
well as the church.217 But of course if the statute merely prohibited 
the sale within three miles of "any church," the question would be 
whether there was any church within three miles of the place of sale 
at the time of the sale. When the statute designates the "Methodist 
and Baptist churches" in the town of D., a sale within three miles 
of one, though more than three miles from the other, is unlawful.218 
But an indictment cannot be supported by evidence of a sale within 
the prescribed distance of a house conveyed primarily for educational 
purposes, with permission to hold religious exercises therein on suit- 
able occasions, which is ordinarily used for a schoolhouse, but in 
which there is preaching at stated intervals.219 The prohibition of the 
statute in Pennsylvania, it is held, is directed to the sale of such 
articles as would have a tendency to produce intoxication and conse- 
quent disturbance, not articles of food which are not of that descrip- 
tion.220 In order to make out a case under such a statute, it must 
be shown that there was an actual sale. A mere bargain for a sale, 
the goods to be sent by express from another town, though payment 
is made at the time of the contract, is not enough.221 
Camp-meetings also are protected from the approach of liquor- 
sellers, by statute, in several of the states. A law imposing a fine 
on any person who, during the holding of a camp-meeting, sells or 
gives away any liquor, without the consent of the parties in charge 
of such meeting, within one mile thereof, with a proviso that any 
person having his regular place of business within such limits shall 
not be required to suspend his business, is not void as in restraint of 
2i7 State v. Eaves, 106 N. Car. 752, 11 
S. E. Rep. 370. 
218 Carlisle v. State, (Ala.) 8 South. 
Rep. 386. 
219 State v. Midgett, 85 N. Car. 538. 
220 Fetter v. Wilt, 46 Pa. St. 457. 
221 Herron v. State, 51 Ark. 133, 10 S. 
W. Rep. 25. 
512 Ch. 18] 
§ 435 
ILLEGAL SALES OF LIQUOR AS CRIMINAL OFFENSES. 
trade, or as creating a monopoly in favor of those persons referred to 
in the proviso and discriminating against others, or as illegally vesting 
power to license in the managers of the meeting, but is a legitimate 
exercise of the police power, and, as such, is valid.222 
When educational institutions are designated as centres, within a 
prescribed distance of which liquors may not be sold, it is held that the 
prohibition applies to the territory covered by radii extending in all 
directions, for the prescribed distance from the point at which the 
institution is located.223 And the offense may be committed by sell- 
ing from a steamboat on the waters of a navigable river, if within 
the limit at the time.224 And the law applies to a sale made in the 
vacation of the institution.225 But a statute forbidding the sale of 
liquor within a given distance of any academy, university, or institu- 
tion of learning, does not apply to common schools provided by the 
legislature. And this rule is applied even though such schools are 
taught in the building bf an academy or college.226 In some of the 
New England states, the statutes prohibit the granting of licenses for 
the sale of liquor to be exercised in any building or place which is on 
the same street with a public schoolhouse and within four hundred 
feet of it. The four hundred feet are to be determined by measuring 
the nearest point of each building to the other, whether they are close 
to the line of the street or some distance from it.227 i the lot on 
which the schoolhouse stands abuts on the street on which is the 
building in which the liquor is sold, the schoolhouse must be deemed 
to be on the street from which its entrances are.228 But a saloon on 
A. street continues to be on A. street, notwithstanding the boarding 
up of the A. street entrance and window, to meet the requirements 
of this law, and the use, afterwards, of another entrance on a side 
street.229 
A statute making it an offense to sell liquor within two miles of 
222 Meyer v. Baker, 120 Ill. 567, 12 N. 
E. Rep. 79. See, also, Kramer v. Marks, 
€4 Pa. St. 151. 
223 Love v. Porter, (Ala.) 9 South. Rep. 
585. 
224 Boyd v. State, 12 Lea, 687. 
226 Tillery v. State, 10 Lea, 35. 
226 Blackwell v. State, 36 Ark. 178. 
227 Comm. v. Jones, 142 Mass. 573, 8 
N. E. Rep. 603; In re Liquor Locations, 
13 R. I. 733. And see, also. Comm. v. 
Everson, 140 Mass. 434, 5 N. E. Rep. 
155. 
228 Comm. v. Jenkins, 137 Mass. 572; 
Comm. v. Heaganey, Id. 574. 
229 Comm. v. Whelan, 134 Mass. 206. 
INTOX.LIQ. 33 
513 § 435 
[Ch. 18 
LAW OF INTOXICATING LIQUORS. 
the place where an agricultural fair is being held, is not unconstitu- 
tional on the ground of a want of uniformity and generality in its 
operation.230 It is said that a place where the industrial products of 
a people in agriculture, manufactures, and the arts are received and 
placed on exhibition, for the purpose of displaying them and award- 
ing premiums as a reward for excellence, is an agricultural fair, within 
the meaning of such a statute, although organized and conducted for 
profit.231 It is further to be observed that one who sells at his permanent 
place of business, within the limits, is liable to the penalty, unless 
saved by a proviso in the statute.232 
The neighborhood of certain public buildings or institutions is also, 
in some of the states, a prohibited district for liquor-selling. Thus, 
in California, the code makes it a misdemeanor to sell, give away, or 
expose for sale any intoxicating liquor within two miles of the state 
prison, or within one mile of the insane asylum or of the University 
of California, or in the state capitol grounds. This legislation is held 
valid and constitutional.233 So, by an act of congress, it is provided 
that no license for the sale of intoxicating liquor at any place within 
one mile of the Soldiers' Home property in the District of Columbia 
shall be granted.234 Where a statute prohibited the sale of liquor 
within three miles of a certain railroad, during the construction of 
the road, it was held that it was not enough, to sustain an indict- 
ment, that the sale should have been made within that distance of 
the line or route; but it must have been made within three miles of 
a part of the road then in course of construction.235 In Alabama, 
where the charter of a manufacturing company made it an offense 
to sell liquor "within four miles of the factories of said corporation," 
and the property of the corporation was sold under a decree in chan- 
cery, and the purchasers carried on the same business under a new 
corporate name, it was held that the offense of selling continued the 
same as before.236 
230 Heck v. State, 44 Ohio St. 536, 9 N. 
E. Rep. 305. 
23i State v. Long, (Ohio,) 28 N. E. Rep. 
1038. 
232 Heck v. State, 44 Ohio St. 536, 9 N. 
E. Rep. 305. 
283 Ex parte McClain, 61 Cal. 436, 44 
Am. Rep. 554. See, also, Brinson v. 
State, (Ala.) 8 South. Rep. 527. 
23i 26 U. S. Stat, at L. p. 797. 
235 State v. Hampton, 77 N. Car. 526. 
236 Ashurst v. State, 79 Ala. 276. 
514 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 436 
CHAPTER XIX. 
INDICTMENTS UNDER THE LIQUOR LAWS. 
Part I. General Principles. 
§ 436. Scope of the Chapter. 
437. Certainty. 
438. Following the Statute. 
439. Disjunctive Allegations. 
440. Duplicity. 
441. Conjunctive Allegations. 
442. Joinder of Counts. 
443. Surplusage. 
444. Negativing Exceptions and Defenses. 
445. Same; Exception as to Druggists. 
446. Same; Exception as to Particular Uses. 
447. Same; Exception as to Imported Liquors. 
448. Negativing License or Authority to Sell. 
449. Form of Allegation Denying License. 
450. Referring to the Statute. 
451. Conclusion. Against the Form of the Statute. 
452. Complaint for Violation of Municipal Ordinance. 
Part II. Particular Averments. 
453. Alleging Character or Occupation of Defendant. 
454. Misnomer of Defendant. 
455. Allegations of Sales. 
456. Alleging Evasions or Devices to Conceal a Sale. 
457. Charging Use or Disposition of Liquors. 
458. Knowledge and Intent of Vendor. 
459. Allegation as to Time. 
460. Laying the Time with a Continuando. 
461. Allegation as to Place. 
462. Laying the Venue. 
463. Where Place is of the Essence of the Offense. 
464. Allegation of Name of Purchaser. 
465. How Purchaser is Described. 
466. Description of Liquors Sold. 
467. Not Necessary to Specify Particular Kind of Liquor. 
468. Charging Sale of Various Liquors in the Disjunctive. 
469. Allegation of Intoxicating Properties of Liquor. 
470. Allegation as to Quantity Sold. 
471. Charging Sale of One "Glass" or "Drink." 
472. Where Statute Prohibits Sales of "Less than" a Certain Quan- 
tity. 
515 § 436 
LAM7 OF INTOXICATING LIQUORS. 
[Ch. 19 
Part II. Particular Averments-Continued. 
§ 473. Where Quantity is not Material to the Offense. 
474. Allegation of Price Paid. 
475. Charging Sale of Liquor to be Drunk on Premises. 
476. Alleging Sale in Prohibited Places. 
477. Allegation of Sale to Minor. 
478. Allegation of Sale to Habitual Drunkard. 
479. Charging Sale on Sunday. 
480. Charging Sale on Election Day. 
481. Being a Common Seller. 
482. Unlawfully Pursuing Business of Liquor Selling. 
483. Keeping Liquors for Unlawful Sale. 
484. Keeping Place for Unlawful Sale of Liquor. 
485. Keeping a Tippling-House. 
486. Charging Maintenance of Nuisance. 
487. Violat on of Screen Law. 
488. Charging Illegal Transportation of Liquor. 
489. Violation of Laws against Adulteration. 
490. Charging Violation of Local Option Law. 
491. Charging Second Offense. 
Part I. General Principles. 
§ 436. Scope of the Chapter. 
It would be foreign to the plan of the present work to introduce a 
discussion of the general subject of criminal pleading. The learned 
reader is supposed to be already familiar with the accepted rules and 
principles which are applicable to the drawing of indictments in 
general and to the determination of their legal sufficiency. And our 
present purpose is merely to recount and examine the decisions which 
have been made with special reference to the prosecution of offenses 
•committed under the liquor laws of the various states. In the first 
part of this chapter, therefore, we shall examine certain general 
principles of the law of indictments, which have received special or 
peculiar attention, or which require special elucidation, in their 
application to these statutory misdemeanors. And in the second part, 
we shall consider in detail the rules established for the charging of 
the various specific offenses under the liquor statutes and for alleging 
the component elements of the particular crime. 
516 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 437 
§ 437. Certainty. 
When we speak of the requirement of "certainty" in an indictment, 
we mean that the facts constituting the basis of the prosecution must 
be stated with such a degree of clearness, explicitness, and detail 
that the accused may understand, without reasonable hesitation, 
exactly what charge he is called upon to meet, and may prepare his 
defense with a view thereto; that he may be enabled to plead the 
judgment in bar of a second prosecution for the same offense; and 
that the court may be informed of the facts alleged, so as to deter- 
mine whether they are sufficient in law to support a conviction 
should one be bad.1 These objects being general, there is no differ- 
ence, in respect to the certainty required, between common law 
offenses and statutory crimes, though in the forms of pleading there 
may be important differences. A person indicted for selling liquor 
contrary to law is not legally entitled to a more minute detail of 
statement of the facts necessary to constitute the offense, in the 
indictment, than he would be in an indictment at common law.2 
But it is clearly necessary that an indictment, under these statutes, 
should set forth the particular acts alleged as constituting a violation 
of the law.3 This may sometimes be accomplished by the use of a 
descriptive term having a settled and familiar meaning. Thus, it has 
been held that charging the defendant with "keeping a tippling-house" 
is a sufficient compliance with this requirement.4 But usually, the 
facts must be set out. Bor instance, an indictment for selling spir- 
1See United States v. Cruikshank, 92 
U. S. 558; United States v. Bennett, 
16 Blatchf. 350; Scales v. State, 47 Ark. 
476, 1 S. W. Rep. 769, 58 Am. Rep. 768. 
2 State v. Wooley, 59 Vt. 357, 10 Atl. 
Rep. 84. See Roberson v. Lambert- 
ville, 38 N. J. Law, 69. In Michigan, it 
is said that, the liquor law having gone 
very far, in the form prescribed, in re- 
moving the requirements of specific 
averments, the courts will not assume 
that the door was intended to be opened 
any wider than the statute allows; and 
a declaration which is neither a good 
common law declaration nor sufficient 
under either the general statute for the 
recovery of penalties or the specific 
provision of the particular act, cannot 
be sustained. Benalleck v. People, 31 
Mich. 200. 
3 State v. Cox, 29 Mo. 475; Comm. v. 
White, 18 B. Mon. 492; Bridgeford v. 
Lexington, 7 B. Mon. 47. 
4 Comm. v. Riley, 14 Bush, 44. But 
see, per contra, Bush v. Republic, 1 Tex. 
455. 
517 § 438 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
ituous liquors without a license, which alleges merely that the defend- 
ant sold such liquors in less quantities than a quart, without stating 
other facts tending to identify the transaction, is not sufficient.6 
And if the same transaction may constitute either of two offenses, 
according to the presence or absence of a particular fact, (as, whether 
the liquor was sold to be drunk on or off the premises,) that fact 
should be affirmed or denied as the case may be.6 It is scarcely 
necessary to add that, to make the indictment sufficiently certain, 
the time and place of the offense should be laid, and should be 
repeated, by the use of the phrase "then and there," before subse- 
quent material allegations.7 The necessity and sufficiency of aver- 
ments of time and place, kind and quantity of liquor sold, price, and 
name of purchaser, which have an important bearing on the question 
of certainty, will be discussed in detail in later sections of this chapter. 
§ 438. Following the Statute. 
As a general rule, in charging a statutory misdemeanor, it is suf- 
ficient to set forth the offense in the language of the statute. But 
this rule must be followed with great caution. For the pleader, by 
following the words of the statute too closely, may be led into a 
disjunctive allegation which will expose the indictment to the charge 
of uncertainty, or a conjunctive allegation which will make it assail- 
able on the ground of duplicity. The general rule does not mean 
that it is sufficient to copy the statute into the indictment. The 
indictment must make a specific application of the general terms of 
the statute to the case in hand, and charge a particular person with 
a particular offense within those terms, and go into detail far enough 
to render the particular instance of offending certain.8 And where 
the statute simply designates the offense, and does not in express 
terms name its constituent elements, the indictment must sometimes 
be expanded beyond the statutory terms.9 Where the statute itself 
6 Alexander v. State, 29 Tex. 495. 
See State v. Smith, 35 Tex. 132; State 
v. Ratner, 44 Kans. 429, 24 Pac. Rep. 
953. 
6 State v. Auberry, 7 Mo. 804. 
7 See State v. Hopkins, 5 R. I. 53. 
8 State v. Crooker, 95 Mo. 889, 8 S. 
W. Rep. 422. 
8 State v. Gavigan, 36 Kans. 327, 13 
Pac. Rep. 554. 
518 Ch, 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 439 
prescribes the form to be followed in indictments, it will be sufficient 
to use such form; provided, however, it contains enough to satisfy 
the constitutional right of the defendant to "be informed of the nat- 
ure and cause of the accusation against him." Although the indict- 
ment may be in the prescribed form, yet if it does not describe any 
offense punishable by the statute, it cannot be sustained.10 But sub- 
ject to this constitutional provision, an indictment is sufficient if it 
follows the form given in the statute, and it is not to be tested by 
common law rules as to certainty. In such a case, it is no objec- 
tion to the indictment that it would be bad at common law, provided 
it is not repugnant to the constitution.11 
§ 439. Disjunctive Allegations. 
It is said that "or" is a dangerous word to use in an indictment. 
The reason is that it is extremely liable to make the statement of the 
offense uncertain. When its effect is to render it doubtful which of 
two or more acts, articles, or agencies is intended to be alleged, its 
use is fatal to the indictment. Hence the need of special caution in 
following the language of the statute where this word is employed. 
There is but one case in which it is safe to copy the disjunctive from 
the statute; viz., where "or" is used in the statute in the sense of 
"to wit," that is, where that which follows it,is merely descriptive or 
explanatory of that which precedes, so that the two are identical or 
equivalent. If the two things separated by this word are different 
things, the pleader must allege only one of them or use the conjunc- 
tive "and." These principles are amply illustrated by decisions deal- 
ing with our particular subject-matter. Thus, an indictment which 
alleges an unlawful sale of "spirituous or intoxicating liquor," or of 
"ardent or intoxicating liquor," or of "ale and beer or wine," follow- 
ing the language of the statute, is bad for uncertainty.12 So is an 
indictment alleging that liquor was "kept or deposited by" the defend- 
ant "or by some other person with his consent."13 And so is an 
10 State v. Learned, 47 Me. 426. 
11 State v. Murphy, 15 R. I. 543, 10 
Atl. Rep. 585; State v. Comstock, 27 
Vt. 553. 
12 Comm. v. Grey, 2 Gray, 501, 61 Am. 
Dec. 476; Clifford v. State, 29 Wis. 327. 
13 State v. Moran, 40 Me. 129. 
519 § 440 
LAW OF INTOXICATING LIQUORS. 
[Ch.19 
indictment charging that the accused "did sell or suffer to be sold," 
etc.14 So, under a statute providing that no druggist shall "sell, give 
away, or otherwise dispose of intoxicating liquors," an indictment 
charging, in the disjunctive, that the defendant "did unlawfully sell 
or give away and dispose of intoxicating liquors," is fatally defect- 
ive.16 
§ 440. Duplicity. 
In criminal pleading, duplicity is the fault of charging two or more 
distinct offenses in the same count. That the rule against duplicity 
is applicable to indictments under the liquor law is well recognized. 
Thus, a statute providing that a person shall not sell "any wines or 
spirituous liquors in less quantities than one gallon, nor suffer the 
same or any part thereof" to be used on the premises, states two dis- 
tinct offenses, and one count, setting out the words of the statute, 
charges two offenses and is bad for duplicity.16 But if the allegation 
of one of the offenses is legally insufficient, or shows a lack of juris- 
diction in the court, it may be rejected as surplusage, and this 
relieves the count of the charge of duplicity. This is the case where 
an indictment alleges the keeping of two liquor nuisances, but 
describes one of them as in another county.17 So, in an indictment 
for selling liquor on Sunday, an averment that defendant had no 
license is merely surplusage, and does not render the indictment bad 
for duplicity.18 Again, it is a rule that, where two or more acts are 
so connected that each represents a stage in the same offense, though 
each act alone would constitute an offense, they may be coupled in 
one count. Hence a complaint charging that defendant, not being 
licensed, owned and kept liquors with intent to sell them, exposed 
and offered them for sale, and sold them, is not bad for duplicity, 
although each of the several acts charged was itself specifically for- 
bidden by the statute.19 Further, it must be remembered that a 
statutory offense may be single, although it may require, or admit, 
14 State v. Colwell, 3 R. I. 284. 
18 State v. Fairgrieve, 29 Mo. App. 
641. And see Raisler v. State, 55 Ala. 
64. 
16 Miller v. State, 5 How. (Miss.) 250. 
See State v. Ball, 27 Nebr. 601, 43 N. W. 
Rep. 398. 
17 State v. Smouse, 50 Iowa, 43. 
18 State v. Hutzell, 53 Ind. 160. 
19State v. Burns, 44 Conn. 149. And 
520 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 441 
several distinct acts as its constituent elements. Thus, an indict- 
ment charging sales of twenty glasses or drams to divers persons at 
divers times, charges but one offense; viz., the "retailing of intoxi- 
cating liquors by the dram."20 And where the statute defines the 
offense as committed in a certain mode or in a certain other mode, 
the indictment may charge the offense, in the language of the stat- 
ute, to have been committed in both these modes.21 And again, 
there is no objection to the use of several terms to designate one and 
the same place. Thus, where the statute declares "all grog-shops, 
tippling-shops, or buildings, places, or tenements" used for the illegal 
sale of liquors to be nuisances, an indictment thereunder may charge 
the keeping of "a certain grog-shop and tippling-shop and building, 
place, and tenement" used for the illegal sale of liquors.22 
§ 441. Conjunctive Allegations. 
It is a general rule that where several cognate acts are forbidden 
in the statute, disjunctively, the complaint or indictment may ordi- 
narily charge them all conjunctively in a single count, if the refer- 
ence is to one transaction, for which a single penalty is incurred.23 
In accordance with this rule, it is held that if the statute makes it 
an offense for any one to "sell or give away" intoxicating liquors, the 
indictment may charge that the defendant "did sell and give away" 
such liquors, without being open to the charge of duplicity.24 And 
the same is true of an indictment charging both a selling and barter- 
see Luton v. Palmer, 69 Mich. 610, 37 
N. W. Rep. 701; People v. Paquin, 74 
Mich. 34, 41 N. W. Rep. 852. 
20Zumhoff v. State, 4 Greene, (Iowa.) 
526; Comm. v. Broker, 151 Mass. 355, 
23 N. E. Rep. 1137. 
21 State v. Plastridge, 6 R. I. 76. 
22 State v. Brady, 16 R. I. 51, 12 Atl. 
Rep. 238; State v. Tracey, 12 R. I. 216; 
Conley v. State, 5 W. Va. 522. 
23 State v. Nolan, 15 R. I. 529, 10 Atl. 
Rep 481, citing State v. Wood, 14 R. I. 
151; State v. Schweiter, 27 Kans. 499; 
Comm. v. Eaton, 15 Pick. 273; Comm. 
v. Foss, 14 Gray, 50; Comm. v. Nichols, 
10 Allen, 199; Comm. v. Curran, 119 
Mass. 206; Comm, v.' Dolan, 121 Mass. 
374; United States v. Hull, 14 Fed. Rep. 
324; Comm. v. Miller, 107 Pa. St. 276. 
24 State v. Brown, 36 Vt. 560; Boldt 
v. State, 72 Wis. 7, 35 N. W. Rep. 935, 
38 N. W. Rep. 177; State v. Ball, 27 
Nebr. 601, 43 N. W. Rep. 398; State v. 
Pittman, 76 Mo. 56. But compare State 
v. Pischel, 16 Nebr. 490, 20 N. W. Rep. 
848; Smith v. State, (Nebr.) 48 N. W. 
Rep. 823. 
521 § 442 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
ing in the same count.25 And so of an allegation that defendant did 
"offer to sell, sell, and suffer to be sold."26 And so of a charge that 
he "did presume to be a retailer, and did sell" to a person named.27 
And so of an allegation that the defendant "unlawfully did sell, and 
was interested in the sale of, alcoholic, ardent, and vinous liquors 
and intoxicating spirits."28 And there is no duplicity in charging 
that he "did sell, and did offer to sell, by himself and by an agent."29 
In pursuance of the same principle, it is held that if the statute pro- 
hibits the sale of several enumerated kinds of liquor, in the disjunct- 
ive, the indictment may properly allege the sale of each and all of 
them. Hence it is permissible, and quite common, following the 
language of the statute, but with the substitution of "and" for "or," 
to charge the sale of "spirituous, vinous, and malt liquors," or "fer- 
mented and distilled" liquors, or otherwise according to the terms of 
the law.80 
§ 442. Joinder of Counts. 
The general rule that two or more offenses of the same grade, pun- 
ishable with similar penalties, committed in the same jurisdiction 
by the same defendant, and belonging to the same general group or 
class of crimes, may be joined in separate counts of the same indict- 
ment, applies to prosecutions for violations of the liquor laws.31 
Thus, under the statute in Massachusetts, a count charging the 
defendant with being a common seller of intoxicating liquors may be 
included in the same indictment with counts charging distinct sales 
to particular persons.32 A count for maintaining a nuisance may be 
joined with one or more counts charging particular illegal sales of 
25 State v. Teahan, 50 Conn. 92; State 
v. Schweiter, 27 Kans. 499. 
26 State v. Nolan. 15 R. I. 529. 10 Atl. 
Rep. 481. 
27 Comm. v. Wilcox, 1 Cush. 503. 
23 Davis v. State, 50 Ark. 17, 6 S. W. 
Rep. 388. 
29 Barnes v. State, 20 Conn. 232. 
30State v. Cottle, 15 Me. 473; State v. 
Whitted, 3 Ala. 102; Lea v. State, 64 
Miss. 201, 1 South. Rep. 51; Kreamer v. 
State, 106 Ind. 192, 6 N. E. Rep. 341; 
State v. Nations, 75 Mo. 53. 
31 See State v. Klein, 78 Mo. 627; 
Comm. v. Bearce, 150 Mass. 389, 23 N. 
E. Rep. 99; Walters v. State, 5 Iowa, 
507; State v. Atkinson, (S. Car.) 11 S. 
E. Rep. 693; Pope v. People, 26 Ill. 
App. 44. 
32 Comm. v. Moorehouse, 1 Gray, 470; 
Comm. v. Clark, 14 Gray, 367; Comm, 
v. Gillon, 2 Allen, 505. 
522 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 443 
liquor.33 And a charge of selling liquor within the prohibited dis- 
tance of an institution of learning may be joined with a charge of 
selling without taking the oath not to mix or adulterate liquors.34 
But on the other hand, it is said that where two counts of an indict- 
ment charge a sale of liquor without license, and another count 
charges a violation of the local option law, the two sets of counts are 
irreconcilably repugnant, and the indictment is insufficient in law.35 
In New York, the code of procedure provides that each indictment 
shall charge but one crime, except that a crime may be alleged in 
separate counts as committed in a different manner, and where the 
act complained of constitutes different crimes, such crimes may be 
charged in separate counts.86 It is held to be a violation of this stat- 
utory rule when an indictment charges sales of liquor in the same 
town, at different times and to different persons, each sale being 
alleged in a separate count.37 But where an indictment charged in 
one count that defendant sold liquor in quantities less than five gal- 
lons to a certain person, at a certain time and place, without a license, 
and a second count alleged that he sold liquor to be drunk on the 
premises to the same person at the same time and place, in violation 
of two distinct sections of the statute respectively, it was held that 
if there was a sale of less than five gallons to be drunk on the prem- 
ises, it was a crime under both such sections, and might be charged 
in separate counts, as the case came within the proviso to the statu- 
tory rule of pleading.38 
§ 443. Surplusage. 
The familiar rules in regard to the character and tests of surplus 
matter, and the rejection or disregarding it when found in an indict- 
ment, apply to prosecutions under the liquor laws. Surplusage does 
83State v. McLaughlin, (Kans.) 27Pac. 
Rep. 840. 
84 Tillery v. State, 10 Lea. 35. 
36 Butler v. State, 25 Fla. 347, 6 South. 
Rep. 67. 
36 Code Crim. Proc. N. Y. §§ 278, 279. 
87People v. O'Donnell, 46 Hun, 358. 
So also, an indictment charging, in one 
count, a sale to E. L. and divers others 
on Sunday, Feb. 26, and, in another 
count, the giving of liquor to divers 
persons on Sunday, March 18. People 
v. Harmon, 49 Hun, 558, 2 N. Y. Supp. 
421. 
88 People v. Charbineau, 115 N. Y. 
433, 22 N. E. Rep. 271. 
523 § 444 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
not vitiate a complaint or indictment founded on such statutes.39 
Thus, an indictment alleging that the respondent was a common 
seller of liquors on a day named, and on divers days and times between 
that day and the finding of the indictment, is not bad, although 
offenses committed during a portion of that time are punishable under 
one statute, and during the remaining portion, under another and 
later statute; for the allegation concerning "divers other days," etc., 
may be rejected as surplusage.40 
§ 444. Negativing Exceptions and Defenses. 
It is a general and well-recognized rule that where the enacting 
clause of the statute describes the offense with certain exceptions, it 
is necessary to state, in the indictment, all the circumstances which 
constitute the offense and to negative the exceptions; but where 
there are exceptions or provisos contained in separate and subse- 
quent clauses or provisions of the statute, or in another statute, they 
need not be noticed in the indictment, but the defendant may show 
them in his defense.41 But a negative, or exception, or proviso, 
which is descriptive of the offense, as distinguished from one which 
affords matter of excuse merely, must be met by an allegation in 
the indictment, irrespective of the question of its position in the 
statute.42 That these rules are applicable to the case of indictments 
for violations of the liquor laws will be seen from the cases collected 
in the margin,43 as well as from the following illustrations. Where 
the enacting clause of the statute is: "No person shall sell . . . 
except," etc., the indictment must severally set out and negative the 
exceptions.44 So, under an act making it an offense to sell liquor 
39 State v. Hall, 26 W. Va. 236; State 
v. Staples, 45 Me. 320; Comm. v. Penni- 
man, 8 Mete. (Mass.) 519. 
40 State v. Pillsbury, 47 Me. 449. 
41 United States v. Britton, 107 U. S. 
670, 2 Sup. Ct. Rep. 512; United States 
v. Cook, 17 Wall. 173; State v. McGlynn, 
34 N. H. 422; 1 Bishop, Crim. Proc. §§ 
631-642; Chitty, Crim. Law, 283, 284; 
Wharton. Crim. Plead. § 240. 
42 State v. Abbey, 29 Vt- 60, 67 Am. 
Dec. 754; State v. Miller, 24 Conn. 523; 
State v. Keen, 34 Me. 500. 
43 State v. Lane, 33 Me. 536; Comm, 
v. Burding, 12 Cush. 506; Comm. v. 
Hill, 5 Gratt. 682; Comm. v. Young, 15 
Gratt. 664; State v. Thompson, 2 Kans. 
432; Brutton v. State, 4 Ind. 601; Kinser 
v. State, 9 Ind. 543; State v. Curley, 33 
Iowa, 359; State v. Buford, 10 Mo. 703. 
44 State v. O'Donnell, 10 R. I. 472. 
524 Ch. 19] 
§ 445 
INDICTMENTS UNDER LIQUOR LAWS. 
without the prescription of a graduated physician or regular prac- 
titioner of medicine, the indictment must negative the prescription 
of both.45 But where the statute, in its first section, prohibits the 
sale of intoxicating liquors under certain circumstances, and, in a 
proviso at the end of a subsequent section, allows the sale of "wine 
manufactured of the pure juice of the grape cultivated in the state, 
or beer, ale, or cider," it is not necessary to a perfect description of 
the offense, as defined in the first section, that the indictment should 
allege that the liquor sold was not of the excepted classes; the ben- 
efits of the proviso, if applicable to the case, must be taken advan- 
tage of by the accused in making his defense upon the facts.46 So, 
where the statute contains a proviso that its terms shall not apply 
to incorporated towns and cities, it is not necessary to aver that the 
offense was not committed in a town or city; for that is not a part 
of the description of the offense, but only matter of defense.47 Nor 
is it necessary to negative a proviso in the act, exempting from its 
operation all sales made to town agents within a certain time after 
the act took effect or sales by one agent to another at any time.48 
In a complaint, under a statute, for not keeping a saloon closed 
after nine o'clock at night, it is not necessary to negative any action 
by the town council extending the time for closing until ten o'clock, 
as permitted by a proviso in the act.49 
§ 445. Same; Exception as to Druggists. 
If the statute prohibits the sale of liquors under certain circum- 
stances, and, in another section or in a proviso, authorizes druggists 
or apothecaries to sell for certain purposes or under certain condi- 
tions, it is not necessary, in an indictment on the statute, to allege 
that the defendant is not a druggist.60 And a fortiori, the indict- 
ment need not negative the existence of those facts which, under a 
45 Thompson v. State, 37 Ark. 408. 
46 Becker v. State, 8 Ohio St. 391. 
And see, also, State v. Shaw, 35 N. H. 
217. 
47 State v. Tarnier, 19 Oreg. 528, 25 
Pac. Rep. 71. 
48 State v. Wade, 34 N. H. 495. 
49 People v. Richmond, 59 Mich. 570, 
26 N. W. Rep. 770. 
60 State v. Taylor, 73 Mo. 52; Bogan 
v. State, 84 Ala. 449, 4 South. Rep. 355; 
People v. Robbins, 70 Mich. 130, 37 N. 
W. Rep. 924; People v. Sullivan, 83 
Mich. 355, 47 N. W. Rep. 220. 
525 § 446 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
subsequent statute, authorize a druggist to sell without a license.61 
But if the exception as to druggists were in the enacting clause,- 
as, if the statute should provide that "it shall not be lawful for any 
person, except druggists, to sell any liquor without a license,"-it 
would seem, under the rule stated in the preceding section, that this 
should be met by a negative allegation in the indictment. For here 
the fact that the defendant is not a druggist is as much a part of the 
offense as the fact that he has no license. But there are authorities 
which deny even this.62 But if the pleader undertakes to negative 
the authority of the defendant as a druggist, he must be careful to 
make his allegation as broad, as specific, and as certain as the lan- 
guage of the statute. For example, if the statute provides that its 
terms shall not apply to "druggists who sell liquor for chemical, 
scientific, medicinal, mechanical, or sacramental purposes only, and 
in strict compliance with law," an allegation that the defendant did 
unlawfully sell liquor, the said defendant "not being then and there 
a druggist," does not sufficiently charge that he was not within the 
excepted class.63 
§ 446. Same; Exception as to Particular Uses. 
If the same section or clause of a statute which prohibits the sale 
of intoxicating liquors contains also an exception in favor of their 
sale for certain permitted uses, then the indictment must meet the 
exception with a negative allegation. Thus, where the act forbids 
the sale of liquor without license "except such as shall be com- 
pounded and intended to be used as a medicine," the indictment 
must negative this exception.64 And the rule is similar if the excep- 
tion, permitting sales for medical and pharmaceutical purposes, 
points directly to the character of the offense and makes a part of 
81 State v. Jaques, 68 Mo. 260. 
82 Surratt v. State, 45 Miss. 601. 
83People v. Haas, 79 Mich. 449, 44 N. 
W. Rep. 928. And, under the same 
statute, an allegation that defendant 
was not "a druggist, nor a person 
whose business was at that time to sell 
drugs and medicines, " is no better. 
People v. Decarie, 80 Mich. 578, 45 N. 
W. Rep. 491. 
84 Roberson v. City of Lambertville, 
38 N. J. Law, 69; State v. McAdoo, 80 
Mo. 216; State v. Scarlett, 38 Ark. 568; 
State v. Abbott, 31 N. H. 434. 
526 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 447 
the description of it.55 But if the exception is contained in a differ- 
ent section or part or proviso of the statute, then, in accordance with 
the rules already stated, it is not necessary to aver that the sale was 
not for any of the permitted purposes.56 And it appears to be the 
doctrine of the federal courts that, even where the exception is in the 
enacting clause, still, if it is not "so incorporated with the language 
defining the offense that the ingredients of the offense cannot be 
accurately and clearly described if the exception is omitted," then it 
is not necessary to allege that the accused is not within the excep- 
tion.57 Hence it is not necessary, in an indictment for a violation of 
the act of congress forbidding the sale of intoxicating liquor in 
Alaska, to allege that such sale was not made for mechanical, medici- 
nal, or scientific purposes.58 
§ 447. Same; Exception as to Imported Liquors. 
In several of the states, the statutes provide that "it shall be 
unlawful and criminal for any person to sell or keep for sale any 
spirituous or intoxicating liquor, . . . provided that nothing in 
this act contained shall be construed to prevent . . . the 
sale or keeping for sale, by the importer thereof, in the original casks 
or packages in which it was imported, of foreign spirituous or intox- 
icating liquor, imported under the authority of the laws of the United 
States," or in substantially similar language. In a prosecution 
under such a statute, it is not necessary for the indictment to nega- 
tive the hypothesis that the sale complained of was made by an 
importer in such original casks or packages.59 If such was the case, 
it is a matter of defense to be set up by the accused. On a similar 
principle, where the statute prohibits the sale without license of 
65 Hirn v. State, 1 Ohio St. 15. 
66 State v. Beneke, 9 Iowa, 203; State 
v. Duggan, 15 R. I. 403, 6 Atl. Rep. 787; 
Townley v. State, 18 N. J. Law, 311; 
Baeumel v. State, (Fla.) 7 South. Rep. 
371. 
67 United States v. Cook, 17 Wall. 173. 
68 Nelson v. United States, 30 Fed. 
Rep. 112. 
59 State v. McGlynn, 34 N. H. 422; 
State v. Fuller, 33 N. H. 259; State v. 
Blaisdell, Id. 388; State v. Gurney, .37 
Me. 149; Comm. v. Edwards, 12 Cush. 
187; Comm. v. Turtle, 11 Gray, 78; 
Comm. v. Gagne, (Mass.) 26 N. E. Rep. 
449; Comm. v. Gay, (Mass.) 26 N. E. 
Rep. 571. 
527 § 448 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
domestic spirituous liquors in any quantity whatever, and of imported 
liquors in any quantity less than that which the revenue laws of the 
United States allow to be imported, it is held that an indictment 
charging the defendant with selling liquors without license, in a 
quantity less than the revenue laws allow to be imported, need not 
specify whether the liquors sold were imported or domestic.60 
§ 448. Negativing License or Authority to Sell. 
The question whether or not the indictment must contain an alle- 
gation denying the existence of a license or authority in the defend- 
ant to make the sale of liquor complained of, depends upon whether 
the fact of his being an unlicensed person is or is not a necessary 
ingredient of the offense charged. If the very point of the alleged 
crime is that the sale was made by a person who was not authorized 
to sell, it is clearly necessary that the indictment should charge, in 
appropriate terms, that the defendant had no license or permit.61 
Nor is the rule altered by the fact that the requirement of a license, 
to justify a sale, may appear by way of exception in the enacting 
clause of the statute,-as, where the act provides that "it shall be 
unlawful for any person, except a person duly licensed therefor," to 
sell intoxicating liquors. Here the offense sought to be charged, 
unlawful selling, could not be fully described without a reference to 
the exception. And therefore it is not of that class of exceptions 
which the law leaves to be set up by the accused. On the contrary, 
the fact that there was no license to cover the sale is an essential 
element of the offense. But a complaint alleging that the defendant 
kept a tippling-house is held to be good under the statute in Ken- 
tucky, and an additional averment that it was kept without a license 
to keep a tayern is unnecessary.62 But on the other hand, if the 
question of a license is not material to the offense, if the elements of 
60 State v. Crowell, 30 Me. 115. 
61 State v. Savage, 48 N. H. 484; 
Comm. v. Thurlow, 24 Pick. 374; 
Comm. v. Hampton, 3 Gratt. 590; Koop- 
man v. State, 61 Ala. 70; State v. 
Horan, 25 Tex. Supp. 271; Howe v. 
State, 10 Ind. 423; State v. Carpenter, 
20 Ind. 219. See Comm. v. Tuttle, 12 
Cush. 502. 
62 Comm. v. Harvey, 16 B. Mon. 1; 
Coram, v. Allen, 15 B. Mon. 1. 
528 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 449 
the offense are complete without the additional fact of the sale hav- 
ing been unlicensed, or if the act charged amounts to an offense 
whether committed by a licensed or unlicensed person, then no aver- 
ment in regard to a license is needed. Thus, on an indictment for 
selling intoxicating liquor to a minor, it is wholly immaterial whether 
the defendant had a license or not, and therefore no allegation on 
that point is necessary.63 So, on an indictment for selling liquor on 
Sunday, it is not required that there should be an averment negativ- 
ing defendant's license to sell, because the license would not author- 
ize a sale on that day.64 And the same is true of an indictment for 
maintaining a liquor nuisance.66 And it is also held that an indict- 
ment for selling liquor without a license need not allege that the 
owner of the liquor sold had no license; if defendant acted as the 
agent of a licensed owner, he can show that fact on the trial.66 
§ 449. Form of Allegation. Denying License. 
In regard to the form of words to be used in an allegation denying 
the license or authority of the defendant to make the sale complained 
of, it is to be observed that this may generally be done in either of 
three ways: (1) by denying particularly the existence of each sort 
of license which might have justified the sale, with a specific reference 
to each of the sources from which such license might have been derived; 
(2) by negativing the existence of some particular variety of license, 
with the addition of a general averment negativing any license or 
authority; (3) by the use of a general formula, without specific ref- 
erence to kinds or sources of license. 
In the first place, it must be noted that, if the pleader attempts to 
negative the various forms of license severally by name, he must 
include all the different forms of license by which the privilege of 
selling liquor may be granted. For instance, if the allegation charges 
the selling "without taking out or then having a license as a grocer, 
dram-shop-keeper, or tavern-keeper," whereas the authorities have 
63 Johnson v. State, 74 Ind. 197. 
64 Lehritter v. State, 42 Ind. 383; Stein 
v. State, 50 Ind. 21. 
68 State v. Collins, 11 Iowa, 141. 
66 State v. Devers, 38 Ark. 517. 
INTOX.LIQ. 34 
529 § 449 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
power to grant a license to a "saloon-keeper" or "liquor-seller," the 
indictment is not sufficient.67 So, in Indiana, an indictment for sell- 
ing liquor "not having procured a license therefor from the commis- 
sioners of the county," is bad; for it does not negative the procure- 
ment of a license from the circuit court, which may be done on an 
appeal from the commissioners' refusal to grant a license.68 So 
again, an indictment charging that the defendant sold liquor "in the 
town of Jacksonville, Neosho county . . . without taking out 
and then having a license . . . [from the tribunal transacting 
the county business of said county of Neosho]" is not sufficient; the 
words in brackets should be omitted, or the words "or from the coun- 
cil of any incorporated town or city," or some other words which would 
show that the liquor wras not sold in any incorporated town or city 
under license from the city council, should be added.69 But if the 
complaint is for the violation of a city ordinance providing for the 
grant of licenses, so that the defendant could not defend on the ground 
of his having a state or county license, no reference to such state or 
county license is necessary.70 Further, the reader will observe that 
if the indictment professes to follow the language of the statute, in 
this particular, it is essential that its terms should be at least as 
broad as those of the law. Thus, if the statute prohibits the sale of 
intoxicating liquor to be drunk in any of various enumerated places, 
an allegation merely that defendant had no license to sell such liquor 
to be drunk "on the premises" is not sufficient.71 It should also be 
noticed that the strictness of this rule may be relaxed in cases where 
the particular kind of license omitted from the negative allegation is 
one which could not possibly have protected the defendant in the 
specific violation of law of which complaint is made. Thus, in an 
67 State v. Pitzer, 23 Kans. 250; State 
v. Haden, 15 Mo. 447. 
68 Meier v. State, 57 Ind. 386; Hender- 
son v. State, 60 Ind. 296; O'Brien v. 
State, 63 Ind. 242. But in New Hamp- 
shire, in an indictment for selling liq- 
uor in less quantity than a gallon, with- 
out a license from the selectmen of the 
town, it is not necessary to allege that 
there were selectmen, nor that the per- 
son so selling had no license from the 
court of common pleas. State v. 
Adams, 6 N. H. 532. 
69 State v. Pittman, 10 Kans. 593. 
70 Frankfort v. Aughe, 114 Ind. 77, 15 
N. E. Rep. 802. 
71 Burke v. State, 52 Ind. 461, 522. 
See Sires v. State, 73 Wis. 251, 41 N. 
W. Rep. 81. 
530 Ch. 19] 
§ 449 
INDICTMENTS UNDER LIQUOR LAWS. 
indictment for selling liquors to be used in and about the premises 
of the seller, it is not necessary to allege that he was not licensed to 
sell for mechanical and medical purposes.72 
Secondly, the indictment may negative the existence in the defend- 
ant of some particular kind of a license, adding a general phrase 
denying all license or authority. Thus, in Missouri, a form much in 
use is: "Without his then and there having a dram-shop-keeper's 
license, inn-keeper's license, or any other legal authority to sell said 
intoxicating liquor at said place, in manner and form aforesaid, con- 
trary," etc. And this is held sufficiently broad.73 And where such 
a formula is employed as "without having obtained a license as a 
tavern-keeper or without being in any way authorized," etc., it is 
ruled that the use of the disjunctive particle "or" furnishes no ground 
of objection to the indictment, for it does not render the statement 
of the offense uncertain.74 Further, the addition of such a general 
phrase will sometimes save the indictment from an objection to one 
or more of the particular specifications. Thus, under a complaint 
charging a sale of liquor by defendant, he not being authorized to 
sell under the provisions of a cited statute, which had been repealed, 
nor by any legal authority whatever, it was held that the allegation 
as to the statute might be rejected as surplusage.75 
Thirdly, in some of the states, (though perhaps not in all,76) the 
courts will accept an allegation which merely denies the defendant's 
right or authority to sell, by the use of a general formula, without 
specific references to statutes or to particular kinds of license. All 
the following forms have been held good, as sufficiently negativing 
the defendant's right to sell in any mode permitted or not prohibited 
by law:- 
"Without then and there having any license, appointment, or 
72 Comm. v. Shaw, 5 Cush. 522. 
73 State v. Sutton, 25 Mo. 300; State 
v. Hornbeak, 15 Mo. 478; State v. Fan- 
ning, 38 Mo. 359. 
74 People v. Gilkinson, 4 Park. Crim. 
26. 
76 Comm. v. Peto, 136 Mass. 155. 
76 In Vermont, it has been ruled that 
the indictment ought to allege that the 
respondent was not authorized to sell 
liquors in any mode designated by the 
statute, particularly negativing each 
source from which he might have ob- 
tained a license. State v. Sommers, 3 
Vt. 156. But compare State v. Clark, 
23 Vt. 293. See, also. State v. Webster, 
10 N. J. Law, 293. 
531 § 449 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
authority therefor, first duly had and obtained as required by law in 
this commonwealth, and without then and there having any legal 
authority whatever."77 
"Without being duly authorized and appointed thereto according 
to law."78 
"Without having any legal appointment or authority therefor."79 
"Not having then and there any authority or appointment accord- 
ing to law to make such sale."80 
"Without any authority so to do, contrary to the form of the stat- 
ute." 81 
"Without having a license for that purpose continuing in force, 
contrary to the form of the statute."82 
"Not being then and there licensed according to the laws of Indiana, 
in force at the time, to sell intoxicating liquor at retail. "83 
"Not being then and there licensed according to law to vend" 
intoxicating liquors.84 
Where the statute makes it a misdemeanor to sell liquor without 
first obtaining "a license or permit therefor, " an allegation that defend- 
ant sold liquor "without first having obtained a license therefor," and 
that he "had no license authorizing such sale," is sufficient without 
alleging that he had no "permit," as that word is used merely to 
denote a particular kind of license issued to pharmacists.85 
With particular reference to unauthorized sales by persons not 
licensed as town agents, in the jurisdictions where that system 
obtains, it is said that it is not necessary to set forth that the defend- 
ant was not appointed an agent for selling for certain purposes, etc. 
An averment that he was not "duly" or "legally" appointed, or "was 
not appointed" such agent, or that he "was not" such agent, at the 
time of the sale charged, is sufficient.88 And as the authority of such 
77 Comm. v. Dunn, 14 Gray, 401; 
Comm. v. Wilson, 11 Cush. 412. 
78 Comm. v. Clapp. 5 Gray, 97; Comm, 
v. Keefe, 7 Gray, 332; Comm. v. Ro- 
land, 12 Gray, 132; Comm. v. Boyle, 14 
Gray, 3; Comm. v. Clark, 14 Gray, 367. 
79 Comm. v. Lafontaine, 3 Gray, 479. 
80 Comm. v. Conant, 6 Gray, 482. 
81 Norton v. State, 65 Miss. 297, 3 
South. Rep. 665. See, also, Trost v. 
State, 64 Miss. 188, 1 South. Rep. 49. 
8-State v. Wishon, 15 Mo. 503. 
83 State v. Buckner, 52 Ind. 278. 
84 Coverdale v. State, 60 Ind. 307. 
86 Neuman v. State, 76 Wis. 112, 45 N. 
W. Rep. 30. 
86 State v. Barker, 3 R. I. 280; State v. 
Johnson, Id. 94. 
532 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 450 
an agent is limited to sales made within the city or town for which 
he is appointed, it is unnecessary that the indictment should negative 
his being agent for any other city or town than that in which the 
sale is alleged to have been made.87 Where two or more persons 
are jointly indicted, the language of this allegation should be broad 
enough to apply to each and all of them. But it is held that an 
indictment alleging that A. and B., "not being a licensed taverner or 
retailer," did sell, etc., sufficiently negatives the qualification of each 
of them.88 And conversely, an allegation that A. and B. were not 
town agents is held sufficient, as it imports that neither of them was 
such an agent.89 
§ 450. Referring to the Statute. 
If different sections of the same statute, on the subject of the liq- 
uor traffic, impose different penalties, the indictment must show on 
which of the sections it is founded.90 And so, if the statute does 
not put all sales upon the same footing, but makes a substantial dis- 
tinction, in its separate sections, in the sales which make parties 
responsible, although it provides the same penalties for all unlawful 
sales, there is a substantial reason for requiring the indictment to 
indicate which section the defendant is charged with violating.91 
But except in such cases as these, it is sufficient to refer to the stat- 
ute generally, without a reference to the section imposing the partic- 
ular penalty.92 In Ohio, the decisions sanction the practice of indi- 
cating the law alleged to have been violated by referring to the num- 
bered sections of the revised statutes.93 And in Massachusetts, a 
complaint which charges an unlawful sale of intoxicating liquor 
"contrary to the form of the statute in such case made and pro- 
vided," need not allege more specifically whether the offense was in 
violation of one or the other of two statutes passed in different 
years.94 But if there are two statutes, one general throughout the 
87 State v. Shaw, 35 N. H. 217. 
88 State v. Burns, 2J N. H. 550. 
89 State v. Wadsworth, 30 Conn. 55. 
80 State v. Leavitt, 63 N. H. 381. 
91 Benalleck v. People, 31 Mich. 20 
92Kee v. McSweeney, 15 Abb. New 
Cas. 229. 
93 Oshe v. State, 37 Ohio St. 494. 
94 Comm. v. Keefe, 7 Gray, 332. 
533 § 452 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
state, and the other special to a particular locality, the indictment 
should show which of the two the defendant is charged with violat- 
ing; for otherwise it will not be sufficiently certain to bar a second 
prosecution for the same offense.95 A statute which forbids any per- 
son to sell or give away intoxicating liquors within a certain county 
is a public statute, though of local application, and need not be spe- 
cially pleaded in an indictment.96 And the same is true of an act 
prohibiting the sale of liquor within a certain distance of a desig- 
nated locality.97 
§ 451. Conclusion, Against the Form of the Statute. 
It has been said that where one statute defines an offense against 
the system of excise of the state, and another statute prescribes the 
punishment, the indictment must conclude in the plural form, contra 
formam statutorum, or, "against the statutes in such case made and 
provided;" but that if the offense is fully defined, both as to its con- 
stituent elements and its punishment, in one of the statutes, although 
the other statute may impose another and further penalty, the indict- 
ment may well conclude in the singular form.98 In some of the 
states, all indictments are required to contain an allegation that the 
acts complained of were "against the peace and dignity" of the state. 
But in some others, it is considered that this formula is not neces- 
sary to be inserted in an indictment for a statutory misdemeanor 
under the liquor laws.99 
§ 452. Complaint for Violation of Municipal Ordinance. 
Most of the rules and principles stated in the foregoing sections 
will be found applicable, mutatis mutandis, to the case of complaints 
96 Camp v. State, 27 Ala. 53. See 
Olmstead v. State, 89 Ala. 16, 7 South. 
Rep. 775; Seifried v. Comm., 101 Pa. 
St. 200; Stone v. State, (Miss.) 7 South. 
Rep. 500. 
96 Powers v. Comm., (Ky.) 13 S. W. 
Rep. 450. 
97 State v. Wallace, 94 N. Car. 827. 
98 King v. State, 2 Ind. 523; Kane v. 
People. 8 Wend. 212; Butman's Case, 8 
Me. 113; State v. Robbins, 1 Strobh. 355; 
State v. Dayton, 23 N. J. Law, 49; 
State v. Wilbor, 1 R. 1.199, 36 Am. Dec. 
245. 
99 State v. Miller, 24 Conn. 519. 
534 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 453 
under municipal ordinances on the subject of liquor-selling. It is 
said that the facts constituting the offense must be set out in the 
complaint as fully and completely as they are required to be stated 
in an indictment for a similar offense against the state.100 And if 
the complaint quotes the ordinance, but fails to show in what manner 
it was violated, it is defective.101 But if the complaint substantially 
follows the language of the ordinance under which the prosecution 
is brought, it will in general be sufficient.102 It is also held that it 
is sufficient to state in the complaint that the prosecutor has just 
cause to suspect, and does suspect, the person charged, provided the 
complaint in all other respects conforms to the requirements of the 
common law.103 
Part II. Particular Averments. 
§ 453. Alleging Character or Occupation of Defendant. 
If the statute upon which an indictment is founded makes the act 
charged an offense only when it is done by a person belonging to a 
particular class, or possessing a certain qualification, or pursuing a 
given business, so that the crime can be committed only by one who 
is so situated,-as, where the statute forbids the sale of liquor, under 
certain circumstances, by "merchants," "licensed retailers," "whole- 
sale liquor-dealers," etc.,-the indictment must show on its facethat 
the accused comes within the class designated by the statute.104 Thus, 
a complaint under a statute forbidding the sale of liquor after "notice 
to any tavern, hotel-keeper, merchant, grocer, saloon-keeper, distiller, 
brewer, or any other person having or keeping any such intoxicating 
liquors," etc., must allege that defendant was one of the persons enu- 
merated.105 So, where one statute forbids any person to sell any 
100 Cunningham v. Berry, 17 Oreg. 
622, 22 Pac. Rep. 115. 
101 Marietta v. Alexander, (Ga.) 12 S. 
E. Rep. 681. 
102 Mankato v. Arnold, 36 Minn. 62, 30 
N. W. Rep. 305. 
103 Roberson v. Lambertville, 38 N. J. 
Law, 69. 
104 State v. Ryan, 80 Mo. App. 159; 
State v. Runyan, 26 Mo. 167; State v. 
Andrews, Id. 169; Bode v. State, 7 Gill, 
326; State v. Martin, 34 Ark. 340; Peo- 
ple v. Page, 3 Park. Crim. 600; State v. 
Heitsch, 29 Minn. 134, 12 N. W. Rep. 
353. 
105 State v. Heitsch, 29 Minn. 134, 12 
N. W. Rep. 353. 
535 § 453 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
"fermented or distilled liquor" on Sunday, and another statute for- 
bids any keeper of a dram-shop to sell any "intoxicating liquors" on 
Sunday, an indictment charging a person with selling "intoxicating 
liquors" on Sunday is bad, unless it also charges that he was the 
keeper of a dram-shop.106 We find, however, an occasional decision 
that it is sufficient if the character or occupation of the defendant 
appears in evidence, or is otherwise satisfactorily established before 
rendition of judgment.107 But this is not in harmony with the gen- 
eral principle which requires the indictment to show every fact nec- 
essary to constitute the offense. And in accordance with the same 
rule, if the statute imposes different penalties upon one class of per- 
sons from those imposed upon another class, for doing the same act, 
the indictment should indicate the class to which the defendant 
belongs. Such, for example, is the case where the law imposes a fine 
upon any person selling liquor to minors, but, if the vendor is a 
licensed dealer, imposes the additional penalty of forfeiture of his 
license.108 But on the other hand, if the character or occupation of 
the defendant is not an essential ingredient of the offense,-if the 
statute prescribes a punishment for all persons alike who may do the 
prohibited act, irrespective of their calling or business,-it is not nec- 
essary that the indictment should contain any such allegation.109 
Thus, an indictment for selling liquor without a license need not charge 
that defendant was a liquor-dealer; for no one can sell without license, 
whatever his business may be.110 But if the defendant is described 
in the indictment as a "trader in goods, wares, and merchandise, 
and spirituous liquors," there is no room for objection on that 
ground.111 And an indictment against two defendants jointly, for 
keeping open a saloon where intoxicating liquors were sold during 
the day of an election, is not defective because it fails to allege a part- 
106 State v. Lisles, 58 Mo. 359. 
107 Brown v. State, 2 Head, 180. 
108 Baer v. Comm., 10 Bush. 8. 
309 State v. Butcher, 40 Ark. 362; John- 
son v. People, 83 Ill. 431; Comm. v. 
Rucker, 14 B. Mon. 228; Comm. v. Pear- 
son, 3 Mete. (Mass.) 449; Comm. v. 
Luddy, 143 Mass. 563, 10 N. E. Rep. 448; 
State v. Farmer, 104 N. Car. 887, 10 8. 
E. Rep. 563. 
110 State v. Butcher, 40 Ark. 362. 
111 State v. Fant, 2 La. Ann. 837; State 
v. Bogan, Id. 838. 
536 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 455 
nership between the defendants, or that either of them owned or con- 
trolled the saloon.112 
§ 454. Misnomer of Defendant. 
It is a familiar rule of criminal pleading that a substantial mistake 
in the name of the defendant, as given in the indictment, is good 
ground for a plea in abatement; but a misnomer is waived by a plea 
of not guilty. This rule applies as well to prosecutions under the 
liquor laws as to any other criminal cases. Thus, in a case in Ala- 
bama, the defendant was indicted under the name of "Zachariah 
Lawrence," for selling liquor without a license. He pleaded in 
abatement that his name was "Zachary Taylor Lawrence." The 
plea was sustained.113 In Vermont, where an information for main- 
taining a liquor nuisance named the respondent as "Thomas J.," 
and he pleaded in abatement that his name was "Timothy J.," it was 
held that the information might be amended.114 
§ 455. Allegations of Sales. 
In a majority of the prosecutions instituted under the liquor laws, 
the gist of the offense is a sale of liquor, made under circumstances 
which render it unlawful. In such cases, the sale should be alleged 
in the indictment by the use of proper technical terms. There is, 
however, some authority for thinking that the term "sell" is not abso- 
lutely indispensable in this connection. In a case in Massachusetts, 
an indictment was held good which alleged that the defendant "did 
presume to be, and was, a retailer of spirituous liquors to" a person 
named. The court held that this language substantially charged a 
sale. "To retail," they said, "is to sell in small quantities. To retail 
to any particular individual is to sell to him in a small quantity."115 
But the careful pleader will make use of the one word which precisely 
112Janks v. State, (Tex. App.) 15 S. 
W. Rep. 815. 
113 Lawrence v. State, 59 Ala. 61. 
114 State v. Murphy, 55 Vt. 547. 
115 Comm. v. Kimball, 7 Mete. (Mass.) 
304. The omission of the auxilary verb 
"did," which should have been joined 
with the words "sell and dispose of," 
is not fatal upon a motion in arrest. 
State v. Whitney, 15 Vt. 298. 
537 § 455 
LAW OF INTOXICATING LIQUORS 
[Ch. 19 
describes the transaction. If this allegation is broader than the 
terms of the statute, the superabundant words may usually be dis- 
regarded, provided there is no essential repugnance. Thus, where 
the indictment charges that the defendant, without a license, "did 
unlawfully sell for one dime, barter for, and give away, certain intox- 
icating liquor," and the statute does not make it an offense to "give 
away" or "barter for" liquor, the indictment will be sustained against 
a motion to quash.116 And conversely, although the statute uses 
additional or cumulative terms, it does not follow that the indictment 
must employ them all. For instance, where the statute is directed 
against any one who shall "sell or be in any wise concerned in sell- 
ing," it is enough if the indictment simply charges that the defend- 
ant "sold" liquors.117 So, under a statute providing that no unli- 
censed person shall "barter, sell, exchange, or otherwise dispose of, 
for his gain or benefit, a»y spirituous liquors," it is not necessary that 
the indictment should allege that the sale charged was made by the 
defendant "for his gain or benefit."118 Where the sale was made 
to one who acted as the agent of an undisclosed principal, it is held 
that it may be alleged as a sale to the agent, or it may be charged 
as a sale to the principal, if he is afterwards discovered.119 If the 
sale was made by an agent or servant of the defendant, the name of 
such person should be given, if it is intended to charge the act as a 
sale by the master or principal. But if the latter is indicted for 
being "interested in" an unlawful sale, it is not necessary to name 
the subordinate through whom the sale was made.120 When the 
defendant is charged under a statute against selling liquor as a travel- 
ing agent for another person or firm, the indictment should name the 
person or firm for whom the accused acted as agent.121 Where the 
statute provides that a delivery of liquors in a non-license town shall 
116 Steel v. State, 26 Ind. 92. See, also, 
State v. Fant, 2 La. Ann. 837; State v. 
Finan, 10 Iowa, 19; State v. Woodward, 
25 Vt. 616. 
117 Needham v. State, 19 Tex. 332. 
118 Anderson v. People, 63 Ill. 53. See, 
also, Arrington v. Comm., (Va.) 12 S. 
E. Rep. 224. 
119 Comm. v. Very, 12 Gray, 124; 
Comm. v. McGuire, 11 Gray, 460; State 
v. Wentworth, 35 N. H. 442. 
120 O'Bryan v. State, 48 Ark. 42, 2 S. 
W. Rep. 339. 
121 State v. Higgins, 53 Vt. 191. 
538 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 456 
be deemed a sale there, an indictment containing an ordinary charge 
of a sale in such town is sufficient.122 
§ 456. Alleging Evasions or Devices to Conceal a Sale. 
We have already seen that any transaction which in reality 
amounts to a sale of liquor, in violation of law, will be punished as 
such, whatever devices or subterfuges the parties may resort to for 
the purpose of concealing the sale or evading the statute.123 Where 
such cases are met by the terms of the law,-as, where the statute 
provides that "the giving away of intoxicating liquors, or other shift 
or device to evade the provisions of this act, shall be deemed and 
held to be an unlawful selling,"-the indictment may simply allege 
a "sale," and under this, all the facts necessary to constitute a 
sale may be proved.124 So, where an unlicensed person sells liquor 
with another article and receives pay for both together, it is sufficient 
to allege the sale of the liquor only.125 And so, when the statute 
speaks of selling liquor directly or indirectly, or on any pretense or 
by any device, it only designs to describe different methods of com- 
mitting the same offense; and it is not necessary that the indictment 
should state in what method the selling was accomplished.126 But 
when the statute does not prohibit the giving away of liquors, unless 
done "with the purpose of evading the law," it is thought that where 
the transaction charged as the gravamen of the offense pretended to 
be a gift, though it was really a sale, the indictment, to be sufficient, 
must charge that the gift was made "with the purpose of evading the 
law."127 And if the statute prohibits the giving away of liquor "in 
consideration of the purchase of other property," the proper method 
is to charge a gift, adding the words of the statutory qualification.128 
122 State v. Basserman, 54 Conn. 88, 6 
Atl. Rep. 185. 
123 Supra, § 405. 
124 People v. Sweetser, 1 Dak. 308, 46 
N. W. Rep. 452. 
125Comm. v. Thayer, 8 Mete. (Mass.) 
525. 
126 State v. Devine, 4 Iowa, 443. 
127 Stallworth v. State, 16 Tex. App. 
345. But a prohibited sale being a viola- 
tion and not an evasion of the law, an 
indictment need not allege the sale 
to have been made with that purpose. 
McMillan v. State, 18 Tex. App. 375. 
128 State v. Finan, 10 Iowa, 19. 
539 § 458 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
§ 457. Charging Use or Disposition of Liquors. 
There are some cases in which it will be necessary for the indict- 
ment to show the purpose for which the liquors were sold, or the use 
or disposition intended to be made of them. For example, where, 
to constitute the offense which the indictment attempts to charge, 
the defendant, being a druggist, must have sold the liquor as a bev- 
erage, the indictment is fatally defective if it does not so charge.129 
And so an indictment for the sale of cider, under a statute which 
only prohibits its sale "as a beverage or for tippling purposes," must 
allege that it was sold for such purposes.130 Sometimes the necessity 
of charging the purpose of the sale will be sufficiently met by a neg- 
ative allegation, to the effect that the liquor was not sold for any of 
the specially excepted and permitted uses; as under a general pro- 
hibitory law, forbidding all sales except for medical, scientific, or 
mechanical purposes.131 
§ 458. Knowledge and Intent of Vendor. 
If it is an essential ingredient of the offense charged that the 
defendant should have known the special facts which made the sale 
unlawful, such knowledge should be alleged in the indictment. But 
in all cases where ignorance or mistake of fact would not constitute 
a defense, such an allegation is not needed. Thus, if the statute 
prohibiting the sale of liquor to minors does not provide that the act 
must be "knowingly and wilfully" done, to constitute the offense, it 
is not necessary that these words should appear in the indictment.132 
Regard must be had to the statute. And if the indictment does not 
contain enough to make out the statutory misdemeanor, it will not 
be aided by the employment of the common law formulas. For 
instance, under a statute prohibiting the sale of intoxicating liquors 
129 State v. Buckner, 20 Mo. App. 420. 
See, also, People v. Hinchman, 75 Mich. 
587, 42 N. W. Rep. 1006. 
130 State v. Dunlap, 81 Me. 389,17 Atl. 
Rep. 313. 
131 State v. Shackle, 29 Kans. 341. 
132Comm. v. Sellers, 130 Pa. St. 32, 18 
Atl. Rep. 541. 
540 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 459 
"as a beverage," an indictment charging that defendant did sell 
intoxicating liquors "maliciously and wilfully" does not state an 
offense.133 
§ 459. Allegation as to Time. 
An indictment for an unlawful sale of liquor should always con- 
tain an allegation of the time when the sale charged was made.134 
But the degree of particularity with which the date must be given 
will depend, in large measure, upon whether the indictment is drawn 
under common-law rules or under statutes dispensing with a precise 
statement of time where time is not of the essence of the offense. 
Under the former system, a complaint which does not state the year 
in which the alleged sale was made is fatally defective.135 And it 
must also specify the particular day; and if the day of the month is 
left blank, although the month and the year may be named, it is not 
sufficient.136 As to the sufficiency of a charge that the offense was 
committed "on or about" a certain specified day, the authorities are 
not harmonious. In some jurisdictions, such an allegation is held 
good at common law; in others, it is considered insufficient; in oth- 
ers, it passes muster by the aid of a statute.137 It is usual and 
proper to repeat allegations of time and place, before material aver- 
ments in the same count, by the use of the phrase "then and there." 
But it is said that a count alleging that the defendant did "then and 
133 State v. Hafsoos, (S. Dak.) 47 N. 
W. Rep. 400. 
134 Comm. v. Adams, 1 Gray, 481; 
Comm. v. Kingman, 14 Gray, 85; Comm, 
v. Thurlow, 24 Pick. 374; State v. Ken- 
nedy, 36 Vt. 563; State v. O'Keefe, 41 
Vt. 691; State v. Bruce, 26 W. Va. 153; 
Clark v. State, 34 Ind. 436; State v. 
Zeitler, 63 Ind. 441. See Olmstead v. 
State, (Ala.) 9 South. Rep. 737; Phillips 
v. State, (Ga.) 12 S. E. Rep. 650. 
136 State v. Kennedy, 36 Vt. 563. An 
allegation in an indictment that the of- 
fense therein charged was committed 
on a certain specified "day of Septem- 
ber now past, " is not stated with suffi- 
cient certainty. Comm. v. Griffin, 3 
Cush. 523. 
136 Clark v. State, 34 Ind. 436. Com- 
pare Savage v. Comm., 84 Va. 582, 5 S. 
E. Rep. 563. 
137 See State v. O'Keefe, 41 Vt. 691; 
Rawson v. State, 19 Conn. 292; Comm, 
v. Purdy, 147 Mass. 29; State v. Lavake, 
26 Minn. 526, 6 N. W. Rep. 339, 37 Am. 
Rep. 415. See, also. State v. McMickle, 
34Tex. 676; State v. Elliott, Id. 148; Peo- 
ple v. Aro, 6 Cal. 207, 65 Am. Dec. 503; 
Farrell v. State, 45 Ind. 371; Cokely v. 
State, 4 Iowa, 477; State v. Harp, 31 
Kans. 496, 3 Pac. Rep. 432; State v. 
Tuller, 34 Conn. 280; Fish v. Manning, 
31 Fed. Rep. 340. 
541 § 459 
LAW' OF INTOXICATING LIQUORS. 
[Ch. 19 
there" unlawfully sell liquor, no other reference to time being made 
in that count, although a definite time was fixed in the preceding 
count, is demurrable.138 If the allegation of time undertakes more 
than is necessary, (as, specifying a day of the week, when that does 
not enter into the offense,) the surplus matter may be rejected; it is 
no ground for dismissing the complaint or quashing the indictment.139 
So a complaint for not closing a saloon at nine o'clock is not bad 
because nine o'clock of the evening is not specified.140 And a com- 
plaint which charges the defendant with having been engaged in an 
illegal occupation from a specified day "unto the day of the date 
hereof," the complaint being fully dated as to day, month, and year, 
sufficiently alleges the time of the offense.141 
In several of the states, as we have already intimated, the statutes 
provide that an indictment shall not be rendered invalid for stating 
imperfectly the time at which the offense was committed, where time 
is not of the essence of the offense. Under such a provision, a general 
allegation as to the time of the sale charged is sufficient.142 And it is 
not invalidated by the fact that the day of the month is not given, if 
the year and month are stated.143 And it has been held sufficiently 
certain to allege that the sale was made "on or about the months of 
January, February, and March."144 It is also ruled that time is not 
a material ingredient of the offense of keeping a saloon wherein intox- 
icating liquors were sold, and under an indictment charging sales on 
a specified day, a conviction may be had for sales made at any time 
within three years prior to the finding of the indictment.146 An aver- 
ment that the defendant sold liquor "on the 6th, 7th, 8th, and 9th 
days of June, and for thirty days previous to said 6th of June, and 
on each and every of said days," has been held sufficient to warrant 
the proof of any sales within that period.146 
138 State v. Bruce, 26 W. Va. 153. 
139 State v. Fletcher, 13 R. I. 522. 
140 People v. Husted, 52 Mich. 624, 18 
N. W. Rep. 388. 
141 Comm. v. Hagarman, 10 Allen, 
401. 
142 Arrington v. Comm., (.Va.) 12 S. E. 
Rep. 224. 
143 Savage v. Comm., 84 Va. 582, 5 S. 
E. Rep. 563. 
144 State v. Findley, 77 Mo. 338. 
145 State v. Wambold, 72 Iowa, 468, 34 
N. W. Rep. 213. 
146 Mayor of New York v. Mason, 4 E. 
D. Smith, 142. Compare Comm. v. 
Adams, 1 Gray, 481; Comm. v. Traverse, 
11 Allen, 260. 
542 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 461 
§ 460. Laying the Time with a Continuando. 
When the offense charged is continuous, consisting of a succession 
of acts, or a prohibited traffic carried on from day to day, it may 
properly be laid with a continuando.141 And where an offense of this 
kind is charged to have been committed on a certain specified day 
and "on divers other days and times between" such day and the day 
of finding the indictment, the allegation is good, although the date 
specified may have been beyond the period of limitations.148 But this 
form of allegation is not strictly proper where the offense charged is not 
continuous in its nature, but consists of a single act. Nevertheless, 
if the date specified is within the time of limitations and is laid with 
sufficient certainty, the clause in relation to "divers other days and 
times" may be rejected as surplusage, and so the indictment will be 
sustained.149 
§ 461. Allegation as to Place. 
An indictment for an unlawful sale of liquor should always contain 
an allegation of the place where the sale charged was made.150 And 
in some states it is held that an allegation which does not charge the 
offense to have been committed in any other place than the county is 
not good.151 But it need not designate the place of sale with any 
greater accuracy than by naming a particular town or city in the 
appropriate county.152 Thus, an indictment which describes the 
defendant as "J. S. of N., in the county of W.," and alleges that he 
147 Our House v. State, 4 Greene, 
(Iowa,) 172. 
148 State v. Cofren, 48 Me. 364. 
149 Dansey v. State, 23 Fla. 316, 2 
South. Rep. 692; Comm. v. Bryden, 9 
Mete. (Mass.) 137; Comm. v. Walton, 11 
Allen, 238; Comm. v. Kendall, 12 Cush. 
414; Comm. v. Rhodes, 148 Mass. 123, 
19 N. E. Rep. 22; South v. Comm., 79 
Ky. 493; People v. Gilkinson, 4 Park. 
Crim. 26. 
io° Young v. Comm., 14 Bush, 161; 
Grimme v. Comm., 5 B. Mon. 263; 
State v. Peterson, 38 Minn. 143, 36 N. 
W. Rep. 443; Loughridge v. State, 
(Miss.) 3 South. Rep. 667; Comm. v. 
Head, 11 Gratt. 819; Arrington v. 
Comm., (Va.) 12 S. E. Rep. 224. Com- 
pare State v. Cottrill, 31 W. Va. 162, 6 
S. E. Rep. 428. 
161 Grimme v. Comm., 5 B. Mon. 263. 
Compare State v. Emery, 98 N. Car. 668, 
3 S. E. Rep. 636. 
182 Zumhoff v. State, 4 Greene, (Iowa,) 
526; Savage v. Comm., 84 Va. 619, 5 S. 
E. Rep. 565. 
543 § 461 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
sold liquor unlawfully "at N.," though without saying "said N.".or 
adding the name of the county, sufficiently states the place of the 
commission of the offense.153 But a complaint which merely charges 
an unlawful sale of liquor "at W.," without saying "at the town of 
W.," and without giving the name of the county, is fatally defective.154 
Further than specifying the county and town it is not generally nec- 
essary to go. Thus, the indictment need not state whether the sale 
was made from a dwelling-house, or from a tavern, or other place of 
common resort, although the statute may prescribe different rules as 
to the evidence required in the two cases.155 The exception to this 
rule, however, is found in cases where the acts complained of are such 
as, under the local statute, would constitute the particular place where 
they were done a nuisance. Here the place must be described with 
sufficient accuracy to identify it. Under this requirement, it is held 
that an allegation that the offense was committed "at 0., in the county 
of R., in a stone building used and occupied by the defendant as a 
grocery and a dwelling-house at the time of the sale," is a sufficient 
description of the place.156 And so is an allegation describing the 
place as a certain one-story frame building, in a designated city, 
known as West's drug-store.157 But it is held that an indictment 
charging that the defendant "on or about the eighteenth day of Novem- 
ber, A. D. 1865, a certain frame building . . . did sell intoxi- 
cating liquors," is bad on motion to quash, by reason of the omission 
of the word "in" before the words "a certain frame building." In 
making this decision, the court said that the place of the alleged 
offense must be so described in the indictment as that an officer exe- 
cuting process would be able to identify it, one reason being that, 
under the statute, all places where intoxicating liquors were sold in 
violation of law might be shut up and abated as nuisances.158 
163 Comm. v. Cummings, 6 Gray, 487. 
164 Comm. v. Barnard, 6 Gray, 488. 
165 Comm. v. Clapp, 5 Gray, 97. See 
Burch v. Republic, 1 Tex. 608; Coch- 
ran v. State, 26 Tex. 678. 
166 State v. Muntz, 3 Kans. 383. 
167 West v. Columbus, 20 Kans. 633. 
163 Hagan v. State, 4 Kans. 89. 
544 Ch. 19] 
§ 463 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 462. Laying the Venue. 
The caption or introduction of an indictment should definitely 
name the county and state. And when this is done, the name of the 
state need not be repeated in the counts, and the county may there' 
after be referred to as "said county of A.," or as "the county afore- 
said." Thus, for example, if the indictment begins with the words 
"The jurors of the grand jury of the county of Riley and state of 
Kansas empanelled," an allegation, in the body of the indictment, 
that the offense was committed "at Ogden, in the county of Riley 
aforesaid" is a sufficient laying of the venue.159 So also, where the 
indictment is entitled "The district court for the counties of Lyon 
and Lincoln, and state of Minnesota," the place of the commission 
of the offense is sufficiently described by an allegation that it was 
done "in said county of Lincoln."160 But it will be observed that in 
a case like the last, where two counties are named in the caption or 
introduction, it would not be sufficient to refer to "the county afore- 
said," because it would be ambiguous. 
§ 463. Where Place is of the Essence of the Offense. 
There are some cases in which the place of its commission is so 
far a material element of an offense as to require to be stated with 
great particularity. Thus, under a statute prohibiting the sale of 
malt liquors "at or within three miles of Providence College," an 
indictment charging that defendant sold such liquors "at Nettleton, 
in violation of an act of the legislature," (referring to the said stat- 
ute by date and title,) but not alleging that the sale was made within 
three miles of Providence College, was held fatally defective.161 So, 
where, the law appropriates all moneys accruing from fines for viola- 
tions of the liquor laws committed within the limits of a city to the 
use of the city, and makes a different disposition of the fines where 
159 State v. Muntz, 3 Kans. 383; State 
v. Shaw, 35 N. H. 217. 
160 State v. Lavake, 26 Minn. 526, 6 N. 
W. Rep. 339, 37 Am. Rep. 415. 
161 Ragan v. State, 67 Miss. 332, 7 
South. Rep. 280. 
INTOX.LIQ. 35 
545 § 4G4 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
the offenses were committed beyond the city limits, the exact place 
of an offense charged becomes material and must be proved as laid.162 
So, an indictment under the local option law should specify the pre- 
cinct where the liquor was sold.163 
§ 464. Allegation of Name of Purchaser. 
In an indictment for an unlawful sale of intoxicating liquors, is it 
necessary to allege the name of the person to whom the sale was 
made ? Upon this question the authorities are so entirely divided 
that neither side can be said to be supported by a general current of 
judicial opinion. In the first place, there are many respectable 
decisions to the effect that the name of the vendee, if known, must 
be stated in the indictment, and if it is not known to the prosecutor 
or the grand jury, that fact must be stated as an excuse.164 These 
rulings proceed upon the ground that, without such an allegation, 
the indictment would not possess the requisite degree of certainty. 
Says the supreme court of Minnesota: "An offense charged should 
be described with certainty sufficient to inform the defendant of the 
particular thing with which he is charged. Otherwise he cannot 
know how to prepare his defense. Such certainty is also requisite 
that he may conveniently avail himself of an acquittal or conviction, 
in bar of a subsequent prosecution for the same matter."165 So in 
Texas it is asked: "How is he to know what particular sale he is to 
answer for, unless the indictment in some way identifies the sale 
complained of by the state as a violation of law? Must he come 
prepared to prove the legality of each of the thousand sales he has 
162 Legori v. State, 8 Sm. & Mar. 697. 
163 Young v. Comm., 14 Bush, 161. 
164 Comm. v. Dean, 21 Pick. 334; State 
v. Doyle, 11 R. I. 574; State v. Walker, 
3 Harr. (Del.) 547; Roberson v. Lam- 
bertville, 38 N. J. Law, 69; State v. 
Plainfield, 44 N. J. Law, 118; Capritz v. 
State, 1 Md. 569; State v. Faucett, 4 
Dev. & B. L. 107; State v. Stamey, 71 
N. Car. 202; State v. Schroder, 3 Hill, 
(S. Car.) 61; State v. Steedman, 8 Rich. 
Law, 312; Dorman v. State, 34 Ala. 216; 
Dixon v. State, 21 Tex. App. 517, 1 S. 
W. Rep. 448; State v. Stuckey, 2 Blackf. 
289; Blodget v. State, 3 Ind. 403; State 
v. Burgess, 4 Ind. 606; McLaughlin v. 
State, 45 Ind. 338; State v. Allen, 32 
Iowa, 491; Wilson v. Comm., 14 Bush, 
159; State v. Pischel, 16 Nebr. 608, 21 
N. W. Rep. 468; Martin v. State, 
(Nebr.) 46 N. W. Rep. 618; State v. 
Schmail, 25 Minn. 368. 
106 State v. Schmail, 25 Minn. 368. 
546 Ch. 19] 
§ 464 
INDICTMENTS UNDER LIQUOR LAWS. 
made? To require this would be unreasonable and oppressive. It 
is not unreasonable to devolve upon the state the not difficult duty 
of informing the accused which one of the sales made by him is 
complained of as unlawful."366 "The statute makes each act of 
selling a crime. It is proper that the act be so described as to 
identify it from other acts of a similar kind as near as practicable. 
And this can be best done by giving the name of the vendee if 
known, or if unknown, so alleged."167 To this view also inclines 
the federal circuit court in Oregon, although it holds that the omis- 
sion to name the purchaser is not sufficient cause for the reversal of 
the judgment on error.168 
On the other hand, a great number of authorities sustain the 
doctrine that it is not necessary for the indictment either to name 
the purchaser or to allege that he is unknown, or to make any reference 
to him further than that implied in the allegation that a sale was 
made.169 In this connection, we quote from a decision in Louisiana 
166 Dixon v. State, 21 Tex. App. 517, 1 
S. W. Rep. 448. 
167 State v. Pischel, 16 Nebr. 608, 21 
N. W. Rep. 468. 
168 Nelson v. United States, 30 Fed. 
Rep. 112. Said Judge Deady: "I do 
not think this omission is a matter that 
can be alleged here as error. The name 
can only be required for the more con- 
venient identification of the transac- 
tion. It is not a necessary ingredient 
of the offense, particularly where the 
prohibition to sell is general, irrespect- 
ive of persons. If it was a case of pro- 
hibition to sell to a particular person 
or class of persons, as a woman or 
minors, there would be more reason 
for holding that the name of the per- 
son to whom the sale was made is a 
necessary part of the statement of the 
offense. " 
169 United States v. Gordon, 1 Cranch 
C. C. 58; People v. Adams, 17 Wend. 
475; State v. Munger, 15 Vt. 290; Comm, 
v. Schoenhutt, 3 Phila. 20; Comm. v. 
Baird, 4 Serg. & R. 141; State v. Bailey, 
43 Ark. 150; Johnson v. State, 40 Ark. 
453; State v. Parnell, 16 Ark. 506, 63 
Am. Dec. 72; McCuen v. State, 19 Ark. 
630; Cochran v. State, 26 Tex. 678; 
State v. Heldt, 41 Tex. 220; Hill v. Dal- 
ton, 72 Ga. 314; Lea v. State, 64 Miss. 
201, 1 South. Kep. 51; Riley v. State, 43 
Miss. 397; Dansey v. State. 23 Fla. 316, 
2 South. Rep. 692; Jordan v. State, 22 
Fla. 528; State v. Kuhn, 24 La. Ann. 474; 
State v. Brown, 41 La. Ann. 771, 6 
South. Rep. 638; State v. Hickerson, 3 
Heisk. 375; State v. Staley, 3 Lea, 565; 
Hulstead v. Comm., 5 Leigh, (Va.) 724; 
State v. Ferrell, 30 W. Va. 683, 5 S. E. 
Rep. 155; State v. Pendergast, 20 W. 
Va. 672; Rice v. People, 38 Ill. 435; 
Cannaday v. People, 17 Ill. 158; State 
v. Becker, 20 Iowa, 438; State v. Brooks, 
33 Kans. 708, 7 Pac. Rep. 191; Junction 
City v. Wehb, 44 Kans. 71, 23 Pac. Rep. 
1073; State v. Ladd, 15 Mo. 430; State 
v. Spain, 29 Mo. 415, (overruling Neale 
v. State, 10 Mo. 430;) State v. Rogers, 
39 Mo. 431; State v. Fanning, 38 Mo. 
359; State v. Jaques, 68 Mo. 260; State 
v. Houts, 36 Mo. App. 265; State v. 
Bielby, 21 Wis. 204; State v. Gummer. 
547 § 464 
[Ch. 19 
LAW7 OF INTOXICATING LIQUORS. 
as follows: "The point made on the third ground of the motion is 
that, in default of an averment giving the name of the buyer of the 
spirituous liquors, the accused is unable to make his defense, and 
would be deprived of the means of meeting a second charge for the 
same offense. As the gravamen of the misdemeanor is the selling of 
liquor without a license, the person of the party purchasing is not an 
essential ingredient of the charge. The statute makes no discrimina- 
tion of grade or degree of the offense, based on the age, sex, or per- 
sonality in any way of the persons to whom the liquors are sold. 
Hence the name of the buyer is a matter of no essential importance 
in the confection of the indictment. It contains a special averment 
of the date of the offense charged, and that is sufficient to guard the 
accused against a second prosecution for the same offense."170 It is 
also remarked by the court in Wisconsin: "The offense complained 
of works no injury upon the individual rights of the person to whom 
the sale was made, and none are supposed to be violated; and hence 
the designation of such person by name is in no way material to con- 
stitute the offense."171 In Kansas, the statute expressly and specif- 
ically provides that the name of the purchaser of the liquor need not 
be stated in the indictment. There is nothing unconstitutional in 
this legislation.172 
It will be perceived that nearly all the foregoing authorities point 
to, or imply, a rule that if the gravamen of the offense charged is a 
sale made to a person belonging to a protected or prohibited class, 
as a minor, an intoxicated person, or an habitual drunkard, the 
requirement of certainty will oblige the pleader to state the name of 
the vendee, if it is known. This rule is of unquestionable propriety 
and justice, and is also supported by some authorities directly.173 
But on the other hand, if the particular sale alleged is not the 
essence of the offense, but only an instance or evidence of it, the 
name of the purchaser is clearly not material. Thus the offense 
may be "pursuing the business" of liquor-selling without a license. 
22 Wis. 441; People v. Sweetser, 1 Dak. 
308, 46 N. W. Rep. 452; 2 Wharton, 
Crim. Law, § 2445. 
170 State v. Brown, 41 La. Ann. 771, 6 
South. Rep. 638. 
171 State v. Bielby, 21 Wis. 204. 
172 State v. Whisner, 35 Kans. 271, 10 
Pac. Rep. 852; State v. Schweiter, 27 
Kans. 499. 
173 Myers v. People, 67 Ill. 503. 
548 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 465 
Here each act of selling is not a distinct offense, although it is nec- 
essary to prove one or more sales, and therefore, even if a particular 
sale is alleged in the indictment, it is in no way necessary to state 
the name of the person to whom that particular sale was made.174 
For cases falling between these two extremes, there is, as we have 
stated, no generally accepted rule, and the careful pleader will con- 
form to the precedents in his own state. 
§ 465. How Purchaser is Described. 
Supposing it to be necessary, according to the rule prevailing in 
the particular state, to name the person to whom the liquor was sold, 
in the indictment, or that the pleader at any rate undertakes to do 
so, we shall find that the ordinary rules of criminal pleading will be 
applicable. Thus, the purchaser may be described by the name by 
which he is commonly and usually known, although it may differ 
from his baptismal name; and where he is known by two or more 
names, he may be described by one or all of them.175 But as the 
allegations and proofs must correspond, an indictment for unlaw- 
fully selling to A. will not authorize proof of selling to B.176 If the 
name of the purchaser has not been discovered, he may be described 
as "a person to the jurors unknown."177 But what would be the effect, 
upon an indictment so framed, of the fact that the purchaser's name 
was really known to the grand jury, or could have been ascertained 
by them upon inquiry, is a question upon which the authorities are 
not entirely clear. Probably it must depend upon whether, in the 
particular jurisdiction, the name of the vendee is considered an indis- 
pensable part of the indictment. It has been ruled that, in a case- 
such as that supposed, the indictment should not be sustained.174 
But in another state, it is said that the knowledge of the grand jurors 
of the name of such person, is of no importance, where the case has 
proceeded to trial without preliminary objection.179 An indictment 
177 State v. Carter, 7 Humph. 158; 
Comm. v. Hitchings, 5 Gray, 482. 
178Blodget v. State, 3 Ind. 403. 
179 People v. Bradley, (Sup.) 11 N. Y. 
Supp. 594. 
171 Mansfield v. State, 17 Tex. App. 
468; State v. Muse, 4 Dev. & B. 319. 
176 Henry v. State, 113 Ind. 304, 15 N. 
E. Rep. 593. 
176 Comm. v. Taggart, 8 Gratt. 697. 
549 § 466 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
for selling liquor without a license may charge the sale to two per- 
sons, in the same count.180 
§ 466. Description of Liquors Sold. 
In an indictment for an unlawful sale of liquor, in the description 
of the article sold, it will generally be sufficient to follow the language 
of the statute on which the prosecution is founded.181 The fact that 
the indictment in its caption charges the defendant with being inter- 
ested in the sale of liquor, while the charging part avers that he was 
interested in the sale of a compound of ardent liquors, is an imma- 
terial variance, where the body of the count distinctly states the par- 
ticular offense.182 And if, after the use of a general term, as "spir- 
ituous," there follows a specification of a particular kind of liquor, 
laid under a videlicet, this will not restrict the prosecution to proof 
of a sale of the particular liquor so named.183 But the liquor proved 
to have been sold must come within the general terms used in the 
indictment. If, for instance, the defendant is charged with having 
sold "spirituous, vinous, or malt liquors," it must be shown that 
he sold one or more of the kinds of liquor mentioned, and proof that 
the article sold was intoxicating is not sufficient without further 
proof that it was either spirituous, vinous, or malt.184 Where the 
statute provides that the word "intoxicating," as used therein, shall 
include all liquors containing more than a certain proportion of alco- 
hol, a complaint charging the unlawful keeping of "strong and malt 
and intoxicating liquors" is not defective for failure to inform the 
defendant as to whether he is accused of keeping unlawfully liquors 
in fact intoxicating, or those deemed by law to be intoxicating.185 
The mere clerical omission of the word "liquor," after "intoxicat- 
ing," in the allegation that defendant was not licensed, will not viti- 
iso Peer's Case, 5 Gratt. 674. 
181 See Comm. v. Morgan, 149 Mass. 
314, 21 N. E. Rep. 369; State v. Spaul- 
ding, 61 Vt. 505, 17 Atl. Rep. 844. An in- 
dictment for unlawfully selling spirit- 
uous liquors by retail is not bad for us- 
ing the word "spiritual" instead of 
"spirituous. " State v. Clark, 3 Ind. 451. 
182 Williams v. State, 47 Ark. 230, 1 S. 
W. Rep. 149. 
183Brugier v. United States, 1 Dak. 5, 
46 N. W. Rep. 502. 
184Brantly v. State, (Ala.) 8 South. 
Rep. 816. 
188 State v. McKenna, 16 R. L 398, 17 
Atl. Rep. 51. 
550 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 467 
ate the indictment where the allegation of the sale uses the full 
expression.186 
§ 467. Not Necessary to Specify Particular Kind of 
Liquor. 
It is a well settled and accepted rule that an indictment for the 
unlawful sale or keeping of liquors need not specify the particular 
kind of liquor which it is expected to prove at the trial. That is, if 
the indictment charges the sale of "spirituous" or "intoxicating" 
liquor, or uses any other general term employed in the statute, it will 
be sufficient without an additional allegation that the liquor was 
whisky, rum, gin, wine, beer, etc.187 The class or species of the 
liquor sold is not a material ingredient of the offense, and the defend- 
ant is not entitled to more detailed information on this point, if the 
other allegations of the indictment describe the particular transac- 
tion with sufficient certainty to identify it. And in some states, 
where the statutes prohibit the unlicensed sale of "spirituous, vinous, 
or malt liquors," it is held that the particular kind of liquor alleged 
to have been sold, whether spirituous, vinous, or malt, need not be 
named in the indictment by either of those terms; it is sufficient to 
allege that the defendant sold "intoxicating liquor."188 And further, 
i88 Walter v. State, 105 Ind. 589, 5 N. 
E. Rep. 735. 
187 United States v. Gordon, 1 Cranch 
C. C. 58; State v. Dorr, 82 Me. 341, 19 
Atl. Rep. 861; State v. Blaisdell, 33 N. 
H. 388; State v. Reynolds, 47 Vt. 297; 
Comm. v. Conant, 6 Gray, 482; Comm, 
v. Timothy, 8 Gray, 480; Comm. v. 
Ryan, 9 Gray, 137; Comm. v. Clark, 14 
Gray, 367; State v. Teahan, 50 Conn. 92; 
Savage v. Comm., 84 Va. 582, 5 S. E. 
Rep. 563; State v. Packer, 80 N. Car. 
439; Dansey v. State, 23 Fla. 316, 2 
South. Rep. 692; Powell v. State, 69 
Ala. 10; Boon v. State, Id. 226; Cochran 
v. State, 26 Tex. 678; State v. Sterns, 28 
Kans. 154; State v. Brooks, 33 Kans. 
708, 7 Pac. Rep. 191; State v. Whisner, 
35 Kans. 271, 10 Pac. Rep. 852; State v. 
Witt, 39 Ark. 216; State v. Graeter, 6 
Blackf. 105; State v. Mullinix, Id. 554; 
Simpson v. State, 17 Ind. 444; Downey 
v. State, 20 Ind. 37; Fetterer v. State, 
18 Ind. 388; Leary v. State, 39 Ind. 360; 
Connell v. State, 46 Ind. 446; State v. 
Hannum, 53 Ind. 335; Hooper v. State, 
56 Ind. 153; State v. Whalen, 54 Iowa, 
753, 6 N. W- Rep. 552; Foreman v. 
Hunter, 59 Iowa, 550, 13 N. W. Rep. 
659; State v. Rogers, 39 Mo. 431; Fris- 
bie v. State, 1 Oreg. 248; People v. 
Sweetser, 1 Dak. 308, 46 N. W. Rep. 
452. Compare State v. Pischel, 16 Nebr. 
490, 21 N. W. Rep. 468; State v. Fox, 16 
N. J. Law, 152. 
188 Callahan v. State, (Ind. App.) 28 
N. E. Rep. 717, citing State v. Hannum, 
53 Ind. 335; Hooper v. State, 56 Ind. 153; 
551 § 468 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
if, in the allegation of sale, after the use of a general term, such as 
"spirituous" or "intoxicating" liquor, there follows a specification of 
a particular kind of liquor, laid under a videlicet, this will not restrict 
the prosecution to proof of a sale of the particular liquor so specified. 
Thus, under an indictment for unlawfully selling "spirituous liquors, 
to wit, one pint of whisky," a conviction may be had on proof of a 
sale of any kind of spirituous liquor.189 
§ 468. Charging Sale of Various Liquors in the Dis- 
junctive. 
It is not error to charge an offense consisting of an unlawful sale 
of liquors in the disjunctive, instead of the conjunctive, by using the 
word "or" instead of "and," in describing the various kinds of liquors 
alleged in the indictment to have been so sold.190 An allegation so 
framed is not open to a charge either of duplicity or uncertainty. 
In some cases, the second term employed, following the particle "or," 
may be taken as explanatory of the preceding term, as if the word 
Coverdale v. State, 60 Ind. 307; Garst 
v. State, 68 Ind. 101; Plunkett v. State, 
69 Ind. 68; Wills v. State, Id. 286. 
189 Brugier v. United States, 1 Dak. 5, 
46 N. W. Rep. 502. In this case the 
court observed: "A videlicet will not 
avoid a variance, or dispense with ex- 
act proof in an allegation of material 
matter. The allegations of time, place, 
quantity, quality, kind, and value, when 
not descriptive of the identity of the 
subject of the action, will be found im- 
material, and may not be proved strictly 
as alleged. It is sufficient if the proof 
agree with the allegation in its sub- 
stance and general character without 
precise conformity in every particular. 
An indictment describing a thing by its 
generic term is supported by proof of a 
species which is clearly comprehended 
within such description. Thus if the 
charge be of poisoning by a certain 
drug, and the proof be of poisoning by 
another drug, it is sufficient; or if the 
charge be of a felonious assault with a 
staff, and the proof be of such an as- 
sault with a stone. 1 Greenl. Ev. (6th 
Ed.) 80-97, and notes, are authorities 
sufficient upon this point, and are, gen- 
erally, all in favor of this position herein 
laid down. In cases where there are 
two words or phrases, as in this case,- 
'spirituous liquor' and 'whisky,'-the 
broader includes the latter. The stat- 
ute does not use the word 'whisky,' 
but whisky is spirituous liquor. Proof, 
then, of the giving or selling of 'spir- 
ituous liquor,' the word being con- 
trolled by a videlicet, whatever the alle- 
gation in the indictment might be,- 
whether rum, gin, brandy, or whisky, 
or any other thing which is spirituous 
liquor,-should be regarded as compe- 
tent to sustain such charge in the in- 
dictment. 1 Whart. Crim. Law, 622, 
and cases there cited. " 
190 Cunningham v. State, 5 W. Va. 508; 
Barth v. State, 18 Conn. 432; Osgood v. 
People, 39 N. Y. 449; Morgan v. Comm., 
7 Gratt. 592. 
552 Ch. 19] 
§ 469 
INDICTMENTS UNDER LIQUOR LAWS. 
"or" had the force of "to wit." Thus, where a complaint charges 
the sale of "intoxicating or malt liquors," the word "malt" may be 
understood as a more specific designation of the kind of intoxicating 
liquors intended.191 
§ 469. Allegation of Intoxicating Properties of Liquor. 
We have just seen that the pleader may allege, in general terms, 
an unlawful sale of "intoxicating liquor," or "spirituous liquor," or 
otherwise, according to the language of the statute. If he prefers, 
instead of this, to name the particular kind of liquor sold, he must 
add an allegation that the same was spirituous liquor, or intoxicating 
liquor, unless the article named is a liquor of the intoxicating prop- 
erties of which the courts will take judicial notice.192 An indictment, 
for instance, which charges a sale of "whisky" without alleging that 
the whisky sold was "intoxicating liquor," the words used in the stat- 
ute, is sufficient; for the courts know officially that whisky is intoxi- 
cating.193 But an indictment charging the selling of "liquor," with- 
out any averment that it was intoxicating, will be quashed.194 If the 
particular article stated in the indictment is referred to by name in 
the statute, it is of course not necessary to add such an allegation; 
for if it is prohibited by the statute, it is immaterial what its prop- 
erties may be. Thus, if the statute expressly forbids the sale of beer, 
an indictment need not allege it to be intoxicating.195 If the article 
sold belongs to the doubtful class, of which the courts are not willing 
to take official notice in respect to their properties, and if it is not 
named in the statute, the best method is to lay it under a videlicet; 
as, for example, "intoxicating liquor, to wit, beer." Here, although 
beer in general may be of a kind intoxicating or not, so that the word 
does not necessarily mean beer that is intoxicating, yet the term 
"intoxicating liquor" controls.196 Liquors which are not actually 
191 State v. Boncher, 59 Wis. 477, 18 
N. W. Rep. 335; State v. Nerbovig, 33 
Minn. 480, 24 N. W. Rep. 321. 
J92 Butler v. State, 25 Fla. 347, 6 South. 
Rep. 67. 
193 State v. Jones, (Ind. App.)29 N. E. 
Rep. 274; supra, § 12. 
194 Ward v. State, 48 Ind. 293. 
195State v. Thornton, 63 N. H. 114; 
State v. Jenkins, 64 N. H. 375, 10 Atl. 
Rep. 699. 
196 State v. Brown, 51 Conn. 1. 
553 § 470 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
intoxicating, but which the statute declares "shall be considered 
intoxicating within the meaning of this act," may be described as 
"intoxicating" in an indictment on that statute.197 
§ 470. Allegation as to Quantity Sold. 
As a general rule, an indictment for an unlawful sale of intoxi- 
cating liquors should contain an allegation setting forth the quan- 
tity of liquor sold.198 This is invariably necessary, as we shall pres- 
ently see, when the prosecution is upon a statute which prohibits 
the selling, by certain persons or under certain circumstances, in 
quantities "less than" a certain measure. On the other hand, there 
are some offenses against the liquor laws where the quantity sold is 
not at all material; and here, as will be shown in a later section, 
the quantity need not be stated. Subject to this exception, however, 
the general rule requires the insertion of such an allegation in the 
indictment. In Virginia, a charge of selling ardent spirits to be 
drunk where sold, without license, must contain the words "by 
retail."199 And in Arkansas, an indictment for keeping an unlicensed 
saloon, which does not show whether the defendant is charged with 
selling by the quart or in larger quantities, is fatally uncertain, 
because the penalties prescribed are different.200 But it has been 
held that an allegation, in an indictment for unlicensed selling, 
that the precise quantity of liquor sold is unknown, is sufficiently 
certain.201 In one state, we find a decision to the effect that, upon 
an indictment for retailing ardent spirits, specifying the precise 
quantity and the kind, to be drunk where sold, without license, 
proof of retailing any quantity of any kind of ardent spirits, to be 
drunk where sold, is sufficient.202 
197 Comm. v. Timothy, 8 Gray, 480. 
198Manvelle v. State, 58 Ind. 63; Blas- 
dell v. Hewit, 3 Caines, 137. Compare 
Comm. v. Conant, 6 Gray, 482. 
199 Boyle v. Comm., 14 Gratt. 674. 
200 State v. Clayton, 32 Ark. 185. 
R1Kilbourn v. State, 9 Conn. 560. 
202 Brock v. Comm., 6 Leigh, 634. 
554 Ch, 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 471 
§ 471. Charging Sale of One "Glass" or "Drink." 
When the quantity of liquor sold by the defendant is to be 
specified in an indictment, it should always be given according to the 
established and recognized measures; as, a quart, a pint, a gill. 
The use of a term not employed in the arithmetical tables of meas- 
ures is always a dangerous experiment. For although the courts 
may sometimes recognize such a term as importing a definite and 
known quantity, it is never certain that they will do so. For instance, 
it is held that "one drink" does not signify any given quantity.203 
But in a case in Maine, an indictment was sustained which charged 
the selling of "one glass" of spirituous liquor. The court said: 
"What is meant by a glass of spirits cannot be very unintelligible to 
dealers in that article, and our statute of jeofails requires only that 
the averments should be such as that the accusation should be intel- 
ligible."204 And so in New Hampshire, an indictment charging the 
illegal sale of "two glasses" of intoxicating liquor was considered 
sufficiently definite and certain, the court observing that whether a 
glass was understood to mean precisely half a gill, or the quantity 
usually contained in a drinking-glass as a single draught, it was 
intelligible enough as a description of quantity.206 But it must be 
observed that, in this last case, the statute prohibited the sale of any, 
the least quantity, of liquor without due authority. So that the aver- 
ment of quantity was not material, further than as showing that some 
liquor was sold. And in Indiana, it is held that an indictment for 
the sale of liquor in a less quantity than a quart must set forth the 
quantity sold with greater accuracy than by the description of "two 
glasses."206 
203 Cool v. State, 16 Ind. 355. 
204 New Gloucester v. Bridgham, 28 
Me. 60. For other decisions to the 
same effect, see State v. Reed, 35 Me. 
489; Wrocklege v. State, 1 Iowa, 167. 
205 State v. Rust, 35 N. H. 438. 
206 Haver v. State, 17 Ind. 455. 
555 § 472 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
§ 472. Where Statute Prohibits Sales of 11 Less than " a 
Certain Quantity. 
In many of the states, the statutes are so framed as to prohibit the 
sale of liquor, by certain persons or under certain conditions, in 
quantities less than a prescribed statutory minimum. Where an 
indictment is based on such a law, it must show on its face that the 
quantity sold by the defendant was such as to bring the sale within 
the terms of the act.207 There is not the least question as to the 
general rule, stated in these broad terms. But the moment we 
inquire into the sufficiency of various forms of allegations, intended 
to show the quantity sold, we find ourselves in a region of vexed ques- 
tions and conflicting authorities. In the first place, some of the 
cases hold that if the sale is charged as "in a less quantity than a 
quart," (or otherwise according to the statute,) that will be sufficient, 
without adding a specification of a precise quantity.208 But other decis- 
ions require the statement of some particular quantity, which shall 
be known as a measure less than the statutory minimum.209 In the 
next place, let us suppose that the indictment charges a sale merely 
of some known and definite quantity of liquor, which, as a matter of 
arithemetic, is less than the quantity named in the statute, but with- 
out an additional allegation that the sale was "in a less quantity 
than" such minimum. Will this be sufficiently certain? Many of 
the authorities return an affirmative answer. They hold that if the 
defendant is charged with selling "one pint," "one gill," etc., this 
definitely means that he sold that quantity and no more; and that 
an allegation that the pint or gill sold was less than a quart, a gallon, 
etc., would be superfluous and unnecessary.210 But this very sensible 
doctrine is not universally accepted. In several cases, the courts, 
207 Grupe v. State, 67 Ind. 327; State 
v. Mondy, 24 Ind. 268; State v. Wilkson, 
36 Mo. App. 373; Blakely v. State, 57 
Miss. 680; State v. Chambless, 45 Ark. 
349. 
208State v. Mondy, 24 Ind. 268. 
209 State v. Zeitler, 63 Ind. 441; State 
v. Shaw, 2 Dev. 198. 
210Reams v. State, 23 Ind. Ill; Mc- 
Cool v. State, Id. 127; Willard v. State, 
4 Ind. 407; State v. Owen, 15 Mo. 506; 
State v. Lavake, 26 Minn. 526, 6 N. W. 
Rep. 339, 37 Am. Rep. 415; State v. 
Bach, 36 Minn. 234, 30 N. W. Rep. 764; 
State v. Wyman, 42 Minn. 182, 43 N. 
W. Rep. 1116. 
556 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 472 
taking a refined and hypercritical view of the question, have been led 
to the conclusion that an allegation charging the sale of a pint, a 
bottle, a gill, etc., is not enough. They say it does not affirmatively 
appear from such an allegation that the quantity specified was not 
part of a larger quantity sold at the same time, and which might be 
above the statutory amount; and hence the charge is insufficient, 
unless it adds that the defendant sold no more than the amount 
named, or that the sale was of a quantity less than that fixed by law 
as the limit.211 "It is undoubtedly true," says the court in Indiana, 
"that courts and juries may legally take notice of known and estab- 
lished measures of quantity; they may notice that a gill is a quantity 
less than a quart. But does the allegation bring the defendant within 
the prohibition ? We think not. The gill sold may have been but 
part of a larger quantity, a quart or more. Suppose the defendant 
sold a quart, which he had a right to do without license; it would be 
true that he sold a gill, it would be true that he did just what the 
information charges him with doing."212 And again: "The question 
is not whether the courts will take notice of the standards of meas- 
ure, and therefore that a gill is less than a quart; but whether the 
courts can or will legally assume that, because the appellant sold a 
gill, he did not sell any more at the same time, and therefore that 
he committed an offense. • • • The gill may have been but 
a part of the larger quantity sold."213 But the answer to this argu- 
ment is not far to seek. On every principle of the right use of lan- 
guage, a statement that the defendant sold a gill excludes the idea 
that he sold a quart. And if, in point of fact, the gill sold was part 
211 Comm. v. Odlin, 23 Pick. 275; Peo- 
ple v. Bradt, 10 N. Y. Supp. 157, 46 
Hun, 445; Struckman v. State, 21 Ind. 
160; Wood v. State, Id. 276; Arbintrobe 
v. State, 67 Ind. 267, 33 Am. Rep. 86; 
State v. Fanning, 38 Mo. 409. 
212 Struckman v. State, 21 Ind. 160. 
213 Arbintrobe v. State, 67 Ind. 267, 33 
Am. Rep. 86. The Indiana practitioner 
will observe that the supreme court of 
ihat state has several times vacillated 
from one side ®f this question to the 
■other, although the doctrine finally ac- 
cepted appears to be that the specifica- 
tion of a particular quantity is not alone 
sufficient. Compare the following line 
of cases: Willard v. State, 4 Ind. 407; 
Struckman v. State, 21 Ind. 160; Wood 
v. State, Id. 276; Reams v. State, 23 Ind. 
Ill; McCool v. State, Id. 127; Smith v. 
State, Id. 132; State v. Mondy, 24 Ind. 
268; State v. Zeitler, 63 Ind. 441; Arbin- 
trobe v. State. 67 Ind. 267, 33 Am. Rep. 
86; Grupe v. State, 67 Ind. 327; Quinn 
v. State, 123 Ind. 59, 23 N. E. Rep. 977. 
557 § 472 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
of a larger quantity, that is entirely a matter of evidence, which the 
courts are not called upon, in advance, either to assume or to repu- 
diate. 
But if the doctrine prevails that the specification of a known quan- 
tity is not in itself sufficient, the question arises whether the addition 
of a clause, "the same being then and there less than" the statutory 
limit, would make the indictment sufficiently certain. Several cases 
hold that it would.214 But these decisions cannot be sustained on 
principle. Suppose that the indictment now reads, "did sell one gill 
of intoxicating liquor, the same being then and there less than a 
quart." We may now say-meeting subtlety with subtlety-that 
the interpolated phrase will not aid the indictment, because it adds 
nothing to the information of the court or the certainty of the 
charge. It merely alleges that, at the time and place of the sale, a 
gill was less than a quart-a fact which wrould be judicially noticed. 
And the indictment, as thus amended, might be true and yet charge 
no offense. For a gill (being, as alleged, less than a quart) might 
still be part of a larger quantity sold. On the whole, therefore, if 
this very technical doctrine is to prevail, we conceive that the only 
safe course for the pleader is to follow the words of the statute and 
lay the precise quantity under a videlicet. He should allege that the 
defendant sold liquor "in a quantity less than one quart, to wit, one 
gill," of course varying the quantities to suit the statute. An alle- 
gation so expressed is of unquestioned propriety.215 
If the same statute, in its different clauses, prescribes different 
quantities or limits for different persons or under different conditions, 
the indictment must clearly show under which clause the defendant 
is prosecuted. Thus, under a statute requiring a license-"First, 
for selling in quantities less than a quart, . . . second, for sell- 
ing in quantities of one quart and less than five gallons," etc., an 
indictment which charges a sale "by the measure, less than a gallon, 
to wit, by the quart," is fatally defective, as failing to show whether 
defendant is charged under the first or second paragraph.216 But 
214 Smith v. State, 23 Ind. 132; Quinn 
v. State, 123 Ind. 59, 23 N. E. Rep. 977; 
Zarresseller v. People, 17 Ill. 101. 
216 Comm. v. Odlin, 23 Pick. 275. See, 
also, State v. Arbogast, 24 Mo. 363. 
216 State v. Sutton, 100 N. Car. 474, 6 
558 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 474 
where the act prohibits the sale of liquor "in less quantity than a 
quart at a time" without a license, an indictment for selling less than 
a quart need not allege that the sale was made at one time.217 
§ 473. Where Quantity is not Material to the Offense. 
If the quantity of liquor sold is not made, by the statute, a material 
part of the offense,-as, where the law prohibits the sale of any liquor 
to be drunk on the premises of the seller,-the indictment need not 
contain any allegation as to the quantity sold.218 So, on an indict- 
ment for the sale of liquor on Sunday, it is not material to prove the 
particular kind or quantity of liquor sold, and if the kind or quantity 
is alleged in the indictment under a videlicet, the allegation may be 
treated as surplusage.219 The same is true of a prosecution for sell- 
ing to a person intoxicated at the time; any allegation of the quantity, 
not impossible or repugnant, will be held sufficient, even though it 
may be described in a form which would not be accepted if the 
quantity were a material ingredient in the offense.220 On similar 
principles, a count charging the keeping of "intoxicating liquors," 
with intent to sell the same unlawfully, need not specify the kind or 
quantity.221 And so an indictment for manufacturing liquor for sale, 
contrary to the provisions of the act, need not allege the quantity 
manufactured.222 
§ 474. Allegation of Price Paid. 
It has been held, in numerous cases in the state of Indiana, 
that an indictment for an unlawful sale of liquor must contain 
an allegation of the price paid; if it omits this averment, the defect 
is fatal on motion to quash.223 The same cases, however, hold that 
S. E. Rep. 687. See, also, State v. Green- 
hagen, 36 Mo. App. 24; State v. Ryan, 
30 Mo. App. 159. 
2" Mullen v. State, 96 Ind. 304. 
218 Comm. v. Churchill, 2 Mete. (Mass.) 
118; Comm. v. Brown, 12 Mete. (Mass.) 
522; Plunkett v. State, 69 Ind. 68; State 
v. Corll, 73 Ind. 535; Comm. v. Eaton, 9 
Pick. 165; Block v. State, 66 Ala. 493. 
219 McCuen v. State, 19 Ark. 636. 
220 Berry v. State, 67 Ind. 222; Brow v. 
State, 103 Ind. 133, 2 N. E. Rep. 296. 
221 State v. Teahan, 50 Conn. 92. 
222 Comm. v. Clark, 14 Gray, 367. 
223 Divine v. State, 4 Ind. 240; State 
559 § 474 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
the defect is one that is cured by verdict, and will not sustain a 
motion for a new trial.224 The reason of this rule is given as fol- 
lows: "Every fact essential to be proved should be alleged. Here 
the pleader alleges a ' sale,' which is a conclusion from the facts, 
and leaves the important element of price, a fact essential to support 
the idea of sale, to be inferred. Perhaps, had all the facts been 
stated, the court might have considered it a barter. It is inverting 
the order of pleading to allege conclusions and leave the facts to 
inference." 225 But this doctrine is not generally accepted. On the 
contrary, the rule established by the decisions in a majority of the 
states is that the indictment need not specify any price for which 
the liquor was sold.226 That the transaction was not a gift or a 
barter is sufficiently indicated, according to these authorities, by the 
use of the word "sell." That term imports a price paid or agreed 
to be paid, and no further particularity under that head is requisite. 
And where an indictment for selling or bartering liquor does not 
allege any price as having been paid, neither need it aver in terms 
that it was done "for purposes of gain." 227 So, where the defend- 
ant was charged with selling a gallon of liquor for the sum of 
"about $1.25," it was held that, as the amount received for the 
liquor was entirely immaterial, the indictment was sufficient.228 On 
similar principles, an affidavit that defendant bartered a pint of 
liquor to a minor for a pool check was held sufficient, though not 
stating the value of the check, or that it was an article of value.229 
And where an information charged that defendant "did sell, barter, 
and give away intoxicating liquor," but did not allege what, if any- 
thing, was paid for the liquor, it was held, on motion to quash, that 
the words charging a sale and barter should be stricken out as sur- 
v. Miles, Id. 577; State v. Lockstand, 
Id. 572; Miles v. State, 5 Ind. 215; Sny- 
der v. State, Id. 194; Segur v. State, 6 
Ind. 451; State v. Downs, 7 Ind. 237; 
Hubbard v. State, 11 Ind. 554; Cool v. 
State, 16 Ind. 355; State v. Jacks, 54 
Ind. 412. 
224 Hare v. State, 4 Ind. 241. 
226 Divine v. State, 4 Ind. 240. 
226 State v. Downer, 21 Wis. 274; State 
v. Muntz, 3 Kans. 383; State v. Rogers, 
39 Mo. 431; State v. Fanning, 38 Mo. 
359; State v. Pischel, 16 Nebr. 608, 21 
N. W. Rep. 468; State v. Hines, 13 R. 
I. 10. See, also, Forkner v. State. 95 
Ind. 406; Schlicht v. State, 56 Ind. 173 
227 Schlicht v. State, 56 Ind. 173. 
228 Clare v. State, 5 Iowa. 509. 
829 Forkner v. State, 95 Ind. 406. 
560 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 475 
plusage, and that the information sufficiently charged the offense of 
giving away intoxicating liquor.230 
§ 475. Charging Sale of Liquor to be Drunk on Premises. 
In several of the states it is made a misdemeanor to sell liquor "to 
be drunk on the premises where sold," when the sale is made by a 
person having no license or having a license limited to sales for other 
purposes. In an indictment for this offense, it is essential to allege 
the purpose and intent of the vendor that the liquor should be con- 
sumed where it was sold.231 And it is not sufficient to charge a sale 
of the liquor and that the defendant did "suffer and permit" the 
drinking of the same on the premises.232 But it is not necessary for 
the indictment to allege that the liquor was drunk on the premises, 
or that it was drunk anywhere, because that is not necessary to com- 
plete the offense.233 Where the allegation is that the liquor was sold 
"to be drunk on the premises," this is held to be equivalent to charg- 
ing that it was sold "with the intent to be drunk" on the premises.234 
But prudence will suggest a close following of the language of the 
statute in the wording of this averment. In some jurisdictions, the 
prohibition is against the sale of liquor to be drunk "in the house" 
of the seller. Where this is the case, it is thought to be sufficient to 
describe the place as "the dwelling-house by the said A. used and 
occupied." 236 Or it may be described as "a certain building then and 
there situate and in the possession and occupancy of the said A., 
erected on," etc.236 But in Indiana, where the statute requires that 
the liquor should have been sold to be drunk on premises owned or 
controlled by the defendant, it is not sufficient to charge a sale of 
liquor "to be then and there drunk on the premises where sold."237 
As to whether it is necessary to describe the situation of the prem- 
ises with any degree of particularity, the authorities leave us in some 
230 Eagan v. State, 53 Ind. 162. 
231 See Layton v. State, 49 Ind. 229; 
State v. Williamson, 19 Mo. 384; Picket 
v. State, 22 Ohio St. 405. 
232 Vanderwood v. State, 50 Ind. 26; 
Blough v. State, 121 Ind. 355, 23 N. E. 
Rep. 153. 
233 Eisenman v. State, 49 Ind. 511, 
234Bilbro v. State, 7 Humph. 534. 
236 Comm. v. Moulton, 10 Cush. 404. 
236Hintermeister v. State, 1 Iowa, 101. 
237 State v. Woolsey, 92 Ind. 131. 
INTOX.LIQ.-36 
561 § 476 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
doubt. In an early case in Indiana, where the indictment charged 
the defendant A. with retailing liquor in N. county, without a license, 
to be drunk in the house of him, the said A., where the same was 
sold as aforesaid, it was held that the fact that the said house was 
in N. county (supposing it ought to appear) was shown with suffi- 
cient certainty.238 And in New York, there is a ruling that the prem- 
ises maybe described as in a designated ward in a city, without stat- 
ing the name of the street or the number of the house.239 
§ 476. Alleging Sale in Prohibited Places. 
When the prosecution is upon a statute prohibiting the sale of 
liquor in the vicinity of a church, camp-meeting, school, agricultural 
fair, etc., the place is of the essence of the offense, and must be 
described with such particularity as to exclude any ambiguity or 
uncertainty. And the allegations must be such as to bring the case 
exactly within the statute. We may illustrate this rule by a decis- 
ion in Indiana, where the indictment was found under an act forbid- 
ding the sale of liquor within two miles of any religious assembly 
at a "booth, tent, wagon, huckster shop, or other place erected, 
brought, kept, continued, or maintained within the distance aforesaid." 
The indictment charged a selling within one-half mile of a religious 
assembly, but did not charge that the liquor was sold at a booth, etc. 
And it was held that it charged no offense.240 But where a special 
statute prohibited the sale of liquor within three miles of "a Metho- 
dist church in M. county, known by the name of White Church," 
and an indictment charged a sale within three miles of "White 
Church in M. county," it was held that the description of the church 
was sufficient.241 When the prohibition is against the sale of liquors 
within a certain distance of any academy, etc., the indictment need 
not allege the incorporation of the academy; but if such allegation 
is made, it must be proved.242 And the indictment is not defective 
for failing to allege that the academy is in the county in which the 
238 State v. Shearer, 8 Blackf. 262. 
239 Schwab v. People, 4 Hun, 520. 
240 Bouser v. State, 1 Ind. 408. 
241 Block v. State, 66 Ala. 493. 
242 Blackwell v. State, 36 Ark. 178. In 
Tennessee, we find a ruling that the in- 
dictment need not designate the institu- 
tion. State v. Odam, 2 Lea, 220. 
562 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 477 
indictment is found, if it avers that the order of the county court 
prohibiting the sale within three miles of the designated academy 
was made in compliance with the act.243 An indictment for selling 
liquor within a district wherein such sale has been prohibited by a 
special act must be framed under that act, and not under the gen- 
eral liquor law.244 
§ 477. Allegation of Sale to Minor. 
An indictment for selling liquor to a minor, contrary to the statute, 
may describe the purchaser as "then and there a person under the age 
of twenty-one years," and it is not necessary to give his age more 
specifically.245 There is also authority for the proposition that the 
use of the word "minor," in such an indictment, without more, suffi- 
ciently describes the person's age.246 If the statute makes the sale 
of liquor to a minor an offense only when it is "knowingly" done, it 
is probable that the indictment should contain an allegation of the 
seller's knowledge of the buyer's minority, as this is then a constitu- 
ent element of the offense. This might be done by the use of some 
such formula as "to him then and there known to be a person under 
the age of twenty-one years," or "well knowing that the said A. was 
then and there a minor." But if this word is not found in the stat- 
ute, there is a great controversy, as we have already seen,247 as to the 
validity of a defense of ignorance or mistake of fact as to the buyer's 
age. We apprehend, however, that it is not necessary for the indict- 
ment to charge knowledge. For if the defendant is allowed to excuse 
himself on the ground of ignorance, this is a defense which he must 
set up and prove; it is not a matter which the indictment should 
anticipate and negative.248 Neither, except when it is made an essen- 
tial prerequisite by the statute, is it necessary to allege a previous 
notice to the defendant forbidding him to sell to the minor.249 Where 
243 Wilson v. State, 35 Ark. 414. 
244 State v. Orton, 41 Ark. 305; State 
v. Cathey, Id. 308. 
245 Brinkman v. State, 57 Ind. 76; 
Schaffer v. State, 106 Ind. 319, 6 N. E. 
Rep. 818. 
246 Waller v. State, 38 Ark. 656; 
Comm. v. O'Brien, 134 Mass. 198. 
247 Supra, §§ 416-418. 
248 Ward v. State, 48 Ind. 289. 
249 State v. Hyde, 27 Minn. 153, 6 N. 
W. Rep. 555. 
563 § 477 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
the act forbids the sale of liquor "to any white person under the age 
of twenty-one years," an indictment is defective which does not allege 
that the minor is a white person.250 Further, although the matter 
may not be entirely settled upon the authorities, the better opinion 
appears to be that the name of the minor should be stated in the 
indictment if known, or, if not known, that he should be described 
as a person to the grand jury unknown. We have seen that there 
are substantial reasons for requiring an allegation of the name of the 
purchaser, when he belongs to a specially protected or prohibited 
class.251 
In some of the states, the sale of liquor to a minor is lawful when 
made in pursuance of the written permission of his parents or 
guardian. And when this is the case, the theory of such permission 
having been given must be met by an appropriate negative allegation 
in the indictment.252 Where the statute prohibits such sale "without 
the written consent or request" of the parent, an indictment alleging 
a sale "without the written consent and request" of such person, does 
not charge the statutory offense.253 And where the sale is charged to 
have been made without the written consent of the minor's parents, 
but the indictment does not negative the consent of his guardian, it 
is bad on demurrer.254 So, an indictment charging a sale without 
the consent of the minor's "father" only is defective.255 And the 
same is true of an allegation which only negatives authority from 
the mother of the purchaser.256 But an indictment which alleges 
that the sale was made "without the consent of the parent, guardian, 
or person having the legal charge of the said" minor, is not demur- 
rable because it omits the word "master" after the word "guardian," 
as used in the statute.257 And where the statute prohibits a sale 
"without the written consent or order of the parent or guardian," 
250 Comm. v. Ewing, 7 Bush, 105, 
Supra, § 464. 
252 Parkinson v. State, 14 Md. 184, 74 
Am. Dec. 522. 
263 Comm. v. Hadcraft, 6 Bush, 91. 
254 State v. Emerick, 35 Ark. 324. 
But compare State v. Shoemaker, 4 Ind. 
100. 
265 Lantznester v. State, 19 Tex. App. 
320. 
S6Newman v. State, 63 Ga. 533. 
But such an indictment, if not de- 
murred to, is made valid by evidence 
that the minor's father was dead and 
he had no guardian. Reich v. State, 63 
Ga. 616. 
257 Weed v. State, 55 Ala. 13. 
564 § 478 
Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
an indictment is not demurrable because it omits the words "or 
order."258 
§ 478. Allegation of Sale to Habitual Drunkard. 
In indictments for the sale of liquor to habitual drunkards, con- 
siderable strictness is required in conforming to the statutory defi- 
nition of the offense. But if the sale is prohibited to a person "in 
the habit of being intoxicated," an indictment charging a sale to a 
person "in the habit of becoming intoxicated" is sufficient.269 It is 
especially necessary that the indictment should show that the intem- 
perate habits of the purchaser existed at the time of the particular 
sale charged. It has been held that this requirement is sufficiently 
met by an allegation that the defendant "did then and there unlaw- 
fully sell to one H. intoxicating liquor, he, the said H., being a per- 
son in the habit of becoming intoxicated." 260 The prudent pleader, 
however, will see to it that there is no room for ambiguity on this 
point. As a general rule, it is not necessary to aver that the defend- 
ant knew of the intemperate habits of the person to whom the liquor 
was sold; the sale is made at the peril of the party selling.261 The 
exception to this rule is where the statutory offense is "knowingly" 
selling to an inebriate. In such case, knowledge being an essential 
element of the offense, the indictment must charge that the accused 
knew the buyer to be a drunkard.262 The name of the purchaser 
ought also to be stated in the indictment, if it is known. The same 
reasons for this requirement exist which obtain in the case of a sale 
to a minor, as noticed in the preceding section. In Indiana, the 
statute prohibits the sale of liquor to an habitual drunkard "after 
notice shall have been given him in writing" that such person is a 
drunkard. Under this law, an information charging such sale after 
due notice in writing had been served upon the proprietor of the 
^Mogler v. State, 47 Ark. 109, 14 S. 
W. Rep. 473. 
259 State v. Dolan, 122 Ind. 141, 28 N. 
E. Rep. 761. 
260 State v. Dolan, 122 Ind. 141, 23 N. 
E. Rep. 761. Compare Wiedemann v. 
People, 92 Ill. 314. 
261 Mapes v. People, 69 Ill. 523; Wer- 
neke v. State, 50 Ind. 22. See, supra, 
§ 426. 
262 Comm. v. Bell, 14 Bush, 433. See 
Parker v. State, 4 Ohio St. 563. 
565 § 479 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
saloon in which the accused was employed, which notice was left at 
such saloon, is insufficient in not charging notice to the accused.263 
An information in the recorder's court of a town for the violation of 
an ordinance prohibiting the sale or gift of intoxicating liquors to an 
habitual drunkard is sufficient though it does not set out the ordi- 
nance literally, but only states its legal effect as making it unlawful 
to furnish liquor to such person.264 
§ 479. Charging Sale on Sunday. 
In an indictment under the laws prohibiting the sale of liquor on 
Sunday, the day of the commission of the offense may be described 
as "the first day of the week, commonly called Sunday," 265 or as "the 
Sabbath day," 266 or otherwise according to the language of the stat- 
ute. And an indictment which charges that the defendant, on a 
specified day, "the same being the Sabbath day, in the night-time 
of said day, so being the Sabbath day," did unlawfully keep open a 
tippling-house, is sufficient.267 It is usual and proper to add a spec- 
ification of the day of the month and the year. And in this respect 
the time should be laid with sufficient certainty to show that it is not 
beyond the period of limitations. But the day of the month is not 
an essential element of the offense. The gist of the offense is the 
doing of the act on Sunday, and the statement of the day of the 
month is not more important than in other offenses. Hence if the 
indictment charges the offense to have been committed on Sunday, 
but upon a day of the month which, as a matter of fact and judicial 
knowledge, was some other day of the week, the error is immaterial 
and the allegation is good.268 The vital part of the allegation is that 
it should name Sunday as the day of the commission of the offense. 
It is not sufficient to charge that the sale was made on a specified 
263 State v. Smith, 122 Ind. 178, 23 N. 
E. Rep. 714. See, also, Geraghty v. 
State, 110 Ind. 103, 11 N. E. Rep. 1. 
264 Woods v. Prineville, 19 Oreg. 108, 
23 Pac. Rep. 880. 
265 State v. Roehm, 61 Mo. 82; State v. 
Kock, Id. 117: Henry v. State, 113 Ind. 
304, 15 N. E. Rep. 593. 
266 State v. Peterson, 38 Minn. 143, 36 
N. W. Rep. 443. 
267 Kroer v. People, 78 Ill. 294. 
268 State v. Eskridge, 1 Swan, 413; Roy 
v. State, 91 Ind. 417; Marquardt v. State, 
52 Ark. 269, 12 S. W. Rep. 562; Frasie* 
v. State, 5 Mo. 536; Megowan v. Comm., 
2 Met. (Ky.) 3; People v. Ball, 42 Barb. 
566 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 479 
day in a specified month and year, even though, in point of fact, that 
date fell on Sunday.269 And on an even stronger reason, if the given 
date was not a Sunday, the allegation is bad.270 Since only the day 
of the week is here important, it follows that greater latitude will be 
allowed in the statement of the date than would otherwise be toler- 
ated. Thus, a complaint charging the sale of liquor "on or about 
the 17th day of February, 1884, that being the first day of the week, 
commonly called Sunday," is sufficiently definite as to time.271 In 
prosecutions for this offense, the quantity of liquor sold, as well as 
the place where it was drunk, are immaterial, and it is not necessa- 
ry that the indictment should specify either.272 But under the Indi- 
ana statute, it must be averred and proved that the liquor was sold 
to be drunk as a beverage.273 Where the act prohibits the sale of 
liquor on Sunday "unless the person to whom the same is sold shall 
have first procured a written prescription therefor from some regular 
practising physician of the county where the same is sold," the omis- 
sion of the word "therefor" in reference to a purchaser's failure to 
obtain a prescription is not fatal to an indictment against a drug- 
gist.274 
324; Hoover v. State, 56 Md 584; State 
v. Drake, 64 N. Car. 589; Comm. v. 
Newton, 8 Pick. 234; Comm. v. Kings- 
bury, 5 Mass. 496; 1 Bishop, Crim. 
Proced. § 399; Wharton, Crim. Plead. 
§ 121. Compare Werner v. State, 51 
Ga. 426. 
269 Gilbert v. State, 81 Ind. 565. 
270 Robinson v. State, 38 Ark. 548. 
271 Brown v. State, 16 Nebr. 658, 21 N. 
W. Rep. 454. In this case Reese, J., 
observed: "While it is indefinitely al- 
leged to be 'on or about' the date 
named, yet it is definitely charged to 
have been on the particular day desig- 
nated by the statute. This was equiva- 
lent to charging the act to have been 
committed ' on the first day of the 
week, commonly called Sunday, and 
which was on or about the 17th day of 
February, 1884.' The substantial alle- 
gation of date was necessary for the 
purpose of showing that the prosecu- 
tion was not barred by the statute of 
limitations, but for no other purpose. 
The particular date on which the Sun- 
day occurred was wholly immaterial, 
except for the purpose named. The 
object and purpose of the provision of 
the section under which the complaint 
was drawn, was to prevent the sale of 
liquors on the day known as Sunday. 
The sale is alleged to have been on that 
day and within the time in which the 
prosecution could be maintained. This 
is sufficient. " See, per contra, Effinger 
v. State, 47 Ind. 235. 
272Megowan v. Comm., 2 Met. (Ky.) 3. 
273 Morel v. State, 89 Ind. 275; Dow- 
dell v. State, 58 Ind. 333. 
^Shepler v. State, 114 Ind. 194,16 N. 
E. Rep. 521. 
567 § 480 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
§ 480. Charging Sale on Election Day. 
When the statute prohibits the keeping open of saloons, or the sale 
of liquor, on or during the day of any election, it is considered, in 
some of the states, that the indictment is not sufficient if it merely 
charges a sale made "on an election day," without further alleging 
that an election was in fact held on that day; because if there was 
no election, no offense was committed, and this essential fact cannot 
be left to inference.276 In Tennessee, however, the doctrine prevails 
that it will be presumed that an election was held on the day legally 
appointed for it, and hence that the indictment need not state that 
an election was actually opened and held; if no election was held, 
this would be a matter of defense.276 In Texas, it is necessary to aver, 
not merely that an election was held, but what the election was 
for.277 An allegation that the election was "held by lawful authority," 
for the election of one aiderman, and that it was then and there being 
held "by lawful legal authority," is sufficiently specific, without alleg- 
ing in terms that it was a special election, ordered by the city coun- 
cil, and that the required notice had been given.278 Under a statute 
which makes it an offense for one to keep a bar open on a day on 
which an election is held in "his" precinct, one cannot be indicted 
for selling in a certain justice's precinct on a day when an election 
was there being held, without an allegation that it was his precinct.279 
In Indiana, it is held that the indictment is defective if it does not 
state the name of the township in which the offense was committed, 
although the sale is alleged to have been made on a day upon which 
the law requires general township elections to be held.280 
276 State v. Starney, 71 N. Car. 202; 
Prather v. State, 12 Tex. App. 401. 
276 State v. Powell, 3 Lea, 164; State v. 
Irvine, 3 Heisk. 155. 
277 Hoskey v. State, 9 Tex. App. 202. 
278 Janks v. State, (Tex. App.) 15 S. 
W. Rep. 815. 
279 Smith v. State, 18 Tex. App. 454. 
See Janks v. State, (Tex. App.) 15 S. W. 
Rep. 815. 
280 State v. Weaver, 83 Ind. 542. 
568 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 481 
§ 481. Being a Common Seller. 
Under the statutes in force in some of the New England states, as 
we have seen in an earlier chapter, penalties are imposed upon any 
person who shall "presume to be a common seller" of intoxicating 
liquors, without due license or authority therefor. In charging this 
offense, it is sufficient for the indictment to aver that the defendant, 
at a certain time and place, "was, without being duly authorized or 
appointed thereto according to law, a common seller of intoxicating 
liquors, against the peace of the commonwealth and contrary to the 
form of the statute in such case made and provided."281 The indict- 
ment need not set forth any particular sales, or any number of sales; 
and if particular instances of selling are alleged, but defectively, the 
allegation may be treated as surplusage and exscinded without 
destroying the indictment.282 And if, after the averment that defend- 
ant was a common seller, it is added that he "did then and there, 
as aforesaid, sell and cause to be sold to divers persons, to the jurors 
unknown, divers quantities of strong liquors," the indictment charges 
but one offense, and is not bad for duplicity.283 Even if a particu- 
lar sale of a definite quantity to a named person is set out in the 
same count, in addition to the charge of the general offense, this will 
not vitiate the indictment.284 As to the allegation of time, the author- 
ities hold that if the indictment avers that the defendant at a certain 
place, on a certain day, and at said place from said day to the day 
of finding the indictment, "was then and there a common seller of 
intoxicating liquors," it lays the time with sufficient certainty and 
charges but one offense.285 An indictment for this offense, charging 
its commission at a town named within the state, need not allege 
that the liquors sold were in the state at the time of the sale.286 Two 
281 Comm. v. Hoye, 11 Gray, 462. 
282 Comm. v. Edwards, 4 Gray, 1; 
Comm. v. Wood, Id. 11; Comm. v. Hart, 
11 Cush. 130; Comm. v. Pray, 13 Pick. 
359. 
283 State v. Stinson, 17 Me. 154; State 
v. Churchill, 25 Me. 306. See, also, 
State v. Nutt, 28 Vt. 598. 
284 Goodhue v. Comm., 5 Mete. (Mass.) 
553. 
285 Comm. v. Woods, 9 Gray, 131; 
Comm. v. Kingman, 14 Gray, 85; Comm, 
v. Snow, Id. 20. 
286 Comm. v. Jones, 7 Gray, 415. 
569 § 482 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
persons may be jointly indicted under these statutes. And in such 
case, the regular course is to make the averment specific as to each, 
and to negative the license or authority of each. But it seems that 
an indictment averring that two persons at a certain time and place 
"was a common seller of intoxicating liquors," is sufficient to sustain 
a conviction of the first, after a nolle prosequi has been entered as to 
the second.287 
§ 482. Unlawfully Pursuing Business of Liquor-Selling. 
Where the statute makes it an offense to engage in, or carry on, 
or pursue the business or occupation of a dealer in liquors, without 
paying the required tax or procuring the necessary license, it is not 
necessary that the indictment should allege a specific sale or sales, 
but it is sufficient to charge that the accused was engaged in the 
business of selling, etc.288 Regard should be had to the statutory 
definition of the offense, and the most prudent course is to follow the 
language there employed, substantially if not literally. For example, 
where the statute refers to the selling of "vinous, spirituous, or malt 
liquors," an indictment charges no offense when it alleges that defend- 
ant engaged in the business of selling "spirituous, vinous, or malt 
liquors, or intoxicating bitters," the sale of the last-mentioned article 
not being necessarily an offense under the statute.289 On the other 
hand, where the act prohibited by the statute is to "carry on or con- 
duct" the business without license, it is said to be sufficient to charge 
that defendant "did engage in and manage the business of a dealer 
in intoxicating liquors" without procuring a license.290 An indictment 
for this offense must contain an allegation of the place at which the 
business was carried on.291 Under the statute in Michigan, it is held 
that an averment that a druggist sold whisky to be used as a bever- 
age sufficiently states that he was engaged in a business that required 
payment of the special tax required of retail liquor dealers, a druggist 
287 Comm. v. Colton, 11 Gray, 1. 
288 People v. Breidenstein, 65 Mich. 
65, 31 N. W. Rep. 623. 
289 Allred v. State, 89 Ala. 112,8 South. 
Rep. 56. 
^Roberts v. State, (Fla.) 7 South. 
Rep. 861. 
291 Harris v. State, 50 Ala. 127. 
570 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 483 
not being exempt from such tax, if he desires to sell liquor to be used 
as a beverage.292 
§ 483. Keeping Liquors for Unlawful Sale. 
An indictment for a violation of a statute which prohibits the 
keeping of intoxicating liquors, with intent to sell the same unlaw- 
fully, will in general be sufficient if it substantially follows the lan- 
guage of the statute.293 But a literal copying of the statutory words 
is not always necessary. It will be sufficient, for instance, to allege 
a keeping of liquors "for the purpose of sale," although the statute 
uses the words "with intent to sell." 294 And an allegation of an 
intent "unlawfully to sell the same within the commonwealth" is 
sufficient, although not alleging an intent to sell in the place where 
the liquor is kept.295 But an allegation that the accused did "keep 
. . . for the purpose of sale, and not for the purpose of exportation," 
is not admitted to be equivalent to an allegation that the liquors 
were kept for sale and not for sale for exportation.296 Nor will the 
indictment be sufficient to sustain a conviction of the person having 
the liquors in his possession, without an allegation that the same 
were intended by him for sale in violation of law.297 An indictment 
which charges that in a certain building the defendant kept intox- 
icating liquors for sale, and did then and there sell the same, does 
not charge two distinct offenses and is not bad for duplicity.298 And 
the same is true of an allegation that the defendant "did keep, and 
was concerned, engaged, and employed in owning and keeping intox- 
icating liquors to sell." 299 The place of the commission of the offense 
should of course be alleged. But where the indictment charges the 
illegal keeping of liquors for sale, as distinguished from charging the 
292 Luton v. Palmer, 69 Mich. 610, 37 
N. W. Rep. 701. See, also. People v. 
Quinn, 74 Mich. 632, 42 N. W. Rep. 604; 
Allen v. State, (Tex. App.) 13 S. W. 
Rep. 998. 
298 Comm. v. Gilland, 9 Gray, 3. 
294 State v. Mohr, 53 Iowa, 261, 5 N. 
W. Rep. 183. 
295 Comm. v. Gillon, 148 Mass. 15,18 
N. E. Rep. 584. See State v. Perking, 
63 N. H. 368. 
296 State v. Campbell, 12 R. I. 147. 
297 State v. Learned, 47 Me. 426. 
298 State v. Becker, 20 Iowa, 438: State 
v. Baughman, Id. 497. 
299 Vaughn v. State, 5 Clarke, (Iowa,) 
369. 
571 § 484 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
maintenance of a tenement for that purpose, a variance as to the 
place is not material.300 It is also held that the keeping of liquors 
for sale may be a continuing offense, and hence may be alleged with 
a continuando.301 Finally, it appears that the license or authority of 
the defendant should be negatived. In a case in Massachusetts, 
wrherethe statute enacts that "no person shall sell, or expose or keep 
for sale, spirituous or intoxicating liquors, except as authorized in 
this act," a complaint which merely alleged that the defendant 
"unlawfully did expose and keep for sale intoxicating liquors, with 
intent unlawfully to sell the same within this commonwealth," was 
held insufficient for not alleging want of authority.302 
§ 484. Keeping Place for Unlawful Sale of Liquor. 
Where the statute prohibits all unauthorized persons to "keep a 
place" or "maintain a tenement," used for the illegal keeping or sale 
of intoxicating liquors, an indictment, charging a violation of such 
prohibition, will in general be good if it substantially follows the lan- 
guage of the statute.303 But if this is attempted, no material words of 
the statute can safely be omitted. For example, if the statute 
declares that no person without a license shall "engage in the busi- 
ness of keeping" a tavern, an allegation that the defendant "did keep" 
such a place is demurrable.804 And so, if the law is directed against 
the keeping of a bar-room "used as a place of resort," the omission 
of the words quoted will make the indictment defective, though it 
seems it may be amended at any stage of the proceedings.308 Again, 
under a complaint which merely charges defendant with keeping "a 
saloon as a place of public resort, where intoxicating liquors were 
sold in violation of law," he cannot be convicted of the offense of sell- 
300 Comm. v. Kern, 147 Mass. 595, 18 
N. E. Rep. 566. See Lincoln v. Smith, 
27 Vt. 328. 
301 Comm. v. Hersey, (Mass.) 9 N. E. 
Rep. 837. 
302Comm. v. Byrnes, 126 Mass. 248. 
303 See State v. Adams, 16 Ark. 497; 
State v. Hoard, 123 Ind. 34, 23 N. E. 
Rep. 972; State v. McGough, 14 R. I. 63; 
State v. Price, 75 Iowa, 243, 39 N. W. 
Rep. 291; Comm. v. Purdy, 147 Mass. 
29, 16 N. E. Rep. 745; Comm. v. Kim- 
ball, 7 Gray, 328; Comm. v. Davenport, 
2 Allen. 299. 
304 Pettibone v. State, 19 Ala. 586. 
305 State v. Stone, 54 Vt. 550. 
572 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 485 
ing liquors without a license.306 And so, under the Massachusetts 
statute, which provides that no unlicensed person shall "keep or 
expose for sale" any intoxicating liquors, an indictment charging the 
defendant with "keeping an open bar," or "keeping a public bar for 
the sale of spirituous and intoxicating liquors," does not sufficiently 
set forth the offense.307 But an indictment for this species of offense 
is not bad because it contains two counts setting forth the same 
offense in the same manner, with certain slight verbal variations.308 
And an averment that the defendant kept a tenement "used for the 
illegal sale and illegal keeping of intoxicating liquors" is not bad on 
the ground of duplicity.309 An indictment which charges the defend- 
ant with keeping a disorderly liquor-shop, and sets forth the partic- 
ular disorderly acts of those allowed to drink at defendant's shop, is 
good at common law.310 In a recent decision in Massachusetts, it 
was held that, on an indictment for maintaining a place kept by a 
"club" for the purpose of selling and distributing intoxicating liquors, 
there is no variance, though the club is incorporated under a name 
other than that stated in the indictment, it being as well known by 
one name as by the other.311 If the indictment charges that the tene- 
ment was used for the "illegal sale and illegal keeping of intoxicating 
liquors," it need not more distinctly negative the defendant's author- 
ity to sell or keep liquors.312 
§ 485. Keeping a Tippling-House. 
Under the statute in Kentucky, an indictment charging that the 
defendant "did then and there, in said house, keep a tippling-house, 
without first having obtained a license then and there to keep a 
tavern," is held to be good and sufficient.313 But an allegation that 
defendant "kept a tippling-house in the town of P. by then and there 
306 State v. Gumber, 37 Wis. 298. 
See Volmer v. State, 34 Ark. 487. 
307 Comm v. Hickey, 126 Mass. 250. 
308 State v. Doyle, 15 R. I. 527, 9 Atl. 
Rep. 900; State v. Brady, 16 R. I. 51,12 
Atl. Rep. 238. 
309 Comm. v. Foss, 14 Gray, 50. 
310 State v. Hoard, 123 Ind. 34, 23 N. 
E. Rep. 972. 
811 Comm. v. Jacobs, (Mass.) 25 N. E. 
Rep. 463. 
312 Comm. v. Edds, 14 Gray, 406. 
813 Comm. v. Turner, 4 B. Mon. 4. 
573 § 486 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
retailing," etc., is not good, because it does not charge that it was 
in a house kept by him for that purpose, which is necessary to make 
out the statutory offense.314 It has been ruled, in the same state, 
that an indictment charging the defendant with keeping a tippling- 
house, "not under pretense of keeping a tavern," is good after verdict, 
as these terms manifestly imply that he had no license.318 In 
Indiana, the courts have sustained an indictment for keeping a 
tippling-house, which alleged that the defendant on, etc., at, etc., 
kept a certain tippling-house wherein spirituous liquors were sold, 
without license, to be drunk in and about the same, which tippling- 
house was then and there kept by him in a disorderly manner, to the 
annoyance, etc., contrary to the form of the statute.318 
§ 486. Charging Maintenance of Nuisance. 
When the prosecution is upon a statute which provides that all 
places kept for the illegal sale of liquor shall be deemed public nui- 
sances, and directs the punishment of the keeper of such a place, an 
indictment against such person will ordinarily be good if it describes 
the offense in the language of the statute.317 It must be distinctly 
shown, on the indictment, that the place complained of was a com- 
mon nuisance. This is sufficiently done by an allegation that the 
defendant kept and maintained a certain tenement, used for the 
illegal sale and illegal keeping of intoxicating liquors, whereby, and 
by force of the statute in such case made and provided, the said tene- 
ment, so kept, maintained, and used, was then and there a common 
nuisance.318 But where the statute defines as nuisances places "used" 
for the illegal sale of liquor, it is not sufficient to charge the main- 
tenance of a saloon "resorted to" for such illegal sale.319 Nor, under 
a statute so worded, will the indictment be good if it merely alleges 
that the building complained of was "occupied" by its owner for such 
314Our v. Comm., 9 Dana, 30; Woods 
v. Comm., 1 B. Mon. 74. 
316 Webster v. Comm., 7 Dana, 215. 
816 Shilling v. State, 5 Ind. 443. 
317 See Skinner v. State, 120 Ind. 127, 
22 N. E. Rep. 115; State v. Welch, 
(Me.)7Atl. Rep. 475; Comm. v. Wright, 
12 Allen, 190. 
318 Comm. v. Howe, 13 Gray, 26. 
And see State v. Freeman, 27 Iowa, 
333. 
319 State v. Dodge, 78 Me. 439, 6 Atl. 
Rep. 875. 
574 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 486 
purposes.320 On the same principle, an allegation that the defendant 
"kept a grocery and did retail" is not good; it should be alleged that 
the grocery was kept for the retailing of liquors.321 Since it is the 
essence of the offense of maintaining a liquor nuisance, that intoxi- 
cants were kept for sale, or were illegally sold, at the place described, 
this fact must be distinctly charged in the indictment.322 And hence 
it must be averred either that the defendant had sold liquors at the 
place mentioned, or that he kept them there for the purpose of 
selling.823 But if it is charged that he kept, maintained, and used 
the building for the illegal sale, and illegal keeping for sale, of intoxi- 
cating liquors, no allegation of specific sales will be necessary.324 It 
may or may not be essential to charge that the building in which the 
nuisance was maintained was owned or controlled by the defendant. 
This will depend upon whether the statute makes such ownership or 
control a necessary ingredient of the offense.326 Where the indict- 
ment is against the owner of the building, on the charge of know- 
ingly letting it to a tenant for the purpose of being used as a nuisance, 
it is sufficient to allege that the defendant "a certain room knowingly 
let to and permitted to be used by one C. for the illegal sale and 
keeping for sale of intoxicating liquors." 320 As against the person 
who kept the nuisance, it is not necessary to allege that he knew the 
place he so kept to be a common nuisance.327 
In relation to the allegation of place, it is to be observed that there 
is an important distinction between criminal proceedings against the 
person guilty of maintaining the nuisance and proceedings, quasi 
criminal in their nature, for the abatement of the nuisance itself. 
In the latter case, the place must be described with great exactness 
and particularity.328 But in an indictment against the owner or 
320 Duke v. Marston, (N. H.) 15 Atl. 
Rep. 222. 
321 Hensley v. State, 6 Ark. 252. 
322 Comm. v. Hill, 4 Allen, 589; Comm, 
v. Kelly, 12 Gray, 175; State v. Adams, 
(Iowa.) 47 N. W. Rep. 770; State v. 
Crabtree, 27 Mo. 232. 
323 State v. Hass, 22 Iowa, 193. 
324 State v. Dorr, 82 Me. 157, 19 Atl. 
Rep. 157. 
328 See State v. Nickerson, 30 Kans. 
545, 2 Pac. Rep. 654; State v. Schilling, 
14 Iowa, 455. 
326 State v. Pierce, (Me.) 15 Atl. Rep. 
68. 
327 State v. Ryan. 81 Me. 107, 16 Atl. 
Rep. 406. 
328 Zumhoff v. State, 4 Greene, (Iowa,) 
526. 
575 § 486 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
keeper of the alleged nuisance, it is not essential that its location 
should be designated with any special degree of precision or minute- 
ness, further than to show that it is within the territorial jurisdiction 
of the court.329 An averment that defendant kept the nuisance "in 
a certain frame building under his control" has been held sufficient.330 
And so of an allegation that the nuisance was maintained "in a cer- 
tain room in the Windsor Hotel" in a named town and county.331 
And so of an allegation that the building was situated "at the corner 
of Depot square in said town," though without stating on which cor- 
ner.332 And a charge that defendant "did keep and maintain a cer- 
tain common nuisance, to wit, a building, to wit, a tenement in a 
building," is not inconsistent in its description of the place.333 In a 
case in Illinois, the information charged that defendant kept a dram- 
shop, in which he sold intoxicating liquors to persons intoxicated and 
to habitual drunkards, whereby the place became and was a public 
nuisance. In a second count, it charged the sale of intoxicating liq- 
uors on the same premises in less quantities than one gallon, with- 
out a dram-shop license, and to minors without the written order 
required by the law, as in the first count. It was held that the infor- 
mation did not charge separate offenses, but only the offense of keep- 
ing a common nuisance.334 
In regard to the allegation of time, in indictments for this offense, 
it is held that the nuisance may be alleged to have been kept and 
maintained on a day named "and on divers other days and times 
between that day and the day of finding this indictment." Such an 
averment states the time with sufficient certainty and is not open to 
the charge of duplicity.835 And where an indictment alleged that the 
829 State v. Becker, 20 Iowa, 438; 
Comm. v. Logan, 12 Gray, 136; Comm, 
v. Hill, 14 Gray, 24; Comm. v. Welsh, 
1 Allen, 1; Comm. v. Skelley, 10 Gray, 
464; Comm. v. Quinlan, (Mass.) 27 N. E. 
Rep. 8; State v. Kreig, 13 Iowa, 462; 
Howard v. State, 6 Ind. 444. 
330 State v. Schilling, 14 Iowa, 455. 
831 State v. Cox, 82 Me. 417, 19 Atl. 
Rep. 857. 
832 state v. Hall, 79 Me. 501, 11 Atl. 
Rep. 181. 
833 Comm. v. Lee, 148 Mass. 8, 18 N. 
E. Rep. 586. 
334 Nicholson v. People, 29 Ill. App. 
57. See, also, State v. Dean, 44 Iowa, 
648. 
835 Comm. v. Hoye, 9 Gray, 292; 
Comm. v. Keefe, Id. 290; Comm. v. 
Sheehan, 143 Mass. 468, 9 N. E. Rep. 
839. 
576 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 487 
defendant used a building for the illegal keeping and sale of liquor, 
with time and place, in the usual manner, but the allegation that he 
thereby rendered himself guilty of keeping a nuisance was made with 
the blank space for the time left unfilled, it was held that the indict- 
ment contained a legal and sufficient statement of the time when the 
offense was committed.336 It is also ruled that a second clause of a 
count of an indictment for maintaining a liquor nuisance need not 
repeat the allegation of time.337 Two persons may be jointly indicted, 
one for maintaining a liquor nuisance, and the other for aiding in its 
maintenance.338 As this offense is statutory, and does not depend 
upon the existence of a state of facts which would be sufficient to con- 
stitute a nuisance at common law, it is not indispensable to the indict- 
ment that it should conclude with the common law formula "to the 
common nuisance of all the citizens," etc., if the facts stated bring 
the case within the statute; 339 but it should conclude "against the 
form of the statute," etc. 
§ 487. Violation of Screen Law. 
An indictment for a violation of the "screen law" 340 should con- 
tain an allegation that the defendant was a licensed liquor-dealer, 
and should describe the place with certainty. If it alleges that the 
accused "did then and there place and maintain upon said premises, 
so used as aforesaid, a certain screen, blind, shutter, curtain, and par- 
rition [substituting the conjunctive for the disjunctive as used in the 
statute] in such a way as to interfere with a view of the business con- 
ducted upon said premises, and with a view of the interior of said 
premises," it is held that it cannot be considered objectionable on the 
ground of duplicity.341 
336 State v. Buck, 78 Me. 193, 3 Atl. 
Rep. 573. 
337 State v. Brady, 16 R. I. 51,12 Atl. 
Rep. 238. 
338 State v. Ruby, 68 Me. 543. 
339 Comm. v. Howe, 13 Gray, 26; State 
v. Rhodes, 2 Ind. 321. 
340 For the substantive law of this of- 
fense, see, supra, §§ 50, 153. 
341 Comm. v. Gibbons, 134 Mass. 197. 
See, also, Comm. v. Keefe, 143 Mass. 
467, 9 N. E. Rep. 840. 
INTOX.LIQ.-37 
577 § 489 
[Ch. 19 
LAW OF INTOXICATING LIQUORS. 
§ 488. Charging Illegal Transportation of Liquor. 
In some of the states, it is a statutory offense to transport intox- 
icating liquors from place to place within the state, with knowledge 
or reasonable cause to believe that the same are intended for illegal 
sale. An indictment for this offense should clearly and distinctly 
state the places from which and to which the liquor was being con- 
veyed.842 But if it is alleged that defendant "did bring into said city 
of S. intoxicating liquor, with intent, then and there, in said S., to 
sell the same himself, in violation of law," this imports, from the 
terms used, that the defendant was not transporting the liquor 
through the city to a place beyond, and is sufficient.848 And so the 
complaint is sufficient if it charges the illegal transportation to have 
been from place to place within a particular city.844 Where it is part 
of the statutory definition of the offense that the liquors should have 
been transported with an intent to sell them within the state, this 
intent must be alleged in the indictment, or it will be fatally 
defective.845 But it need not be alleged that the liquors were not in 
the original packages in which they were imported.846 
§ 489. Violation of Laws against Adulteration. 
Under a statute designed to prevent the adulteration of liquor, 
which provides that all persons, prior to engaging in the sale of liq- 
uors, shall take and subscribe an oath not to adulterate their com- 
modities, and also give a bond conditioned for the due observance of 
this requirement, it is held to be enough for an indictment to allege 
that the defendant "did then and there unlawfully sell spirituous 
liquors . . . without then and there having taken and sub- 
scribed an oath and given a bond, as required by law of all persons 
before selling or offering to sell such liquor." 847 And if the statute 
342Comm. v. Reily, 9 Gray, 1; State v. 
Lashus, 79 Me. 541, 11 Atl. Rep. 604. 
343 Comm. v. Keefe, 143 Mass. 467, 9 
N. E. Rep. 840. 
344 Comm. v. Hutchinson, 6 Allen, 
595. 
846 State v. Murch, (Me.) 7 Atl. Rep. 
115; Comm. v. Intoxicating Liquors, 
138 Mass. 506. 
346 Comm. v. Waters. 11 Gray, 81. 
347 State v. Hays, 38 Mo. 367; State v. 
Melton, Id. 368. 
578 Ch. 19] 
INDICTMENTS UNDER LIQUOR LAWS. 
§ 490 
is so framed that the omission either to take the oath or give the 
bond, constitutes an offense, an indictment is good which alleges a 
failure of the defendant in either of these respects, though it does 
not negative a compliance with the other requirement.348 But where 
the law requires that all liquors "imported into or manufactured in 
the county" shall be inspected by an authorized official, and makes 
it penal to sell liquor not so inspected, an indictment thereunder 
should contain a general allegation that the liquor sold had not been 
inspected; it is not sufficient to aver simply that it was not inspected 
in the county where it was sold, for it might have been inspected 
elsewhere.349 
§ 490. Charging Violation of Local Option Law. 
In several of the states, the opinion prevails that an indictment 
for selling liquor in violation of a local option law need not contain a 
statement of all the formalities necessary to render the law operative, 
or even an allegation that it was in force in the particular jurisdiction; 
for such laws, though local, are public, and the courts will take judi- 
cial cognizance of them.350 But in other states, it is held that the 
indictment will not sustain a conviction unless it charges that the 
local option law was in effect in the county where the crime was com- 
mitted, as the result of an election held for that purpose. "The fact 
of the adoption of that law rests upon matters in pais, and should be 
averred and proved as any other material fact is required to be."361 
Accordingly, the indictment must either allege that the election was 
held pursuant to the local option law, or state facts and circumstances 
sufficient to show the same; and an averment that the election was 
held "in the manner prescribed by law" merely shows that the elec- 
tion was conducted under the general election laws, and is insuffi- 
cient.352 But if the indictment fails to allege that the election was 
348 State v. Crowley, 37 Mo. 369. 
349 Woodworth v. State, 4 Ohio St. 
487. 
^Jones v. State, 67 Md. 256, 10 Atl. 
Rep. 216; Savage v. Comm., 84 Va. 582, 
5 S. E. Rep. 563; Bogan v. State, 84 Ala. 
449, 4 South. Rep. 355. 
861 Loughridge v. State, (Miss.) 3 
South. Rep. 667; Norton v. State, 65 
Miss. 297, 3 South. Rep. 665; State v. 
Chambers, 93 N. Car. 600. 
332 Cook v. State, 25 Fla. 698, 6 South. 
Rep. 451. 
579 § 491 
LAW OF INTOXICATING LIQUORS. 
[Ch. 19 
held within the time prescribed after notice, such defect will be cured 
by verdict.353 Where a portion of a district governed by a local option 
law is cut off, and united with other territory, receiving a new name, 
it is not necessary, in an indictment for a violation of the law in the 
portion of the district not severed, specifically to state that the offense 
was not committed in that part of the district which was cut off.354 An 
indictment under the local option law is sufficient if it charges the 
offense as "contrary to the form of the act of assembly in such case 
made and provided.355 
§ 491. Charging Second Offense. 
Where the prosecution is for a second offense against the liquor 
laws, and a prior conviction for a similar offense becomes material, 
with a view to the measure of punishment, the indictment should 
contain such a description of the former conviction as will enable 
the defendant to find the record.356 If it gives no information of the 
time, court, or county in which the prior judgment was rendered, it 
is insufficient.357 So also, if it alleges an impossible date as the time 
of the prior conviction; though this will not vitiate the indictment 
as to the new offense charged therein.358 But it is not necessary to set 
forth particularly the record of the prior conviction, but a brief alle- 
gation of the fact, giving the necessary data, will be enough.359 In 
an indictment for a single unlawful sale, an averment of prior con- 
viction is sufficient which alleges that at a specified term of court 
defendant was convicted of "selling a quantity of intoxicating liq- 
uors."360 
363 State v. Houts, 36 Mo. App. 265. 
See Ninenger v. State, 25 Tex. App. 
449, 8 S. W. Rep. 480; Croom v. State, 
25 Tex. App. 556, 8 S. W. Rep. 661. 
364 Jones v. State, 67 Md. 256, 10 Atl. 
Rep. 216. 
^Slymer v. State, 62 Md. 237. 
366 State v. Small, 64 N. H. 491, 14 Atl. 
Rep. 727. 
857 State v. Small, 64 N. H. 491,14 Atl. 
Rep. 727. 
358 State v. Dorr, 82 Me. 341, 19 Atl. 
Rtep. 861. 
359 State v. Robinson, 39 Me. 150. 
360 State v. Lashus, 79 Me. 504, 11 Atl. 
Rep. 180; State v. Wyman, 80 Me. 117, 
13 Atl. Rep. 47. 
580 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 492 
CHAPTER XX. 
EVIDENCE IN PROSECUTIONS UNDER THE LIQUOR LAWS. 
§ 492. Competency of Witnesses. 
493. Evidence of Spies and Informers. 
494. Circumstantial Evidence. 
495. Same; Finding Liquor on Premises. 
496. Same; Efforts to Conceal Liquor. 
497. Same; Drunken Men about the Premises. 
498. Weight and Sufficiency of Evidence. 
499. Knowledge and Intent. 
500. Connecting Defendant with Unlawful Acts Shown. 
501. Record of Prior Conviction. 
502. Evidence in Case of Joint Parties. 
503. Proving Sale of Liquor. 
504. Allegation of Sale and Proof of Gift. 
505. Evidence of Sales Other than Those Counted on. 
506. Evidence of Selling without License. 
507. Burden of Proving License. 
508. Evidence on Question of License. 
509. United States License as Evidence. 
510. Evidence of Sale by Servant or Agent. 
511. Burden of Proving Legality of Sale. 
512. Evidence as to Time of Offense. 
513. Same; Single Unlawful Sale. 
514. Same; Continuing Offense. 
515. Same; Sale on Sunday. 
516. Evidence as to Place of Offense. 
517. Identification of Purchaser. 
518. Evidence under Allegation of Sale to a "Person Unknown." 
519. Evidence of Quantity of Liquor Sold. 
520. Evidence as to Kind of Liquor Sold. 
521. Proof of Intoxicating Properties of Liquor. 
522. Same; Chemical Analysis. 
523. Proof of Being a Common Seller. 
524. Proof of Pursuing Business of Liquor-Selling. 
525. Proof of Keeping Liquors for Unlawful Sale. 
526. Proof of Keeping Place for Unlawful Sale. 
527. Evidence of Maintaining Nuisance. 
528. Evidence on Prosecution of "Club. " 
529. Proof of Sale of Liquor to be Drunk on Premises. 
530. Proof of Illegal Transportation of Liquors. 
581 § 492 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
§ 531. Proof of Illegal Sale to Minor. 
532. Proof of Sale to Intoxicated Person. 
533. Proof of Sale to Habitual Drunkard. 
534. Evidence of Violation of Local Option Law. 
§ 492. Competency of Witnesses. 
For the most part, the usual rules relating to the competency of 
witnesses in criminal prosecutions will be found applicable in cases 
arising under the liquor laws. In several respects the statutes, in 
various states, have modified the laws of evidence for the purposes of 
this special class of cases, with a view to facilitating the conviction 
of offenders, but not in reference to the competency or admissibility 
of testimony. Thus, the inhabitants of the town wherein the alleged 
offense of unlicensed liquor-selling was committed are not rendered 
incompetent as witnesses to sustain the prosecution by the mere fact 
that the town will be entitled to the penalty recovered.1 And where 
one person is indicted for this offense, another, who was to partici- 
pate in the profits of the business, cannot claim, for that reason, to 
be exempted from testifying to the commission of the offense.2 
When husband and wife are indicted for keeping a house where intox- 
icating liquors are unlawfully sold, and are tried together, the wife, 
by the force of an enabling statute, may be a witness for her hus- 
band, but her testimony cannot be considered in her own behalf.3 If 
the defendant himself takes the witness-stand, he is to be treated as 
any other witness, and may be subjected to such cross-examination 
as would be proper in the case of another witness. Thus, where the 
accused has testified that he kept only non-intoxicating liquor, except 
such as he drank himself, he may be cross-examined as to his meth- 
ods of conducting his business before and after the alleged unlawful 
sale.4 It is also ruled that an unlawful sale of liquor may be proved 
by other witnesses than the purchaser.6 And as the buyer, in a sale 
made in violation of law, is not guilty of any criminal offense, he 
cannot be excused from testifying, on the ground that his evidence 
1 State v. Stuart, 23 Me. 111. 
2 State v. Davis. 23 Me. 403. 
8 State v. Donovan, 41 Iowa, 587. 
♦ People v. Hicks, 79 Mich. 457, 44 N. 
W. Rep. 931. See, also, Klug v. State, 
77 Ga. 734. 
6 Comm. v. Tinkham, 14 Gray, 12. 
582 Ch. 20] 
§ 493 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
would tend to criminate himself.6 And if such person shows him- 
self an unwilling witness, his evidence may be elicited by leading 
questions, as in other cases.7 
§ 493. Evidence of Spies and Informers. 
Prosecutions under the liquor laws are frequently sustained upon 
the evidence of "spotters" or paid informers. The admissibility of 
such testimony is not questionable, and its weight and effect are 
entirely for the jury. The court is not bound to charge that the tes- 
timony of such a witness "is to be received with great caution and 
distrust;" and there is no error in the refusal to so charge, if the 
jury are properly instructed as to the matters which they may take 
into consideration in weighing the evidence of the witness.8 A proper 
instruction is, that the jury should consider all the circumstances 
tending to diminish or fortify the credit of the witness, and decide for 
themselves what confidence should be placed in him.9 Also the fol- 
lowing instruction has been held proper by the appellate court: "In 
considering R.'s testimony, the jury are to have regard to what 
appears in the evidence, as to the part he had taken in connection 
with the case. When a witness has by words or acts manifested an 
intent or feeling adverse to the defendant in any case, or for any 
cause might be affected by prejudice or bias, the jury should consider 
and weigh these facts, and make reasonable allowance therefor in 
considering his testimony."10 And in a case where the witness was 
a person employed at a per diem compensation to procure illegal sales 
of liquor for the purpose of prosecuting the sellers, it was held that 
it was sufficient for the court to charge that the jury "must weigh all 
the testimony with caution, especially where they see any reason to 
doubt its truth or discredit it."11 
6 Supra, § 381. 
7 Comm. v. Chaney, 148 Mass. 6, 18 N. 
E. Rep. 572. 
8 Comm. v. Mason, 135 Mass. 555; 
Comm. v. Trainor, 123 Mass. 414; State 
v. Hoxsie, 15 R. I. 1, 22 Atl. Rep. 1059. 
9 Comm. v. Whitcomb, 12 Gray, 126. 
10 Comm. v. Trainor, 123 Mass. 414. 
11 State v. Hoxsie, 15 R. I. 1, 22 Atl. 
Rep. 1059. 
583 § 495 
[Ch. 20 
LAW OF INTOXICATING LIQUORS. 
§ 494. Circumstantial Evidence. 
In a prosecution for a violation of the liquor laws, the offense may 
be established by circumstantial evidence.12 "It would be strange 
indeed," says the learned court in New York, "that a man may be 
convicted of murder upon circumstantial evidence, and yet the same 
kind of evidence may not be given when the trial is for selling 
spirituous liquor without a license."13 And even where the defense 
is supported by the positive testimony of witnesses, there may be 
circumstantial evidence strong enough to overcome such testimony 
and to warrant a conviction.14 Where the statute provides that the 
delivery of intoxicating liquor from any other place than a dwelling 
house shall be prima facie evidence of a sale, the method of showing 
a sale thus authorized is not exclusive, and consequently it does not 
preclude the prosecution from proving the fact of a sale by circum- 
stantial evidence where there is no evidence of a delivery.16 
§ 495. Same; Finding Liquor on Premises. 
In some species of prosecutions under the liquor laws,-as, for 
keeping liquor with intent to sell the same unlawfully, keeping a 
tenement for the illegal sale of liquor, maintaining a liquor nuisance, 
and the like,-the finding of liquor on the premises, or the discovery 
of barrels, kegs, pitchers, decanters, or glasses, either containing 
liquor or evidently having been recently used for that purpose, is a piece 
of circumstantial evidence which is proper to go to the jury.16 And 
where such evidence has been produced, an instruction that the 
finding of an article of merchandise in a place where merchandise is 
12 Comm. v. Maloney, 16 Gray, 20; 
Comm. v. Norton, Id. 30; Comm. v. 
Keenan, 148 Mass. 470, 20 N. E. Rep. 
101; Comm. v. Murphy, (Mass.) 26 N. 
E. Rep. 860; People v. Hulbut, 4 Denio, 
133, 47 Am. Dec. 244; Vallance v. 
Everts, 3 Barb. 553. 
13 People v. Hulbut, 4 Denio, 133, 47 
Am. Dec. 244. 
14 McManigal v. Seaton, 23 Nebr. 549, 
37 N. W. Rep. 271. 
16 Comm. v. Campbell, 116 Mass. 32. 
16 Comm. v. Timothy, 8 Gray, 480; 
Comm. v. Boyden, 14 Gray, 101; Comm, 
v. McCullow, 140 Mass. 370, 5 N. E. 
Rep. 165; State v. Baskins, (Iowa,) 48 
N. W. Rep. 809; People v. Hicks, 79 
Mich. 457, 44 N. W. Rep. 931. 
584 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 495 
for sale would tend to show that it was there for sale, is not improper.17 
Toillustrate this principle, in a case in Massachusetts, where defend- 
ant was charged with unlawfully keeping liquor for sale, he testified 
that he owned the yard and building in question, that he occupied a 
portion of the building, that there were three tenants occupying 
rooms in it, and that the cellar and yard were used by all the tenants. 
There was evidence that bottles of ale and lager-beer bottles were 
found in his tenement. It was held that testimony was competent 
that bottles of ale and beer, bearing the same marks, were found 
buried in the yard, and that another bottle of ale, marked like the 
others, and also a pick and shovel, were found in the cellar.38 So 
also, evidence of a witness that he saw men sitting and standing in 
a room in defendant's house, and his wife with bottles of beer under 
her apron, is competent.39 And evidence that defendant's shop con- 
tained a counter, on which was "a pitcher containing something that 
looked like ale or beer" and "a pump that looked like a beer-pump," is 
admissible.20 The testimony of an officer who searched the premises, 
that a tumbler seized contained liquor, is competent, without produc- 
ing the liquor, or accounting for its absence.23 And proof that 
decanters, mentioned by the state's witness, contained only colored 
water, does not render them incompetent evidence upon the question 
whether the defendant kept intoxicating liquor with intent to sell.22 
And such material pieces of evidence are none the less admissible 
because they were procured by an illegal and unauthorized search of 
the premises.23 On a principle exactly similar to that we have been 
considering, it is held that where the indictment is for unlawful 
selling, evidence that there were implements and materials for selling 
liquor in the defendant's shop is competent.24 
17 Comm. v. Keenan, 148 Mass. 470, 20 
N. E. Rep. 101. 
18Comm. v. Finnerty, 148 Mass. 162, 
19 N. E. Rep. 215. 
19 Comm. v. Gillon, 148 Mass. 15,18 N. 
E. Rep. 584. 
20 Comm. v. Lamere, 11 Gray, 819. 
21 Comm. v. Welch, 142 Mass. 473,8 N. 
E. Rep. 342. 
22 Comm. v. Blood, 11 Gray, 74. 
23 State v. Burroughs, 72 Me. 479. 
24 Comm. v. Lincoln, 9 Gray, 288. 
585 § 497 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
§ 496. Same; Efforts to Conceal Liquor. 
On a trial for maintaining a liquor nuisance, or illegally keeping 
liquors, it is permissible to show in evidence that the defendant, dur- 
ing a search of his premises, broke certain bottles;25 or that his bar- 
keeper attempted to pour the liquor down a sink, to prevent the 
searching officer from finding it;26 or that when the officer entered 
defendant's house, another person, whose relation to defendant is not 
shown, took a bottle apparently containing whisky from a table on 
which was a tumbler, and threw it out of a window, in defendant's 
presence and without objection from him.27 So also, when it has been 
proved that defendant was the occupant of one half of a house, and 
that he and his son were seen in that half just before a search by 
police officers was begun, evidence that the son was seen a short while 
after in the other half of the house, throwing beer bottles out of a 
window, is admissible.28 
§ 497. Same; Drunken Men about the Premises. 
Evidence of the frequent presence of drunken persons on or near the 
premises of the defendant is admissible on a prosecution for illegal 
selling.29 And so also is evidence that persons have been seen to enter 
the defendant's place sober and afterwards come out intoxicated.30 
And evidence of persons being seen to go in and out of the building 
in a state of intoxication is proper to be submitted to the jury, even 
though all the witnesses who testify to specific sales state that the 
liquor sold was not in their opinion intoxicating.31 Further, even 
without evidence of the presence of intoxicated persons, or of their 
carrying jugs, etc., people may be seen going to and from a place in 
such numbers, at such times, and under such circumstances, as 
thereby to furnish evidence proper to be considered, in connection 
25 Comm. v. Daily, 133 Mass. 577. 
26 Comm. v. Locke, 145 Mass. 401, 14 
N. E. Rep. 621. 
27 Comm. v. McHugh, 147 Mass. 401, 
18 N. E. Rep. 74. 
28 Comm. v. Nally, 151 Mass. 63, 23 N. 
E. Rep. 660. 
29 Comm. v. Wallace, 143 Mass. 88, 9 
• N. E. Rep. 5. 
30 Comm. v. Kennedy, 97 Mass. 224. 
81 Comm. v. Taylor, 14 Gray, 26. 
586 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 498 
with other circumstances, as indicating that intoxicating liquors are 
sold there.32 For example, on a prosecution for keeping a liquor 
nuisance, there was evidence tending to show that there was a barrel 
of ale on tap in a shed near defendant's grocery shop, and accessi- 
ble therefrom; that persons were seen going in that direction as if 
for a drink, accompanied by the defendant; and that others were 
seen carrying something away in pails and cans from somewhere 
near the shed. On this state of the proofs, it was held that there 
was sufficient evidence to sustain a conviction.33 
§ 498. Weight and Sufficiency of Evidence. 
When any proceeding for the punishment of a violation of the liquor 
laws is distinctively criminal in its character, it is subject to the rule 
that the guilt of the defendant must be established beyond a reason- 
able doubt. But where the statute provides that the fine imposed 
for unlawful selling may be enforced by criminal prosecution or sued 
for and recovered before a justice, a suit for the fine is not a criminal 
proceeding, but a civil action, and a recovery is justified by a mere 
preponderance of evidence.34 Beyond the application of such general 
principles as this, the question of the weight and sufficiency of the 
evidence, in prosecutions of this character, depends peculiarly upon 
the varying facts of individual cases, and hence could not well be 
discussed in detail in this place. On the general question, however, 
the decisions collected in the margin will be found to present points 
of interest and value.36 
32 Comm. v. Finnerty, 148 Mass. 162, 
19 N. E. Rep. 215. 
33 Comm. v. Kelley, (Mass.) 25 N. E. 
Rep. 835. 
34 Proctor v. People, 24 Ill. App. 599. 
36 See Comm. v. Harvey, 1 Gray, 487; 
Comm. v. Hoye, 9 Gray, 292; Comm. v. 
Thrasher, 11 Gray, 57; Comm. v. Hil- 
dreth, Id. 327; Comm. v. Dobbyn, 14 
Gray, 44; Comm. v. Edds. Id. 406; 
Comm. v. Livermore, 4 Allen, 434; 
Comm. v. Powderly, 148 Mass. 457, 19 
N. E. Rep. 781; Comm. v. Clynes, 150 
Mass. 71, 22 N. E. Rep. 436; Klug v. 
State, 77 Ga. 734; Needham v. State, 19 
Tex. 332; Sowle v. State, 21 Ind. 236; 
State v. Blair, 72 Iowa, 591, 34 N. W. 
Rep. 432; State v. Jarrett, 35 Mo. 357; 
People v. Cox, 70 Mich. 247, 38 N. W. 
Rep. 235; People v. Hicks, 79 Mich. 457, 
44 N. W. Rep. 931; People v. Kridler, 
80 Mich. 592, 45 N. W. Rep. 374. 
587 § 500 
[Ch. 20 
LAW OF INTOXICATING LIQUORS. 
§ 499. Knowledge and Intent. 
As a general principle, where a statute makes a given act indict- 
able, proof of a violation of the law is sufficient to warrant a convic- 
tion, without proof of a guilty intent. Thus, under a law forbidding 
the sale of liquor without a license, it is not necessary to prove a 
criminal intent in order to convict.36 There are cases, however, in 
which the intention of the defendant becomes an essential element 
in a statutory misdemeanor and must accordingly be proved. Such 
is the case in the offense of keeping liquors with intent to sell them 
unlawfully. Where the defendant is ignorant of the circumstances 
which make his act unlawful, he cannot of course be charged with a 
criminal intent. But the availability of such ignorance as a defense, 
and consequently the necessity of proving knowledge as a means of 
establishing a guilty mind, is, in many instances, a mooted point. 
This is the case in regard to sales of liquor to minors and drunkards, 
made in ignorance of the purchaser's age or habits, where numerous 
courts hold that there is no legal culpability in the seller, and others 
hold that he is guilty without proof of knowledge or intent. This 
point we have already discussed in detail, as the learned reader may 
see in earlier sections.37 
§ 500. Connecting Defendant with Unlawful Acts Shown. 
When an act or state of facts, constituting a violation of the liquor 
laws, has been established by the proof, it will be proper to show the 
connection of the defendant with the unlawful act or state of facts by 
inferential or circumstantial evidence. Thus, a conviction for keep- 
ing open a tippling-house on Sunday will be sustained by proof that 
the house was a tippling-house, that it was kept open on Sunday, and 
that the defendant was the proprietor of it, although he may not nave 
been visible to those resorting to the house for the purpose of tip- 
pling.38 And upon a trial for the illegal selling of liquor, where it is 
36 Comm. v. Holstine, 132 Pa. St. 357, 
19 Atl. Rep. 273. 
37 Supra, §§ 416-418, 426. 
88 Sanders v. State, 74 Ga. 82. And 
see, also, Johnson v. City of Atlanta, 79 
Ga. 507, 4 S. E. Rep. 673; Comm. v. 
588 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 500 
proved that defendant was in possession of a house where the wit- 
nesses drank liquor, and where they left the money therefor on the 
counter, defendant being in the house at the time, though not in the 
same room, the jury should not be instructed to acquit, although the 
witnesses testify that they never bought any liquor from defendant or 
saw him sell any.39 Where it is necessary to show the ownership or 
proprietorship of the accused in the house where the illegal sales wTere 
made, (or where the liquors were unlawfully kept, or the nuisance 
maintained, or otherwise as the case may be,) this may be done by 
putting in evidence his statements, previously made, that he was the 
owner of the house,40 or that he was repairing the house and how 
much it would cost him;41 or by proving that, being ostensibly in 
charge of the house at the time charged, he spoke of it and of its con- 
tents as if he were the proprietor.42 So also, a sign-board put up in 
a bar-room occupied by the defendant, with the words "Boarding by 
J. B. Wilson," the defendant, painted thereon, is presumptive proof, 
if unexplained, that the defendant is the keeper of the bar-room.43 
But where the defendant, in a prosecution for selling without a license, 
introduces evidence that he was not the proprietor of the place in 
question, but had leased it to another, evidence that defendant was 
arrested about a year before for keeping a disorderly house at the 
place in question is not admissible to prove proprietorship, unless 
there is also evidence of some probable motive for his making a pre- 
tended lease and applying for a license in the name of another.44 
And so, on the trial of a druggist for selling liquor as a beverage, it is 
prejudicial error to permit a witness to testify that he saw the alleged 
purchaser of the liquor afterwards, and on the day on which he boughf 
it, according to his testimony, and that he had whisky which he said 
he bought of defendant.45 
Murphy, 147 Mass. 525, 18 N. E. Rep. 
403. Compare Lucker v. Comm., 4 
Bush, 410. 
39 Neighbors v. Comm., (Ky.) 9 S. W. 
Rep. 718. See State v. Barron, 37 Vt. 
W. 
40 Comm. v. Dearborn, 109 Mass. 368. 
41 Comm. v. Hildreth, 11 Gray, 327. 
42 State v. Wambold, 74 Iowa, 605, 38 
N. W. Rep. 429. 
43 State v. Wilson, 5 R. I. 291. 
44 People v. Bradt, 46 Hun, 445, 10 N. 
Y. Supp. 157. 
45People v. Hinchman, 75 Mich. 587, 
42 N. W. Rep. 1006. 
589 § 501 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
§ 501. Record of Prior Conviction. 
Upon the trial of one charged with having in his possession intoxi- 
cating liquors with intent to sell the same in violation of law, the rec- 
ord of his previous conviction for a similar offense is admissible in 
evidence upon the question of intent.46 And so, the record of such 
prior conviction is competent as a step in the proof that he kept a 
tenement used for the illegal keeping and sale of liquors, as charged 
in a subsequent complaint.47 But a previous conviction for being a 
common seller is competent evidence on the issue whether defendant 
has maintained a liquor nuisance, only when the conviction was based 
on sales made at the same place.48 But if the description of the 
building in the record of the former case is not inconsistent with that 
in the pending indictment, though less complete, evidence aliunde 
may be introduced to show that both descriptions refer to the same 
building.49 As to the identity of the respondent with the person 
named in the record of the prior conviction, that is a question of 
fact for the jury, and the mere identity of name is not sufficient to 
authorize the judge to withdraw the question from the jury and treat 
it as one of law.60 In the absence of an extended record, the docket 
entries are admissible to show a prior conviction, and will be sufficient 
proof thereof, unless a question of identity is raised.61 Where the 
pending prosecution is for a second offense, and defendant's prior 
conviction is relied on to increase the penalty, such prior conviction 
is equally conclusive whether his plea, in that case, was guilty, not 
guilty, or nolo contendere. "The decisive thing is not the former 
plea, but the former judgment."62 In Vermont, and probably in 
other jurisdictions, the proof of a prior conviction must be made 
belore verdict.63 
46 State v. Neagle, 65 Me. 468. 
47 Comm. v. Line, 149 Mass. 65, 20 N. 
E. Rep. 697. 
48State v. Hall, 79 Me. 501,11 Atl. Rep. 
181; Comm. v. Austin, 97 Mass. 595. 
49 State v. Hall, 79 Me. 501, 11 Atl. 
Rep. 181. 
50 State v. Lashus, 79 Me. 504, 11 Atl. 
Rep. 180. 
61 State v. O'Connell, (Me,) 14 Atl. 
Rep. 291; State v. Robbins, (Me.) 13 Atl. 
Rep. 584; State v. Lashus, 79 Me. 504,11 
Atl. Rep. 180; State v. Neagle, 65 Me. 
468. 
52 State v. Fagin, 64 N. H. 431, 14 Atl. 
Rep. 727. 
63 State v. Spaulding, 61 Vt. 550, 17 
Atl. Rep. 844. 
590 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 503 
§ 502. Evidence in Case of Joint Parties. 
Where parties are jointly indicted, in prosecutions under the liquor 
laws, the evidence should show their joint participation in the offense 
charged, or it will fail to warrant a conviction. Thus, where an 
indictment for retailing liquor charged that A. and B. made the sale 
to C., and it was proved that A. and B. had each sold liquor by retail 
to C. at different times at the same bar and in the same house, but 
no joint sale was shown, nor that either participated in the act of the 
other, it was held that the indictment was not sustained.64 So, where 
defendant's wife was made a co-defendant, but the only reference in 
the testimony to her was that, when one witness asked for liquor, 
defendant said he did not keep it for sale, but his wife had some 
which she kept for her private use, and that defendant got liquor and 
handed it to the witness over the counter, it was held that the com- 
plaint should be dismissed as to the wife.65 
§ 503. Proving Sale of Liquor. 
In a prosecution for an unlawful sale of intoxicating liquor, it is 
not always necessary that each separate element of a contract of sale 
should he distinctly and affirmatively proved. The law, for instance, 
implies a sale from the fact that, in a saloon, liquor was set before 
and drunk by a person calling for it.66 Consequently, if a man goes 
into a dram-shop, calls for a quantity of a specified liquor, and the 
same is drawn and delivered to him by the keeper of the shop, this 
is evidence of a sale proper to go to a jury, although there is no 
proof that any money was paid or that directions were given to 
charge the purchase.67 So also, it is sufficient to sustain a verdict 
of guilty, if the evidence shows that a person put down money in 
the defendant's presence, and carried away a bottle of liquor with- 
64Farrell v. State, 3 Ind. 573. 
65 State v. Matheison, 77 Iowa, 485, 42 
N. W. Rep. 377. 
66Auburn Excise Comm'rs v. Mer- 
chant, 34 Hun, 19. 
67 Hill v. State, 37 Ark. 395; State v. 
Simons, 17 N. H. 83. 
591 § 503 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
out objection.58 The fact of a sale may also be established by cir- 
cumstantial evidence. Thus, a conviction for selling liquor on Sun- 
day is sustained by evidence that one C. was seen to enter the defend- 
ant's bar-room on that day, and to come out in ten or fifteen minutes 
with a bottle full of whisky in his pocket, two hours after which the 
accused was found in the bar-room, especially when coupled with 
proof of an extreme anxiety on the part of the defendant to keep C. 
out of the way at the time of the trial.59 So it is competent to show 
that an order was sent by the purchaser, by telephone, to the estab- 
lishment of which the defendant was in charge, and that the liquor 
was accordingly sent to the purchaser.60 And the books of an express 
company are competent evidence to show the shipment and delivery 
of goods to the buyer.61 As in other cases, the confessions or admis- 
sions of the defendant are also proper evidence. Thus, his admis- 
sion, in a stipulation wherein he attempts to justify under a revoked 
license, that he sold the liquor as charged, is sufficient evidence to 
warrant a conviction.62 The personality of the purchaser, if described 
in the indictment, should be proved as laid. To illustrate,-a sale 
to a person acting as agent for an undisclosed principal may be 
charged as a sale to the agent, and consequently proof given, at the 
trial, of his acting as such agent will not constitute a variance. But 
evidence of a sale to an agent, with notice that he was purchasing 
for his principal, will not support an allegation, in the indictment, 
of a sale to the agent.63 If a single offense is charged in the indict- 
ment, with particular description of time, place, and other circum- 
stances, a single specific instance of unlawfully selling must be suf- 
68 McClure v. State, 43 Ark. 75; Liles 
v. State. Id. 95. But an indictment for 
selling without license is not supported 
by proof merely that liquor was drunk 
on defendant's premises by his invita- 
tion. State v. Quinn, 25 Mo. App. 102. 
See, also, State v. Spaulding, 61 Vt. 
505, 17 Atl. Rep. 844. And in a prose- 
cution for the sale of whisky on Sun- 
day, where the witness was so drunk at 
the time of the alleged offense as to be 
unable to testify whether the whisky 
was sold or given to him, or whether or 
not he paid for it, it was held that the 
evidence was not sufficient to sustain a 
conviction. Keller v. State, 23 Tex. 
App. 259, 4 S. W. Rep. 886. 
69 Comm. v. Stevens, (Mass.) 26 N. E. 
Rep. 96. 
60 State v. Priester, 43 Minn. 373, 45 
N. W. Rep. 712. 
61 State v. Kriechbaum, (Iowa,) 47 N. 
W. Rep. 872. 
62 Neuman v. State, 76 Wis. 112, 45 N. 
W. Rep. 30. 
63 Comm. v. Remby, 2 Gray, 508. 
592 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 504 
ficiently established by the evidence. And if the proof tends to show 
several sales made by defendant at different times, the jury should be 
instructed that they must find him guilty of making some one specific 
sale, in order to convict.64 Upon an indictment charging an unlaw- 
ful sale, a conviction cannot be had upon evidence tending to prove 
another and distinct offense not included in the act of selling. Thus, 
where suffering liquor to be drunk on the premises is a distinct offense 
from that of selling, evidence of the one will not support a convic- 
tion on an indictment charging the other.65 But where the statute 
prohibits the selling, giving away, or furnishing liquor, in such terms 
that an indictment under it may allege all these acts conjunctively, 
without duplicity, then, although the evidence may not clearly make 
out a sale, it does not follow that the defendant must be acquitted; 
for if it tends to establish either a sale or a furnishing, it must go 
to the jury.66 And when a person authorized to sell liquor for cer- 
tain purposes is indicted for selling for other purposes, the charge 
is not sustained by evidence that he exercised his privilege improp- 
erly, or that he made sales for the permitted purposes in an irreg- 
ular manner.67 Finally, it is to be observed that the fact that on 
certain occasions the defendant refused to sell intoxicating liquor to 
persons who wished to buy it has no tendency to contradict or con- 
trol evidence that at other times he had made such sales, and is not 
relevant to the issue of his having made the unlawful sales charged.68 
§ 504. Allegation of Sale and Proof of Gift. 
It is generally held that when the statute makes the selling of 
intoxicating liquors, under certain circumstances or to certain per- 
sons, a separate and distinct offense from the giving of liquors under 
the same conditions, proof of one of these acts will not sustain a 
charge of the other.69 And on an indictment for the unlawful sale 
64 Boldt v. State, 72 Wis. 7, 38 N. W. 
Rep. 177. Compare Comm. v. Leo, 12 
Gray, 33. 
66 State v. Apperger, 80 Mo. 173. 
66State v. Hassett, (Vt.) 23 Atl. Rep. 
584. 
67 State v. White, 31 Kans. 342, 2 Pac. 
Rep. 598. 
68 Comm. v. Barlow, 97 Mass. 597; 
Comm. v. Bickum, (Mass.) 26 N. E. Rep. 
1003; Corley v. State. (Ga.) 13 S. E. Rep. 
556; Barnes v. State, 20 Conn. 254. 
69Wlecke v. People, 14 Ill. App. 447; 
INTOX.LIQ.-38 
593 § 505 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
of liquor, an instruction which fails to distinguish between sales and 
gifts of liquor is erroneous.70 Nevertheless, in some of the states, a 
contrary view appears to obtain, and it is considered that a charge 
of selling may be sustained by evidence of giving, or vice versa.11 
And in a case in Indiana, where the indictment alleged a sale of 
liquor, and the proof did not show that money was paid, it was held 
that, as a gift would have been equally a violation of the law, a sale 
would be presumed.72 But where the statute does not prohibit the 
giving away of liquor, but only its sale, the case is free from any 
doubt; a conviction cannot be had unless a sale is proved.73 
§ 505. Evidence of Sales Other than Those Counted on. 
As a general principle, it is erroneous to admit evidence of a 
greater number of offenses than there are counts in the indictment; 
and hence, when an indictment for the unlawful selling of liquor 
contains but a single count, the prosecution should not be allowed to 
go to the jury upon evidence of more than one transaction, and if 
evidence of several sales has been introduced, the state should be 
required to elect.74 And when the proceeding is by information, and 
the prosecuting attorney files therewith a statement of evidence taken 
by him, relating to sales made by the accused, and no other specifi- 
cation of sales to be given in evidence is filed, the state should be 
confined to proving the sales specified in the statement.76 When, 
therefore, on an indictment for illegal selling, the prosecution has 
Humpeler v. People, 92 Ill. 400; New 
Decatur v. Laude, (Ala.) 9 South. Rep. 
382; Wood v. Territory, 1 Oreg. 223. 
See, supra, § 406. 
7» Birr v. People, 113 Ill. 645. 
71 Dahmer v. State, 56 Miss. 787; Dant 
v. State, 106 Ind. 79, 5 N. E. Rep. 870. 
72 Dant v. State, 106 Ind. 79, 5 N. E. 
Rep. 870. 
73 Keller v. State, 23 Tex. App. 259, 4 
S. W. Rep. 886. 
74 Hodgman v. People, 4 Denio, 235; 
Stockwell v. State, 27 Ohio St. 563; 
Stone v. State, (Miss.) 7 South. Rep. 
500; State v. Fierline, 19 Mo. 380; State 
v. Miller, 24 Conn. 522. But in Ver- 
mont, upon the trial of an indictment 
in several counts, for violations of the 
license law by selling liquor, it is held 
to be no error in the court to permit the 
prosecutor, after having given evidence 
tending to prove as many distinct 
breaches of the law by the respondent, 
within the time covered by the indict- 
ment, as there are counts in the indict- 
ment, to proceed and prove other sales 
within the same period of time. State 
v. Smith, 22 Vt. 74; State v. Croteau, 23 
Vt. 14, 54 Am. Dec. 90. 
75 State v. Lawson, (Kans.) 25 Pac. 
Rep. 864. 
594 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 506 
proved one unlawful sale, it is error to admit evidence of other sales, 
unless they all constitute one transaction, or the further evidence is 
necessary to identify the offender or to prove motive or scienter, or 
unless the whole series must be proved to make out the offense.78 
But evidence of other sales than that counted on, made on similar 
occasions, is admissible on the question of intent.77 And so where 
defendant's conviction is sought on an unlicensed sale, made by his 
wife in his presence and with his knowledge, evidence of similar sales 
made by her in his presence (although not proof to convict him) is 
admissible to illustrate the character of the sale in the particular 
case, and to show that it was made by his authority.78 So again, 
where it is claimed that the liquor alleged to have been sold was not 
intoxicating, it is then competent to give evidence of other sales, in 
order to show the purposes for which the liquor was sold and pur- 
chased.79 And where the particular sale is charged to have been 
made for purposes other than those allowed by defendant's permit, 
evidence of other sales to the same purchaser is competent to show 
that he did not buy for the excepted purposes, and that this was 
known to the accused.80 It is further to be remarked that the state 
is not restricted, in its evidence, to proof of sales which were testified 
to before the grand jury.81 And so, where the proceeding is by infor- 
mation, which is verified by both the prosecuting attorney and the 
prosecuting witness, it is not error to permit evidence to be intro- 
duced on the trial showing sales of liquor other than those of which 
the prosecuting witness had knowledge.82 
§ 506. Evidence of Selling without License. 
In a jury trial for a violation of a municipal ordinance imposing 
a license tax on liquor-sellers, evidence of the population of the city 
76 King v. State, 66 Miss. 502, 6 South. 
Rep. 188. Where it is apparent that 
the indictment refers to a sale testified 
to by a witness for the state, it is error 
to ask defendant, on his cross-examina- 
tion, as to a different transaction with 
respect to liquor. Bailey v. State, 67 
Miss. 333, 7 South. Rep. 348. 
77 Comm. v. Sinclair, 138 Mass. 493. 
78Hensly v. State, 52 Ala. 10. 
79 State v. Coulter, 40 Kans. 87, 19 
Pac. Rep. 368. 
80 State v. Elliott, (Kans.) 26 Pac. Rep. 
55. 
81 Comm. v. Phelps, 11 Gray, 73. 
82 State v. Reno, 41 Kans. 674, 21 Pac. 
595 § 507 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
and county, and the annual sales of liquor and the profits thereof, is 
properly rejected; because the reasonableness of the ordinance, if 
questioned, is for the court.83 An indictment for selling liquor with- 
out a license is supported by proof of such a sale on Sunday, although 
another provision of the statute makes it indictable to sell on Sun- 
day with or without a license.84 When the prosecution is for retail- 
ing liquors without having paid the occupation tax therefor, it is 
error to exclude the sheriff's receipt for the tax, offered in evidence 
by the defendant to prove that he had paid the tax.85 
§ 507. Burden of Proving License. 
In the state of Kansas, it is held that where a defendant is prose- 
cuted for selling intoxicating liquor without a license, the burden of 
proving a want of license is upon the prosecution.86 And in Wiscon- 
sin, the doctrine is that, in such a prosecution, the state must pro- 
duce some presumptive evidence that the defendant had no license,- 
as, by showing the absence of an entry in the record of licenses 
required by law7 to be kept by the town clerk,-before he can be called 
on «to prove the contrary.87 But these decisions are exceptional. 
The rule established by the vast preponderance of authority is that, 
in cases where a license to sell, if produced and relied on, would con- 
stitute a complete defense to the action, the prosecution is not bound 
to produce any evidence in support of the negative allegation that 
the sale was made without license, but on the contrary, the defend- 
ant must assume the burden of proving that he was duly licensed.88 
Rep. 803. And see People v. Henschel, 
(Sup.) 12 N. Y. Supp. 46. 
83 Elk Point v. Vaughn, 1 Dak. 113, 46 
N. W. Rep. 577. 
84 People v. Krank, 110 N. Y. 488, 18 
N. E. Rep. 242; Comm. v. Harrison, 11 
•Gray, 310. 
85 Curry v. State, 35 Tex. 364; State v. 
Terry, Id. 366. 
86 State v. Kuhuke, 26 Kans. 405; 
State v. Nye, 32 Kans. 201, 204, 4 Pac. 
Rep. 134, 136. 
87 Mehan v. State, 7 Wis. 670; Hepler 
v. State, 58 Wis. 46, 16 N. W. Rep. 42. 
There was also an early ruling to the 
same effect in Massachusetts, (Comm, 
v. Thurlow, 24 Pick. 374,) but it is in- 
consistent with the later decisions in 
that state. 
88 United States v. Nelson, 29 Fed. 
Rep. 202; State v. Crowell, 25 Me. 171; 
State v. Woodward, 34 Me. 293; State 
v. Simons, 17 N. H. 83; State v. Foster, 
23 N. H. 348, 55 Am. Dec. 191: State v. 
McGlynn, 34 N. H. 422; State v. Shaw, 
35 N. H. 217; State v. Nulty, 57 Vt. 543; 
Comm. v. Tuttle, 12 Cush 502; Comm, 
v. Lahy, 8 Gray, 459; Comm. v. Ryan, 
596 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 507 
Various reasons have at different times been advanced in support of 
this rule. Thus, Dr. Bishop thinks that a prima facie case is made 
out for the prosecution, without evidence on this point, by the pre- 
sumption that the defendant belongs to the general mass of people, 
who are unlicensed, rather than to the exceptional class of license- 
holders, and that, as there was certainly a time when he was not 
licensed, the presumption of continuance applies, which presumptions 
the rule requires him to overcome by proof.89 But we believe the rule 
is sufficiently justified by considerations of convenience and reason- 
ableness. It is a general and well-settled principle that "where the 
subject-matter of a negative averment lies peculiarly within the 
knowledge of the other party, the averment is taken as true, unless 
disproved by that party. Such is the case in civil or criminal pros- 
ecutions for a penalty for doing an act which the statutes do not per- 
mit to be done by any person except those who are duly licensed 
therefor; as, for selling liquors, exercising a trade or profession, or 
the like. Here the party, if licensed, can immediately show it with- 
out the least inconvenience, whereas, if proof of the negative were 
required, the inconvenience would be very great."90 Another view 
advanced by the court in Georgia, is that a plea of "not guilty," 
to a charge of selling without license, amounts to an allegation 
of selling with license, and the rule applies that he who alleges 
9 Gray, 137; Comm. v. Carpenter, 100 
Mass. 204; Comm. v. Shea, 115 Mass. 
102; Comm. v. Curran, 119 Mass. 206; 
Comm. v. Rafferty, 133 Mass. 574; Pot- 
ter v. Deyo, 19 Wend. 361; People v. 
Jefferson, (N. Y. App.) 3 N. E. Rep. 
797; State v. Passaic, 42 N. J. Law, 
87; State v. Camden, 48 N. J. Law, 
89, 2 Atl. Rep. 668; Geuing v. State, 
1 McCord, 573; State v. Morrison, 3 
Dev. L. 299; State v. Emery, 98 N. 
Car. 668, 3 S. E. Rep. 636; State v. Sor- 
rell, 98 N. Car. 738, 4 S. E. Rep. 630; 
Sharp v. State, 17 Ga. 290; Easterling 
v. State, 35 Miss. 210; Thomas v. State, 
37 Miss. 353; Pond v. State, 47 Miss. 
39; Fairly v. State, 63 Miss. 333; Haskill 
v. Comm., 3 B. Mon. 342; Williams v. 
State, 35 Ark. 430; Flower v. State, 39 
Ark. 209; Shearer v. State. 7 Blackf. 99; 
Noecker v. People, 91 Hl. 468; Schmidt 
v. State, 14 Mo. 137; State v. Lipscomb, 
52 Mo. 32; State v. Edwards, 60 Mo. 
490; State v. McNeary, 14 Mo. App. 410; 
Smith v. Adrian, 1 Mich. 495; State v. 
Schmail, 25 Minn. 370; State v. Bach, 
36 Minn. 234, 30 N. W. Rep. 764; State 
v. Cutting, 3 Oreg. 260. 
89 Bishop, Stat. Crimes, § 1051. 
90 1 Greenl. Ev. $ 79; Roscoe, Crim. 
Ev. (2d Edn.) 72; Starkie, Ev. 589; 
State v. Foster, 23 N. H. 348, 55 Am. 
Dec. 191; State v. Lipscomb, 52 Mo. 32. 
597 § 508 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
affirmative must prove it, especially if it is peculiarly within his 
knowledge.91 
The rule just stated, throwing the burden of showing a license on 
the defendant, applies as well to an agent or bar-keeper, justifying 
under his principal's license, as to the proprietor himself.92 And, if 
the local option law intervenes, the prosecution is not required to 
show that the question of license or no license was submitted to the 
people at the preceding election, as provided by law.93 In Massa- 
chusetts, a statute enacts that in all prosecutions for selling spir- 
ituous liquors without license, the burden of proving a license shall 
be on the defendant. This, it is held, obliges any person prosecuted 
as a common seller to prove any authority on which he relies in his 
defense; but it does not apply to an indictment for a nuisance by 
keeping a building used for the unlawful sale and keeping of liquors.94 
But if the holding of a license, instead of being a defense to the 
action, is a constituent element of the offense, so that the averment 
in regard to license is affirmative rather than negative, then it 
devolves upon the prosecution to show that the defendant was 
licensed. Thus, where an ordinance enacts that "no person shall 
keep open any saloon or place licensed under this ordinance . 
on Sunday," it is necessary, in order to secure a conviction for a 
violation of the ordinance, to prove that the defendant was a licensed 
saloon-keeper.95 It has also been ruled that, on the trial of one 
charged with aiding and abetting another in the unlawful sale of 
intoxicating liquor, the burden is on the state to prove that the latter 
did not have a license to sell such liquor.98 
§ 508. Evidence on Question of License. 
When the defendant undertakes to prove that he was duly licensed, 
as a defense to the prosecution, the best evidence on this point is of 
91 Sharp v. State, 17 Ga. 290. 
92 State v. McNeary, 14 Mo. App. 410. 
93 Smith v. Adrian, 1 Mich. 495. 
94 Comm. v. Lahy, 8 Gray, 459; Comm. 
v. Leo, 110 Mass. 414. 
96 Bloomington v. Strehle, 47 Ill. 72. 
See, also, State v. Whitter, 18 W. Va. 
806. 
96 Berning v. State, 51 Ark. 550, 11 S. 
W. Rep. 882. 
598 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 508 
course the license itself. The production of a license in proper 
form is a complete defense and precludes all further inquiry. As it 
is not collaterally impeachable, the finding of the licensing authori- 
ties, that defendant's petition and the other preliminary steps were 
regular and sufficient, is conclusive on the state.97 But the license 
or authority relied on must be co-extensive with the offense charged. 
Thus, proof that the defendant, during a part of the time embraced 
in an indictment for being a common seller of intoxicating liquors, 
was authorized to sell, is not an answer to the whole indictment.93 
And a license which does not give the defendant the privilege of sell- 
ing the particular liquors alleged to have been sold, or which does 
not authorize a sale for the purposes or under the circumstances 
charged, is no answer to the prosecution.99 If the prosecution under- 
takes to prove that the defendant was licensed, the evidence for this 
purpose may be drawn from the records of the court or board 
empowered to grant licenses, or from their minutes, if no extended 
record is kept.100 It may also be shown by the admissions of the 
defendant. Thus, where the accused, when asked by a police officer 
whether he was the licensed owner of a certain liquor shop, answered 
that he was, it was held that the jury might infer ownership and a 
license to sell liquors.101 
When the point to be proved is that the defendant was not licensed, 
the want of a license may be shown by the testimony of the officers 
charged with the duty of issuing licenses, or by the absence of any 
entry as to defendant in their records. Thus, in Kansas, where per- 
mits to sell liquor are issued by the probate judge, his testimony that 
he kept the records of permits, that the record showed none to have 
been issued to defendant, and that he never issued any such permit, 
is prima facie proof that the defendant had no authority to sell.102 So, 
when licenses are issued by a court, as such, the testimony of the 
97 State v. Evans, 83 Mo. 319. 
98 Comm. v. Putnam, 4 Gray, 16. 
99 Comm. v. Thayer, 8 Mete. (Mass.) 
525. See Huffstater v. State, 5 Hun, 
23. 
300 Comm. v. Bolkom, 3 Pick. 281; 
State v. Peterson, 38 Minn. 143, 36 N. 
W. Rep. 443; State v. Sannerud, 38 
Minn. 229, 36 N. W. Rep. 447. 
301 Comm. v. Cameron, 141 Mass. 83, 
6 N. E. Rep. 547. 
102 State v. Schmidt, 34 Kans. 399, 8 
Pac. Rep. 867; State v. Schweiter, 27 
Kans. 499. 
599 § 509 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
clerk is admissible to show that no license had been issued to defend- 
ant; and in the absence of any law requiring a record to be kept in 
such court of licenses issued, the testimony of such officer is the best 
and highest evidence of the fact.103 So, in Massachusetts, the record 
of the town or city clerk, containing the names of persons licensed, 
is sufficient evidence to show that defendant is not licensed.104 Where 
the prerequisite condition to the right to sell takes the form of pay- 
ment of a tax, the best evidence of its non-payment is the testimony 
of the officer who is directed by law to collect it.105 The want of a 
license or authority may also be shown by the admissions of the 
defendant. Thus, where he stated, when the process was served, 
that the city charged too much for licenses, and he could not afford 
to pay the price, and before the police court he pleaded guilty of 
violating the licensing ordinance, this was held sufficient proof that 
he had no license.106 
§ 509. United States License as Evidence. 
When the prosecution is for such offenses as being a "common 
seller" of liquors, keeping liquors for unlawful sale, maintaining a 
nuisance, or engaging in the business of liquor selling without proper 
authority, the fact that defendant has paid the special tax as a retail 
liquor-dealer, under the laws of the United States, is admissible in 
evidence for the purpose of showing what his business is, or that he 
keeps liquor for sale, or, generally, on the question of intent.107 This 
fact may be proved by the book containing a record of the names of 
persons paying special taxes, kept at the office of the collector of 
internal revenue as required by the federal statute;108 or by an exam- 
ined copy of the record of special taxes kept by the collector, when 
sustained by the oath of a person (not necessarily a person connected 
103 Elkins v. State, 13 Ga. 435. And 
see Mayson v. City of Atlanta, 77 Ga. 
662. 
104 Comm. v. Tuttle, 12 Cush. 502; 
Comm. v. Foss, 14 Gray, 50; Briggs v. 
Rafferty, Id. 525. 
105 People v. Paquin, 74 Mich. 34, 41 
N. W. Rep. 852. 
106 Pendergast v. Peru, 20 Ill. 51. 
107 Comm. v. Brown, 124 Mass. 318; 
State v. Mellor, 13 R. I. 666; State v. 
Teahan, 50 Conn. 92; State v. Intoxicat- 
ing Liquors, 44 Vt. 208; Comm. v. Kee- 
nan, 11 Allen, 262. Compare State v. 
Stutz, 20 Iowa, 488. 
108 State v. Gorham, 65 Me. 270. 
600 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 510 
with the office) who has compared it with the record;109 or by a 
written return made by the defendant to the collector, declaring an 
intention to carry on the business of a retail liquor-dealer for the 
ensuing year, with evidence of the payment of the tax;110 or by the 
testimony of a witness that he saw, hanging on the wall of defend- 
ant's bar-room, a paper purporting to be a license from the United 
States authorizing the defendant to sell liquor.111 In Massachusetts, 
the fact that a person keeps posted on his premises a United States 
tax receipt as a dealer in liquors, and in Maine, the fact of his pay- 
ment of the federal tax on liquor-sellers, is made, by statute, prima 
facie evidence that such person is engaged in the business of selling 
liquor.112 These statutes, it is said, are merely declaratory of the 
common law, and are valid.113 But they do not raise a conclusive 
presumption against the defendant. It is error to instruct the jury 
that they must find him guilty on proof of such facts alone; for such 
evidence is competent and sufficient to justify a verdict of guilty only 
if the jury are satisfied of defendant's guilt beyond a reasonable 
doubt.114 When it has been shown in evidence that the defendant 
took out an internal revenue license to sell liquor, it is competent 
for him, in rebuttal, to prove what passed between the assessor and 
himself, to show the purpose for which the license was taken out.116 
§ 510. Evidence of Sale by Servant or Agent. 
An indictment or complaint alleging an unlawful sale of liquor by 
the defendant is supported by proof that he sold it by his clerk, serv- 
ant, or agent.116 But when it has been shown that the sale was made 
by the hand of a servant or agent, it then becomes necessary to prove 
109 State v. O'Connell, 82 Me. 30,19 
Atl. Rep. 86; State v. Wiggin, 72 Me. 
425; State v. Spaulding, 60 Vt. 228, 14 
Atl. Rep. 769. And testimony as to 
the meaning of the letters "R. L. D.," 
(retail liquor-dealer,) in such record, 
is admissible, if the witness has such 
special knowledge as will enable him 
to testify in relation thereto. State v. 
O'Connell, supra. 
no State v. Teahan, 50 Conn. 92. 
111 Comm. v. Brown, 124 Mass. 318. 
112 Acts Mass. 1887, c. 414; Pub. Laws 
Me. 1887, c. 140. 
113 Comm. v. Uhrig, 146 Mass. 132, 15 
N. E. Rep. 156. 
114 State v. Liquors and Vessels, 80 
Me. 57,12 Atl. Rep. 794; State v. O'Con- 
nell, 82 Me. 30, 19 Atl. Rep. 86. 
116 Comm. v. Austin, 97 Mass. 595. 
116 Comm. v. Park, 1 Gray, 553; Parker 
v. State, 4 Ohio St. 563. 
601 § 510 
LAW OF INTOXICATING LIQUORS 
[Ch. 20 
that it was made in the presence of the principal, or with his knowl- 
edge and assent, or by his direction or authority.117 Evidence that 
the sale charged was made in defendant's bar-room or saloon, by a 
bar-keeper or person apparently in charge there, is prima facie evi- 
dence of the knowledge and consent of the owner.118 And defend- 
ant's admission of proprietorship and of having a license, and testi- 
mony that he kept the place, are evidence that sales made there were 
made by him or by his authority.119 So also, proof of sales by the 
master is admissible, as tending to show that the sale by the servant 
was with the assent and by the authority of the master.120 And evi- 
dence that liquors were kept on the premises for sale during a time 
prior to that specified in the indictment, and that the clerk, during 
the same time, had made sales to other persons, is relevant to the 
issue.121 Where the proof shows that the sale was made by defend- 
ant's wife at their dwelling, it is competent to prove that defendant 
had previously kept liquors for sale at that place, and that at the 
time of the sale alleged in the indictment he was engaged at the same 
place in the business of selling liquors, as tending to show the agency 
and authority of the wife to make the sale in question.122 There is a 
presumption that a wife who, on her husband's premises and in his 
presence and with his knowledge, makes illegal sales of liquor, does 
so as his agent. But this presumption does not attach to such sales 
so made by a woman living with a man as his concubine, and in such 
a case it must be shown by evidence that she acted as his agent in 
making the sale complained of.123 In Massachusetts, it is held that 
evidence of sales of liquor on the premises in the absence of the 
defendant by other persons is admissible, without other evidence that 
117 See Comm. v. Gillon, 2 Allen, 505; 
Comm. v. Williams, 4 Allen, 587; Comm, 
v. Lafayette, 148 Mass. 130, 19 N. E. 
Rep. 26; Comm. v. Brooks, 150 Mass. 59, 
22 N. E. Rep. 436; Comm. v. Keenan, 
(Mass.) 25 N. E. Rep. 32; State v. Bon- 
ney, 30 N. H. 206; Hall v. McKechnie, 
22 Barb. 244; Perkins v. State, (Ala.) 9 
South. Rep. 536; State v. Beloit, 74Wis. 
267, 42 N. W. Rep. 110. 
118 Kirkwood v. Autenreith, 11 Mo. 
App. 515; Amerman v. Kall, 34 Hun, 
126. 
119 Comm. v. Chadwick, 142 Mass. 
595, 8 N. E. Rep. 589. 
120 State v. Wentworth, 65 Me. 234, 20 
Am. Rep. 688. 
121 State v. Shaw, 58 N. H. 78. 
122 State v. Colby, 55 N. H. 72; State v. 
Roberts, Id. 483. 
123 United States v. Bonham, 31 Fed. 
Rep. 808. 
602 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 511 
they were his agents except that tending to show that he kept the 
tenement.124 And in Indiana, a conviction has been sustained on 
evidence that a man went to defendant's saloon on Sunday through 
his hotel, and, on calling for beer, defendant not being present, was 
told by a boarder to help himself from a certain bottle, which he did, 
leaving the price of a drink on the counter.125 On a trial for selling 
liquor without a license, the presumption is that the vendor is the 
owner of the liquor sold,126 and when the sale was made by the accused 
in person, the ownership of the liquor is immaterial, unless he jus- 
tifies under a license to the owner.127 But where the prohibition 
of the statute applies only to licensed dealers, the allegation of the 
indictment that the accused is a "dealer" is an essential affirmative 
allegation and must be proved, and evidence that the accused was 
merely a clerk in the saloon will not sustain such allegation.128 Evi- 
dence that a clerk's employer had forbidden him to sell intoxicating 
liquors in his shop is not competent evidence in favor of the clerk 
when charged with such sales.129 But a conviction cannot be had 
where the only act of the defendant appears from the evidence to 
have been done as the agent or assisting friend of the person for 
whom the liquor was procured, and the defendant was not interested 
in the liquor, the sale, or the money paid for it.130 
§ 511. Burden of Proving Legality of Sale. 
When a sale of intoxicating liquor has been shown as charged, if 
the defendant claims that the sale was not unlawful, because coming 
within the terms of an exception or proviso in the statute, or because 
made for specially permitted purposes, or under other circumstances 
which would relieve him from criminal responsibility, the burden is 
on him to establish this defense by proof.331 For example, when it 
124 Comm. v. Edds, 14 Gray, 406. 
Pierce v. State, 109 Ind. 535, 10 N. 
E. Rep. 302. 
126 Rana v. State, 51 Ark. 481, 11 S. W. 
Rep. 692. 
127 Evans v. State, (Ark.) 15 S. W. 
Rep. 360. 
128 Archer v. State, 10 Tex. App. 482. 
129 Comm. v. Tinkham, 14 Gray, 12. 
130 Morgan v. State, 81 Ala. 72,1 South. 
Rep. 472. 
131 State v. Cloughly, 73 Iowa, 626, 35 
N. W. Rep. 652; Shear v. Green, 73 
Iowa, 688, 36 N. W. Rep. 642; State v. 
Guisenhause, 20 Iowa, 227; State v. 
Becker, Id. 438; State v. Baughman, Id. 
603 § 512 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
is proved that a druggist has sold liquor without a license, the burden 
of proof is on him to show that the sale was made in good faith for 
medical purposes.132 And where there is evidence tending to show 
that the liquor was purchased for medicinal use, but none that it was 
sold for that purpose, a conviction is proper.133 So, when a person 
claims the right to sell liquors as being the importer, the burden is 
upon him to prove himself to be such.134 And the fact that defend- 
ant was acting as the agent of an importer, in making the sale 
charged, is likewise a matter of defense, and the burden is upon him 
to prove it by evidence sufficient to throw a reasonable doubt upon 
the case made by the prosecution.135 So, on the trial of an indict- 
ment for maintaining a liquor nuisance, the burden is on the defend- 
ant to show that the wine sold was made from fruits grown in the 
state, if that is his defense.138 And on the same principle, on an 
indictment for selling liquor without filing the oath and bond against 
adulteration, as required by the statute, where the evidence shows a 
sale, the burden is on the defendant to show that he had complied 
with the statute.187 
§ 512. Evidence as to Time of Offense. 
Where time is not of the essence of the offense, it need not be 
proved strictly as laid. But there are limits, in every case, within 
which the evidence must be confined, in respect to time, in order to 
warrant a conviction. Thus, if the law or ordinance under which 
the prosecution is brought is of comparatively recent adoption, or 
has been repealed and re-enacted, or suspended and revived, it must 
be made clearly to appear that the alleged offense was committed at 
a time when it was in force.138 Again, it must be shown that the acts 
charged were done within the period of limitations, and evidence of 
497; Gunnarssohn v. Sterling, 92 Ill. 
569. 
132 Miles v. State, 5 W. Va. 524; State 
v. Emery, 98 N. Car. 768, 3 S. E. Rep. 
810; Howard v. State, 5 Ind. 516. 
133Leppert v. State, 7 Ind. 300. 
134 State v. Robinson, 49 Me. 285. 
135 Comm. v. Zelt, 138 Pa. St. 615, 21 
Atl. Rep. 7. 
136 State v. Miller, 53 Iowa, 84, 4 N. 
W. Rep. 838. 
137 State v. Finn, 38 Mo. App. 504. 
See Cheadle v. State, 4 Ohio St. 477. 
138 Bennett v. People, 16 Ill. 160; 
Newlan v. Aurora, 14 Ill. 364. 
604 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 513 
transactions which took place before that time is not competent.139 
And in view of this rule, in a case where the only evidence as to time 
was that the defendant sold liquor on January 4th, with no mention 
of the year, it was held to be insufficient.140 The evidence must also 
be confined to acts done before the finding of the indictment. Hence, 
where the witnesses testify that the defendant sold them liquor, but 
they cannot say positively whether it was before or after the date of 
filing the information or finding the indictment, the evidence will not 
sustain a verdict of guilty.141 It is not always necessary, however, 
that the time proved should be co-extensive -with the time laid in the 
indictment. Thus, proof that the defendant maintained a building 
for the illegal sale of liquors a single day will support an indictment 
for maintaining the same during a year.142 
§ 513. Same; Single Unlawful Sale. 
Where the prosecution is for a single act of unlawful liquor-sell- 
ing, so that time is not of the essence of the offense, the time need 
not be proved strictly as charged, but it will be sufficient to show that 
the act was done at any time before the date of the indictment and 
within the period of limitation, although at a different day or time 
from that alleged.143 Thus, in Massachusetts, it is said that an indict- 
ment for an unlawful sale of liquor on a particular day is sustained 
by testimony of the alleged purchaser that he was frequently at the 
defendant's place and has no doubt that he sold him liquor during 
the month named, although the witness cannot recollect any par- 
ticular sale, or distinguish any one sale during the month from any 
other.144 So where the state elects to rely on a sale to a certain per- 
139 State v. Cofren, 48 Me. 364. 
140 State v. Tissing, 74 Mo. 72. 
141 State v. Reick, 43 Kans. 279, 23 
Pac. Rep. 577; Patton v. State, 80 Ga. 
714, 6 S. E. Rep. 273. 
142 Comm. v. Higgins, 16 Gray, 19. 
143 United States v. Burch, 1 Cranch 
C. C. 36; Virginia v. Smith, Id. 46; 
Comm. v. Kelly, 10 Cush. 69; Comm. v. 
Dillane, 1 Gray, 483; Comm. v. Leonard, 
9 Gray, 285; Comm. v. Dillane, 11 Gray, 
67; Comm. v. Maloney, 16 Gray, 20; 
State v. Whipple, 57 Vt. 637; Tiffany v. 
Driggs, 13 Johns. 253; State v. Ander- 
son, 3 Rich. 172; Miazza v. State, 36 
Miss. 613; Dansey v. State, 23 Fla. 316, 
2 South. Rep. 692; Fitzpatrick v. State, 
37 Ark. 373; Buckner v. State, 56 Ind. 
207; Fowler v. State, 85 Ind. 538; State 
v. Curley, 33 Iowa, 359; State v. Small, 
31 Mo. 197. 
144 Comm. v. Carroll, 15 Gray, 409. 
605 § 514 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
son on a certain day, and evidence of other sales to that person is 
admitted, the court may properly instruct the jury to convict if they 
shall find that the accused sold to that person at any time within two 
years prior to the finding of the indictment.145 Again, where an 
information charged the defendant with five distinct offenses in as 
many counts, it was held that an instruction to the jury that, to find 
him guilty as charged in each count, they must find that he sold to 
the person and at the time as therein charged, would be erroneous.146 
In some of the states, the opinion prevails that proof of a number of 
sales about the time alleged in the indictment and prior to the find, 
ing thereof, is sufficient to warrant a conviction.147 But elsewhere it 
is ruled that, under an indictment charging a sale on a particular 
date, the evidence must be addressed to some one specific instance of 
selling, although it may be on a different date. Hence, the indict- 
ment being so framed, evidence of distinct sales, made to different 
persons at dates reaching back a month from the date alleged, is not 
admissible.148 
§ 514. Same; Continuing Offense. 
When the offense charged against the defendant is continuous in 
its nature, (as, maintaining a liquor nuisance, keeping liquors for 
unlawful sale, being a common seller, etc.,) and the indictment lays 
the time with a continuando, by alleging the offense to have been 
committed on a day named and from that day to the finding of the 
indictment, or during a defined period, the evidence as to time need 
not be as broad as the allegation; it will be sufficient if the offense 
is shown to have been committed during any part of the time 
charged.149 And under a complaint for keeping a liquor nuisance on 
divers days between a day named and the day of the filing of the 
complaint, evidence of what took place on the day the complaint was 
And see Olmstead v. State, (Ala.) 9 
South. Rep. 737. 
145 State v. Elliott, (Kans.) 26 Pac. 
Rep. 55. 
146 State v. Malling, 11 Iowa, 239. 
147 Koch v. State, 32 Ohio St. 353. 
148 Boldt V. State, 72 Wis. 7, 88 N. W. 
Rep. 177. 
149 Comm. v. Wood, 4 Gray, 11; 
Comm. v. Armstrong, 7 Gray, 49; 
Comm. v. Lamere. 11 Gray, 319; 
Comm. v. Hersey, (Mass.) 9 N. E. Rep. 
838; Clinton v. State, 83 Ohio St 27. 
606 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 514 
filed is admissible to show the intent with which the liquors were 
kept.150 But it has been held that where the offense is of this char- 
acter, and where the time is set out with a continuando, time is so 
far material that the evidence must be confined to acts which hap- 
pened within the days alleged, and proof of anything prior to such 
days cannot be admitted.151 And this rule appears to be now settled 
in the states of Maine and Massachusetts at least. But it is contro- 
verted, in some other jurisdictions, so directly, and with such show 
of reason, that its general applicability may be seriously doubted. 
In Kansas, for instance, it is fairly held that, on an indictment for 
maintaining a liquor nuisance, the state may show that the offense was 
committed at a time prior to that alleged.152 And in Vermont, it is 
150Comm. v. Carney, (Mass.) 26 N. E. 
Rep. 94; Comm. v. Moore, 147 Mass. 
528, 18 N. E. Rep. 403; Comm. v. Shea, 
14 Gray, 386. 
151 State v. Small, 80 Me. 452, 14 Atl. 
Rep. 942; Comm. v. Briggs, 11 Mete. 
(Mass.) 573; Comm. v. Purdy, 146 Mass. 
138, 15 N. E. Rep. 364; Comm. v. Slos- 
son, (Mass.) 25 N. E. Rep. 835; Breval- 
do v. State, 21 Fla. 789. 
152 State v. Reno, 41 Kans. 674, 21 Pac. 
Rep. 803. In this case, after noticing 
certain citations from the two states 
named, the court said: "We think these 
cases do support the claim made by the 
defendant; and while they evidently 
state the law of Massachusetts and 
Maine, we do not think that they state 
the law as it exists elsewhere. It is not 
the English common law as understood 
in England, or in this country outside 
of Massachusetts and Maine. The gen- 
eral rule of law is that it is not neces- 
sary to prove that the offense was com- 
mitted at the time at which it is alleged 
to have been committed, but it may be 
proved to have been committed at any 
time within the period prescribed by 
the statute of limitations within which 
the action might be commenced. There 
are some exceptions to this general 
rule, as where offenses cannot be com- 
mitted except on certain days or within 
certain specific portions of time, as on 
Sunday, on the Fourth of July, on elec- 
tion days, or in the night-time. But 
this present case does not come within 
any of the exceptions mentioned by any 
of the authorities as existing anywhere 
except in Massachusetts and Maine. 
See the following authorities support- 
ing the general doctrine: 2 Hawk. P. C. 
p. 613, § 169; 1 Archb. Crim. Pr. *119; 
5 Bac. Abr. ' Indictment,' G, 4; Rose. 
Crim. Ev. 89; Whart. Crim. Ev. § 103; 
1 Bish. Crim. Proc. §§ 397, 402, and 
notes. Mr. Bishop does not regard 
'the peculiar Massachusetts doctrine' 
as being good law, and believes it to be 
against reason and against all authority 
elsewhere. We know of no adjudicated 
cases outside of Massachusetts and 
Maine precisely in point. However, in 
Oregon, in the case of State v. Ah Sam, 13 
Pac. Rep.303, [14 Oreg. 347,] the supreme 
court took occasion to express their dis- 
approval of the Massachusetts doctrine. 
Certainly, if an offense consisting of a 
single act, and alleged to have been 
committed on a certain day, may be 
proved to have been committed on 
some other day, it would seem that an 
offense continuous in character, or con- 
sisting of several distinct acts commit- 
ted at different times, and alleged to 
have been committed within a certain 
607 § 515 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
said that, on such a prosecution, evidence of the character of the 
place on a day before or after the day alleged is admissible, as tend- 
ing to show that it was a statutory nuisance on any day within the 
time limited for the prosecution.163 When the offense charged is con- 
tinuous in its character, (as that of being a common seller of liquors,) 
but is alleged to have been committed on a particular day, the court 
in Massachusetts holds that evidence of sales before or after that day 
is not admissible.164 But the soundness of this rule is open to ques- 
tion on the same grounds to which we have just adverted. 
§ 515. Same; Sale on Sunday. 
When the criminal act charged is a sale of liquor on Sunday, it 
must be proved to have been made on that day of the week. But 
the day of the month, if specified, need not be proved as alleged. 
For even if the date given fell upon some other day of the week, still, 
if the indictment explicitly names Sunday as the day of the offense, 
the error is immaterial and may be disregarded.168 And indeed, evi- 
dence of a sale on any Sunday within the period of limitations will 
be sufficient to sustain a conviction.166 And it has been said that if 
the evidence shows a sale on some Sunday within two years before 
the finding of the indictment, it need not fix the precise Sunday 
within that time.167 But it is clear that the year of the offense must 
be proved; it is not enough to show that the sale was made on a Sun- 
day and on a given day of the month, although, in point of fact, that 
period of time, consisting of many days 
or even months, might be proved to 
have been committed within some other 
period of time; provided, of course, 
that the offense which is proved is not 
barred by any statute of limitations." 
i®3 State v. Haley, 52 Vt. 476. In Rhode 
Island, it is said that evidence that the 
defendant is the occupant of a tene- 
ment in which a bar room is kept, need 
not be confined to the period of the 
time laid in the indictment as that dur- 
ing which he applied a portion of it to 
the criminal use of a bar-room, although 
the proof of such criminal use must be; 
but his occupation both before and 
after such period may be given in evi- 
dence, as affording proof of his occupa- 
tion during such period. State v. Knott, 
5 R. I. 293. 
154 Comm. v. Elwell, 1 Gray, 463; 
Coram, v. Gardner, 7 Gray, 494. 
166 Supra, § 479. 
is" Koop v. People, 47 Ill. 327; Me- 
gowan v. Comm., 2 Mete. (Ky.) 3. 
167 Pancake v. State, 81 Ind. 93. 
608 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 516 
day of that month, in a year which was within the period of limita- 
tions, was Sunday.158 
§ 516. Evidence as to Place of Offense. 
Under an indictment for a violation of the liquor laws, it is essen- 
tial that the evidence as to place should be at least specific enough 
to show that the offense was committed within the territorial juris- 
diction of the court.159 Some of the authorities go further than this, 
and require proof of the place as laid in the indictment. Thus, it 
has been held that an indictment charging the sale of liquor in the 
county of A., is not sustained by proof of a sale in the incorporated 
city of B., though that is in the county named.160 The same rule 
has been applied where the indictment charged a sale in one town- 
ship and the proof showed a sale in another.161 But in a case where 
the evidence showed that the sale was made at defendant's store, but 
did not show whether the store was in the district laid in the indict- 
ment, it was held that the jury might infer, from any facts within 
their own knowledge, that the store was within the venue.162 At any 
rate, when the averment that the sale was made at a particular place 
is made by way of local description, and not as mere allegation of 
venue, the proof must correspond with the averment.163 And where 
the indictment is for the maintenance of a liquor nuisance, the place 
must be proved as laid in the indictment.164 In a complaint for a 
violation of the screen law, the fact that the licensed premises are 
described as a certain room, while the license produced in evidence 
i58Lehritter v. State, 42 Ind. 383. 
159 Jackson v. State, 19 Ind. 312; Sohn 
v. State, 18 Ind. 389; Deck v. State, 47 
Ind. 245; Long v. State, 56 Ind. 206; 
Garst v. State, 68 Ind. 37; Savage v. 
Comm., 84 Va. 582, 5 S. E. Rep. 563. 
i60Botto v. State, 26 Miss. 108. 
mi Moore v. State, 12 Ohio St. 387. 
162 State v. Williams, 3 Hill, (S. Car.) 
91. 
i63 Moore v. State, 12 Ohio St. 387. Un- 
der an indictment for the sale of liquor 
within two miles of the limits of a city, 
the legal establishment of those limits 
cannot be inquired into. The de facto 
limits may be proved by parol. Albia 
v. O'Harra, 64 Iowa, 297, 20 N. W. Rep. 
444. 
164 Comm. v. Heffron, 102 Mass. 148; 
Comm. v. Boyden, 14 Gray, 101; State 
v. Gurlagh, 76 Iowa, 141, 40 N. W. Rep. 
141. 
INTOX.LIQ. 39 
609 § 517 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
covers that room and also the cellar, does not constitute a material 
variance.166 
§ 517. Identification of Purchaser. 
While, as we have already seen, the authorities are conflicting upon 
the question whether an indictment for an unlawful sale of liquor 
must describe the purchaser by name,166 yet it appears to be settled, 
without much dissent, that if the purchaser is so described, the proof 
must correspond with the allegation, and the indictment will not be 
sustained by evidence of a sale to a different person.167 But it is 
said that, under an allegation of a sale to H. and "other persons 
unknown," evidence of a sale to a person other than H. is admis- 
sible.168 Whether an indictment charging an unlawful sale to one 
person is sustained by proof of a joint sale to that person and 
another, is a disputed point. It is ruled in the affirmative in 
Texas,169 and in the negative in Indiana.170 In Georgia, the doctrine 
prevails that, on an indictment charging the sale of liquor to two 
named persons, proof of a sale to either of them will warrant a con- 
viction, as the offense is complete when a sale is made to one.171 An 
indictment charging a sale of liquor as made to a person named will 
be supported by evidence that it was made to him through his servant 
or messenger, and the latter need not be mentioned by name or other- 
wise in the indictment.172 The name of the purchaser, if specified, 
must be proved with due certainty. Thus, where the indictment was 
165 Comm. v. Keefe, 140 Mass. 301, 4 
N. E. Rep. 576. 
166 Supra, § 464. 
167 State v. Hays, 36 Mo. 80; Comm. v. 
Blood, 4 Gray, 31. An indictment for a 
sale of liquor " to a certain person whose 
name is Mary Garland, " is not supported 
by proof of a sale to a person whose 
name at the time of the sale was Mary 
Garland, but who. before the indictment 
was found, acquired a new surname by 
marriage. Comm. v. Brown, 2 Gray, 
358. An allegation of an unlawful sale 
of liquor to "John Hairholser" is not 
sustained by proof of a sale to "John 
Hairholts. " Mitchell v. State, 63 Ind. 
276. But where the complaint charged 
the sale to have been made to one Will- 
iam Shepard, and the evidence showed 
a sale to William Hezekiah Shepard, it 
was held that there was no variance. 
State v. Feeny, 13 R. I. 623. 
168 State v. Finan, 10 Iowa, 19. 
169 Ryan v. State, 32 Tex. 280. 
170 Brown v. State, 48 Ind. 38. 
171 Hall v. State, (Ga.) 13 S. E. Rep. 
634; Dukes v. State. 79 Ga. 795, 4 S. E. 
Rep. 876. 
172Hall v. State, (Ga.) 13 S. E. Rep. 
634. 
610 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 518 
for giving liquor to Edward Gresh, a minor, and the evidence showed 
that the liquor was given to "Gresh," and that "Gresh" was nineteen 
years old, it was held that it was not proved that the liquor was 
given to the person named in the indictment, and the evidence was 
therefore insufficient.173 But the failure of the state to prove the 
name of the purchaser is immaterial, when the defendant himself 
has given the requisite proof.174 
§ 518. Evidence under Allegation of Sale to a "Person 
Unknown." 
When the allegation in regard to the purchaser is that the sale was 
made to "a person unknown" to the complainant or the grand jury, 
a majority of the decisions hold that the fact of the buyer being 
unknown is a material part of the case, and that, with such an alle- 
gation in the indictment, there can be no conviction on proof of a sale 
made to a person who was known to the complainant or the jurors at 
the time of preferring the indictment.175 In a case in Massachusetts, 
on this point, it was held correct to rule, at the trial, that the burden 
was upon the government to prove that the alleged sale was to a per- 
son whose name was unknown to the complainant, but that this 
might be proved by the person to whom the sale was made; and that 
it would be presumed, there being no evidence to the contrary, that 
that person or his name was unknown to the complainant; but that, 
if this presumption was rebutted or overcome by evidence introduced 
by either party, the defendant was entitled to a verdict.176 But such 
an allegation is supported by evidence of a sale to a person whose 
name was known to the complainant, if the complainant, at the time 
of making the complaint, did not know that the sale was to that per- 
son.177 Where the indictment charges the sale of liquor to a named 
person and other persons to the accuser unknown, it is held, in 
173 Meyer v. State, 50 Ind. 18. 
174Stolte v. State, 115 Ind. 128, 17 N. 
E. Rep. 258. 
178 Moore v. State, 79 Ga. 498, 5 S. E. 
Rep. 51; Comm. v. Pratt, 145 Mass. 248, 
13 N. E. Rep. 886; Comm. v. Herrick, 
12 Gray, 125. Compare State v. Coulter, 
40 Kans. 87, 19 Pac. Rep. 368; Comm, 
v. Luddy, 143 Mass. 563, 10 N. E. Rep. 
448. 
^Comm. v. Thornton, 14 Gray, 41. 
177 Comm. v. Hendrie, 2 Gray, 503. 
611 § 519 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
Georgia, that a joint sale to both, or a several sale to either, in which 
the named person participated, may be established, but not a several 
sale to a person, known or unknown, made when the named person 
was not present, and in which he was not concerned.178 But in Mis- 
souri, under an allegation so framed, where the evidence showed sales 
to other parties, but none to the named person, it was held that the 
variance between the pleadings and proofs was immaterial.179 
§ 519. Evidence of Quantity of Liquor Sold. 
Where the statute provides that no unlicensed person, or no per- 
son without a license of a certain sort, shall sell liquor in "less than" 
a certain quantity, it is necessary, to make out an offense under the 
act, that the evidence should show that the particular sale charged 
was of a quantity below the statutory minimum.180 But where the 
indictment charges the defendant with selling one quart, one pint, or 
any other specific quantity of liquor, and more especially where the 
quantity is laid under a videlicet, it is not necessary, in order to con- 
vict, that it should be proved that he sold the exact quantity men- 
tioned in the indictment; it is sufficient if it be shown that he made 
the sale charged, and that the quantity sold was less than the mini- 
mum prescribed in the statute.181 In one case, under an indictment 
for unlawfully selling liquor in a quantity less than a quart, the evi- 
dence showed that a "drink" was sold, for which ten cents was paid; 
and it was held that the jury were authorized to find that the quan- 
tity was less than a quart.182 So, where the indictment charged the 
sale of "one drink of whisky, less than a quart," and the testimony 
proved the sale of "a dram," it was considered sufficient to show a 
violation of the law.183 Neither is it necessary that any witness should 
expressly state the quantity sold, if there is evidence that it was less 
than the quantity the law allows.184 The testimony will sometimes 
178 Moore v. State, 79 Ga. 498, 5 S. E. 
Rep. 51. 
179 State v. Wolff, 46 Mo. 584. 
180 State v. Brosius, 39 Mo. 534. 
181 Comm. v. Buck, 12 Mete. (Mass.) 
524; Comm. v. Dillane, 11 Gray, 67; 
State v. Moore, 14 N. H. 451; State v. 
Connell, 38 N. H. 81; State v. Cooper, 
16 Mo. 551; State v. Andrews, 28 Mo. 
17. 
182 Hamilton v. State, 103 Ind. 96, 2 N. 
E. Rep. 299. 
183 Lacy v. State, 32 Tex. 227. 
184 Keiser v. State, 84 Ind. 229. 
612 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 520 
show a sale, at one and the same time, of several measures of liquor, 
each singly below the minimum, but aggregating more than that 
quantity. The circumstances must then determine whether the trans- 
action amounted to one sale of the whole or separate sales of the 
component parts. For example, in a case in Indiana, it appeared 
that a man brought three friends with him to defendant's saloon and 
called for four glasses of beer, which defendant supplied, and for 
which the man paid, and which were then drunk, one by each of the 
party. Each of the glasses held less than a pint, three of them 
together holding a quart. It was held that the evidence showed a 
sale of four several glasses of beer, containing each less than a pint, 
within the meaning of the statute.185 But on the other hand, evidence 
that defendant sold to the witness three pint bottles of beer for fifty 
cents, which was the regular price, though the price of each bottle 
singly was twenty cents, and wrapped them up in a bundle, and 
delivered them to the witness, who carried them off the premises, is 
not sufficient to sustain a conviction under a statute which prohibits 
the unlicensed sale of liquors in less quantities than one quart.186 
Where the prosecution is for selling liquor in quantities of a quart 
or more, contrary to the statute, the jury may properly be instructed 
that it is not necessary for the state to show that the quantity sold 
was not a drop less than a legal quart; as, for instance, where the 
liquor was sold in an ordinary brandy bottle, commonly known as a 
quart bottle, but in reality holding something less than a quart.187 
§ 520. Evidence as to Kind of Liquor Sold. 
Where the allegation in the indictment, in regard to the kind of 
liquor charged to have been sold, copies the general language of the 
statute, the proof will be sufficient if it shows a sale of any specific 
variety of liquor coming within those general terms. An indictment, 
charging the sale of "intoxicating liquors and mixed liquors, part of 
which was intoxicating," is supported by proof of a sale of intoxi- 
issweireter v. State, 69 Ind. 269. 
180 Olmstead v. State, (Ala.) 8 South. 
Rep. 668. 
187 Scott v. State, 25 Tex. Supp. 168. 
613 § 520 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
eating liquors not mixed.188 So an allegation that defendant sold 
"spirituous liquor" is supported by proof that he sold brandy or gin 
mixed with sugar and water.189 If the allegation of the kind of liq- 
uor sold is placed under a videlicet, this will excuse the prosecution 
from strict proof, unless the matter should become essentially descrip- 
tive of the offense.190 It has been held that where the indictment 
charged the sale of intoxicating liquor "to wit, whisky, brandy, rum, 
and gin," and the evidence showed that the liquor sold was alcohol, 
and not either of those named, the defendant should be acquitted.191 
But this decision does not appear to accord with the settled rules of 
criminal pleading. It is certain, however, that if a specific kind of 
liquor is named in the indictment, not accompanied by general 
descriptive terms, it must be proved as charged. This is in accord- 
ance with the rule that where a thing necessary to be mentioned in 
an indictment is described with unnecessary particularity, the thing 
must be proved as described. Thus, an indictment charging the 
unlawful sale of "whisky" is not supported by proof of the sale of 
any other kind of liquor.192 And on such a charge, proof of the sale 
of "Home Bitters" is irrelevant, unless it is shown to be made of 
whisky.193 But proof of sales of liquor other than that for which a 
conviction is sought is admissible upon the question of the intent 
with which the sale was made, defendant justifying under a druggist's 
license.194 
The determination of the species of liquor sold is not a question for 
expert testimony exclusively. A person, for example, who has fre- 
quently drunk fermented liquors, and is able to distinguish them by 
their taste, is competent to testify that a particular liquor which he 
has tasted is or is not fermented, although he has no knowledge of 
chemistry.195 So, where a witness testifies positively that he tasted 
liquor in a bottle which he got from the accused, and that it was 
whisky, which he knew because he had drunk whisky before, there 
188 Comm. v. Leonard, 11 Gray, 458; 
Comm. v. Burns, 9 Gray, 287. See 
Comm. v. Giles, 1 Gray, 466. 
189 Comm. v. White, 10 Mete. (Mass.) 
14. 
190 Frisbie v. State, 1 Oreg. 248. 
191 State v. Smith, 38 Mo. App. 618. 
192State v. Hesner, 55 Iowa, 494, 8 N. 
W. Rep. 329. 
193 Williams v. State, 35 Ark. 430. 
194 Dobson v. State, 5 Lea, 271. 
195 Merkle v. State, 37 Ala. 139. 
614 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 521 
is sufficient evidence of that fact to support a verdict of guilty.198 
And under an indictment charging the sale of blackberry wine, it is 
sufficient to show that the witness called for blackberry wine, and 
received in response a bottle of liquor and a glass, from which he 
drank a gill, whether or not he could tell blackberry wine from black- 
berry brandy.197 This fact-that the witness called for the particu- 
lar kind of liquor alleged to have been sold, and received liquor pur- 
porting to be of that kind, and drank it as such-is always admitted 
as competent evidence on the point, and is sufficient proof to deter- 
mine the species of the liquor, unless overborne by other evidence.198 
It is also admissible to introduce as evidence a bottle containing 
whisky, which is fully identified by the witness as the whisky which 
he bought from the defendant.199 Even less direct evidence than 
this may be received under proper circumstances. Thus, under an 
information charging the unlawful sale of intoxicating liquors, there 
was proof that the defendant sold a beverage called "Phoenix" which 
stimulated and intoxicated those who drank it; and it was held that 
evidence that defendant had a barrel of whisky on tap in his place of 
business tended to support the charge and was admissible.200 Declara- 
tions by defendant at the time of the sale of liquor that it was med- 
icine are not evidence that it was so.201 
§ 521. Proof of Intoxicating Properties of Liquor. 
On a trial for selling intoxicating liquors in violation of law, it is 
necessary to show by the evidence that the liquor sold was intoxicat- 
ing.202 There are certain kinds of liquor in regard to which the 
courts will take judicial notice that they are intoxicating, such as 
whisky, brandy, rum, or gin. And hence, for example, if the testi- 
mony shows that the article sold was whisky, it is not necessary to 
196 Territory v. Pratt, (Dak.) 43 N. W. 
Rep. 711; Burrell v. State, 25 Nebr. 581, 
41 N. W. Rep. 399. 
197_Taylor v. State, 113 Ind. 471, 16 N. 
E. Rep. 183. 
198Kammann v. People, 26 Ill. App. 
48; Baurose v. State, 1 Clarke, (Iowa,) 
374. 
199 Comm. v. Stevens, 142 Mass. 457, 8 
N. E. Rep. 344. 
200State v. Pfefferle, 36 Kans. 90, 12 
Pac. Rep. 406. 
201 Sills v. State, 76 Ala. 92. 
202 Josephdaffer v. State, 32 Ind. 402; 
Houser v. State, 18 Ind. 106; Burrell v. 
State, 25 Nebr. 581, 41 N. W. Rep. 399. 
615 § 521 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
follow this up with proof that whisky is intoxicating.203 But as a 
general rule, and especially where the liquor sold was disguised as a 
"tonic" or "bitters," or was called by some fanciful name with a view 
to eluding the law, the question whether or not it was intoxicating 
liquor is one of fact to be determined by the jury.204 In regard to 
beer, ale, and cider, it is doubtful whether their intoxicating proper- 
ties must not be proved. As we have pointed out in another place, 
many authorities hold that the question, in regard to such liquors, is 
whether their use is ordinarily or commonly attended with entire or 
partial intoxication, and that this is for the jury; though there are 
also numerous decisions that judicial notice may be taken that these 
are intoxicating liquors.205 Of course, if the statute declares that 
ale, beer, or cider shall be deemed intoxicating, this dispenses with 
the necessity of evidence on that point.206 
Proof of the intoxicating character of the liquor in question may 
be made by evidence of the effect of its use, derived from experiment, 
or by the opinion of a witness. The witness need not be an expert, 
if he has had personal experience or observation such as to enable 
him to form a correct opinion.207 And in one case, it was held that 
the jury were warranted in finding the liquor to be intoxicating, 
merely on the testimony of a witness who saw and smelled it but did 
not taste it.208 Proof that the witnesses were made drunk by the 
use of the article in question, or that it produced symptoms of intox- 
ication in them similar to those developed by the use of whisky or 
other admittedly alcoholic beverages, is also proper to go to the jury, 
even though no direct evidence or expert testimony has been intro- 
duced on the point.209 And the presence of drunken persons about 
defendant's place may also be corroborative evidence. Thus, if the 
203 Supra, §§ 12-15. 
2o4 State v. Wall, 34 Me. 165. 
205 Supra, §§ 16-18. 
206 Comm. v. Shea, 14 Gray, 386. 
20? Carl v. State, 87 Ala. 17, 6 South. 
Rep. 118. See, also, Comm. v. White, 
15 Gray, 407; Comm. v. Peto, 136 Mass. 
155; Savage v. Comm., 84 Va. 582, 5 S. 
E. Rep. 563. 
208 Haines v. Hanrahan, 105 Mass. 480. 
209 Comm. v. Reyburg, 122 Pa. St. 299, 
16 Atl. Rep. 351; Brantly v. State, (Ala.) 
8 South. Rep. 816. See Fairly v. State, 
63 Miss. 333. But if the state's witness 
testifies that the beverage sold by de- 
fendant intoxicated the witness, de- 
fendant may show that others, who 
drank it, were not intoxicated. Knowles 
v. State, 80 Ala. 9. 
616 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 522 
defense set up is that the only liquor kept at defendant's shop was 
a kind of beer that was not intoxicating, the prosecution may show 
that, several days before the day named, men were seen to go into 
defendant's place sober and come out drunk.210 And it is proper to 
prove that the "bitters" in question were bought and used as a bever- 
age, and drunk as such in the community.211 And in general, that 
the liquor sold was intoxicating may be shown by any circumstantial 
evidence satisfactory to the trial court.212 Thus, evidence showing 
that a customer called for beer, and was given liquor that looked like 
beer, with other evidence of like nature, will be sufficient to throw 
upon the defendant the burden of disproving the intoxicating char- 
acter of the liquor.213 So also, testimony that the defendant had 
whisky in stock at his place of business about the time of the alleged 
sale, and that persons who drank the beverage sold became intox- 
icated, is admissible on this question.214 And where the question is 
as to the quality of the liquor sold on a Sunday, and it is not dis- 
puted that intoxicating liquor was sold at the same place on week- 
d;iys, a conviction will not be disturbed.215 The fact that the jury, 
under proper instructions as to identity of quality, were allowed to 
take with them, on retiring, a bottle of liquid called "ale," which, 
though not part of the liquors seized, was manufactured and sold by 
the same person under the same name, affords no ground of excep- 
tion.216 
§ 522. Same; Chemical Analysis. 
Where the statute provides that all liquors containing more than a 
certain proportion of alcohol shall be deemed intoxicating, the proper 
method of showing the intoxicating character of a particular beverage 
in question is by the results of a chemical analysis. It is to be pre- 
210Comm. v. O'Donnell, 143 Mass. 
178, 9 N. E. Rep. 509. 
211 Carl v. State, 87 Ala. 17, 6 South. 
Rep. 118. 
212 Dant v. State, 83 Ind. 60. See State 
v. Matheison, 77 Iowa, 485, 42 N. W. 
Rep. 377; Comm. v. Savery, 145 Mass. 
212,13 N. E. Rep. 611; State v. Schultz, 
79 Iowa, 478, 44 N. W. Rep. 713. 
213 State v. Cloughly, 73 Iowa, 626, 35 
N. W. Rep. 652. 
214 State v. Adams, 44 Kans. 135, 24 
Pac. Rep. 71; State v. Pfefferle, 36 Kans. 
90, 12 Pac. Rep. 406. 
215 People v. Beller, 73 Mich. 640, 41 
N. W. Rep. 827. 
216 State v. McCafferty, 63 Me. 223. 
617 § 523 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
sumed that a chemist, employed to analyze liquor, analyzed it on the 
lines laid down by the statute, and that he understood the purpose 
for which he analyzed it.217 The admission of such evidence is of 
course conditional upon proper proof of identity. But where a wit- 
ness testified that on a certain day he corked, sealed, labelled, and 
sent by express from F. to a state assayer in B., in the same state, a 
bottle of beer, it is proper to admit testimony of the assayer as to the 
intoxicating quality of a bottle of beer, so labelled, received by him 
the next day by express.218 
§ 523. Proof of Being a Common Seller. 
In Massachusetts, it is made an offense to be a "common seller" 
of liquors without a license, and the statute provides that proof of 
three several sales by an unlicensed person "shall be sufficient evi- 
dence" to convict. Under this law, the jury are not merely author- 
ized, but required, to convict upon mere proof of three several unlaw- 
ful sales of liquor by the defendant within the time alleged.219 And 
evidence of three transactions, with sale, purchase, and delivery, 
distinct from each other, although at a single visit of the purchasers, 
and in pursuance of a preconcerted plan to obtain evidence against 
the seller, is competent proof of three sales.220 Nor is it necessary 
to prove three specific sales by direct evidence, but if the whole 
evidence satisfies the jury that the defendant had made as many as 
three sales during the time alleged in the indictment, they may find 
him guilty.221 It is also held that one may be convicted of this 
offense on well combined circumstantial evidence, such as the presence 
of intoxicated persons in his place of business, liquors found there, 
glasses on the bar, beer-pumps and other materials of the traffic, 
efforts to conceal liquor on the entrance of the officers, and the 
like.222 But evidence that the defendant, during a part of the time 
217 Comm. v. Magee, 141 Mass. Ill, 
4 N. E. Rep. 819. 
218 Comm. v. Bentley, 97 Mass. 551. 
219 Comm. v. Barker, 14 Gray, 412. 
220 Comm. v. Graves, 97 Mass. 114. 
221 Comm. v. Dady, 7 Allen, 531; 
Comm. v. Mahony, 14 Gray, 46. See 
Comm. v. Snow, 14 Gray, 385. 
222 Comm. v. Cotter, 97 Mass. 336; 
Comm. v. Van Stone, Id. 548; Comm, 
v. Webster, 6 Allen, 593; Comm. v. 
Boyden, 14 Gray, 101. See Comm. v. 
618 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 524 
covered by the indictment, kept a public house, and had upon it an 
inn-keeper's sign, is irrelevant and inadmissible; because one maybe 
licensed as an inn-keeper without the right to sell liquors, and it can- 
not be presumed that he violated the law.223 Another statute in the 
same state provides that delivery of intoxicating liquor in or from 
any building other than a dwelling-house shall be deemed prima 
facie evidence of a sale. This, it is held, applies to a prosecution 
for being a common seller; and the defendant has no ground of 
exception to an instruction that such delivery is prima facie evidence, 
but not conclusive, and that if in the opinion of the jury there is no 
evidence to control it, it is their duty to convict if enough sales are 
proved.224 It is incumbent on the state, in a trial for this offense, 
to prove that the sales relied on were not such as the defendant might 
lawfully make without license or written authority.225 
§ 524. Proof of Pursuing Business of Liquor-Selling. 
Where the offense charged is that of "pursuing" or "engaging in" 
or "carrying on" the business of selling liquor, without a license, or 
without payment of the tax, the proof is somewhat different from that 
in the cases already considered. Evidence that a person is reputed 
to deal illegally in liquors is not admissible to show that such is his 
business.226 But it may be shown that the defendant, before com- 
mencing to sell, told various persons that he intended to sell liquors, 
and that casks and barrels were seen in his yard, and that a man 
was seen unloading them there.227 And a single sale may be made 
under circumstances indicating that it was made in the course of the 
seller's usual business; and hence, although it may not be sufficient in 
itself to prove the continuance of the business or that that was the 
seller's business, it is competent evidence on that point and should 
go to the jury.228 So also, evidence that, during the time defendant 
is charged with having carried on the business, freight and transfer 
Munn, 14 Gray, 361; Comm. v. Tubbs, 
1 Cush. 2. 
223 Comm. v. Madden, 1 Gray, 486. 
224 Comm. v. Pillsbury, 12 Gray, 127. 
223 Comm. v. Livermore, 2 Allen, 292. 
226 Warner v. Brooks, 14 Gray, 107. 
227 Comm. v. Davenport, 2 Allen, 299. 
228 Comm. v. Coolidge, 138 Mass. 193. 
See Lawson v. State, 55 Ala. 118. 
619 § 525 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
agents received and delivered large quantities of intoxicating liquors 
consigned to him, is competent.229 In one case, evidence that defend- 
ant was seen "three or four or five times" engaged in distilling rum, was 
held sufficient to authorize his conviction for being engaged in that 
business.230 And in another case, it was considered that a conviction 
might be had on proof that defendant, "on a few several occasions, 
sold case whisky in quantities less than a quart," and that he had no 
license.231 
§ 525. Proof of Keeping Liquors for Unlawful Sale. 
Where the prosecution is for the statutory offense of keeping intox- 
icating liquors with intent to sell the same in violation of law, pos- 
session and intent are the two essential facts to be proved. No actual 
sale is necessary to complete the offense. And hence a case may be 
made out under such a statutory provision without any evidence 
showing a sale or an offer or attempt to sell.232 But of course the 
fact of sales being made is admissible and strong evidence. And the 
unlawful intent with which liquors were kept may be presumed from 
the fact of their sale in violation of law.233 Hence, although evidence 
to prove a particular sale should not be received for the purpose of 
convicting the defendant of that sale as an offense, unless it is so 
charged in the indictment, it is admissible as showing the intent with 
which the liquor so sold was kept.234 The fact of liquors being found 
on the defendant's premises will ordinarily be sufficient to establish 
the fact of his keeping them. But this alone does not make out the 
whole offense. In addition, the jury must find that, on the day when 
the liquor was so found, the defendant kept it with intent to sell, and 
229 Hanlon v. State, 51 Ark. 186, 10 S. 
W. Rep. 265; Klepfer v. State, 121 Ind. 
491, 23 N. E. Rep. 287. 
239 Grant v. State, 73 Ala. 13. 
231 Lemons v. State. 50 Ala. 130. 
232 State v. McGlynn, 34 N. H. 422, A 
complaint for unlawfully exposing and 
keeping for sale intoxicating liquors, 
with intent unlawfully to sell the same, 
is supported by proof of the keeping 
with intent, though there was no ex- 
posure. Comm. v. Atkins, 136 Mass. 
160; Comm. v. Henderson, 140 Mass. 
303, 5 N. E. Rep. 832; Comm. v. Welch, 
140 Mass. 372, 5 N. E. Rep. 166. 
233 State v. Sartori, 55 Iowa, 340, 7 N. 
W. Rep. 604; State v. Munzenmaier, 24 
Iowa, 87. See Comm. v. Fitzgerald, 14 
Gray, 14; Comm. v. Gavin, 148 Mass. 
449, 18 N. E. Rep. 675. 
234 State v. Hartwick, 49 Conn. 101; 
State v. Raymond, 24 Conn. 204. 
620 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 525 
they have a right, from the circumstances, to say whether the defend- 
ant did or did not keep such liquor for sale.235 But from evidence of 
the unexplained possession of liquors under suspicious circumstances, 
the jury will be justified in inferring an intent to sell them.236 And 
when evidence has been given that the defendant kept a saloon both 
before and after the date named in the complaint, the prosecution 
may show, on the question of intent, that the defendant had liquor 
at his saloon a week or ten days later than that date. "Upon the 
question of intent, in such a case, the acts of the defendant soon 
after, as well as shortly before, the act complained of, may have a 
bearing." 237 In Vermont, in aid of prosecutions of this sort, the 
statute makes the fact of finding liquor in a man's house prima facie 
evidence of an intent to sell.238 And in Rhode Island, it is provided 
by law that "evidence of the sale or keeping of intoxicating liquors 
for sale . . . shall be evidence that the sale or keeping is 
illegal." 239 And in cases where the person accused would have a 
legal right to sell certain kinds of liquor, or to sell any kind for cer- 
tain permitted purposes, his stock on hand may furnish evidence of 
the unlawful intent which he entertained. Thus, in a prosecution 
against a druggist, in determining the purpose for which he kept liq- 
uors, the jury may consider the amount and kinds kept.240 And so, 
evidence tending to show that defendant kept ale for sale in his house 
at a certain time, is competent on the question whether spirituous 
liquors, which he kept there at the same time, were kept for sale.241 
The intent to sell unlawfully may also be proved by even less direct 
evidence; for instance, by evidence of the condition of the room where 
the liquors were alleged to be kept, as to its appointments and fixt- 
235 Comm. v. Berry, 109 Mass. 366. 
236 Comm. v. Fisher, 138 Mass. 504; 
Comm. v. Gallagher, 124 Mass. 29; 
Comm. v. Levy, 126 Mass. 240. See, 
also, Comm. v. Purtle, 11 Gray, 78; 
Comm. v. Tenney, 148 Mass. 452, 19 N. 
E. Rep. 556. But one charged with the 
illegal keeping of intoxicating liquors 
in a dwelling-house and its appurte- 
nances. cannot be convicted on proof 
that he kept liquors in a stable not used 
in connection with the dwelling house, 
where the stable was used exclusively 
by defendant, and the house exclusively 
by another person. State v. Kelleher, 
81 Me. 346, 17 Atl. Rep. 168. 
237 Comm. v. Matthews, 129 Mass. 487. 
238 Lincoln v. Smith, 27 Vt. 328. 
239 State v. Hoxsie, 15 R. I. 1, 22 Atl. 
Rep. 1059. 
240 State v. Shank, 74 Iowa, 649, 38 N. 
W. Rep. 523. 
241 State v. Gorman, 58 N. H. 77. 
621 § 526 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
ures.242 So the jury may convict on evidence that defendant's place 
was a place of common resort; that intoxicated persons were seen 
to come from there; that, at the time of a search, there were signs 
of recent drinking; and that defendant, within a month, was engaged 
in laying in a stock of liquor.243 So again, evidence that the defend- 
ant, on being arrested, tried to conceal a bottle of liquor in his pocket, 
and afterwards threw it away, is competent evidence on the question 
of his illegally keeping liquor for sale.244 But testimony that it has 
been a matter of common report and public notoriety that intoxicat- 
ing liquors were sold by the defendant is not admissible.245 Neither 
is it proper to receive evidence that, some months before the offense 
charged, defendant promised not to sell any more liquor on certain 
conditions.246 Where the defendant testifies that he had given, but 
not sold, liquors to the persons to whom sales are charged to have 
made, (as evidence of his illegal intent,) he should call such persons 
in corroboration of his evidence; and if he does not, the jury may 
take that circumstance into consideration.247 
§ 526. Proof of Keeping Place for Unlawful Sale. 
On the trial of an indictment for the statutory offense of "main- 
taining a tenement used for the illegal keeping and illegal sale of 
intoxicating liquors," it is not necessary for the prosecution to prove 
an act of sale or offering for sale.248 But, as in the case of the offense 
discussed in the preceding section, proof of actual sales is not only 
admissible but strong evidence on the question of intent; that is, to 
show that such was the purpose for which the tenement kept by 
defendant was used.249 And the testimony of witnesses that they 
242 Comm. v. Powers, 123 Mass. 244. 
243 Comm. v. Mead, 140 Mass. 300, 3 N. 
E. Rep. 39; Comm. v. Leighton, 140 
Mass. 305, 6 N. E. Rep. 221. See, also, 
Comm. v. Lynch, 151 Mass. 358, 23 N. 
E. Rep. 1137; Comm. v. Patten, 151 
Mass. 536, 25 N. E. Rep. 20; Comm. v. 
Ham, 150 Mass. 122, 22 N. E. Rep. 704. 
244 Comm. v. Wallace, 123 Mass. 400. 
245Cobleigh v. McBride, 45 Iowa, 116. 
246 Comm. v. Purdy, 147 Mass. 29, 16 
N. E. Rep. 745. 
247 Comm. v. Cummings, 121 Mass. 63. 
248 Comm. v. Boyle, 145 Mass. 373, 14 
N. E. Rep. 155. 
249 Comm. v. Greenen, 11 Allen, 241. 
The indictment may be supported by 
evidence of sales of intoxicating liquor 
on Sunday, although the liquor is such 
that its sale on other days would not be 
622 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 526 
have seen liquor delivered in answer to calls for -whisky and for ale 
is competent evidence, its weight being for the jury.250 It is also 
necessary to show that the defendant was the proprietor or keeper of 
the place in question. This maybe made out by indirect or circum- 
stantial evidence satisfactory to the jury.251 Thus, a business card 
containing the defendant's name and address and the words "dealer 
in imported wines and liquors," and admitted to have been printed 
for him, is admissible in evidence.252 And evidence that defendant 
had previously resided in the building, that he was seen there dur- 
ing the time the liquor was being sold, and that he had the building 
repaired a few months before, sufficiently connects him with the prem- 
ises to render admissible a deed thereof made nine years before to a 
person of defendant's name and residence.253 An application for a liq- 
uor license is also admissible in evidence, as tending to show that 
the applicant kept the place, no change appearing.254 But the indict- 
ment is not sustained by proof that the owner of the premises made 
a written lease to another, knowing that the lessee intended to use 
them for unlawful liquor-selling, and that the lessee so used them.255 
Nor is the evidence sufficient when it only shows that an occupant 
of the house and servants of the defendant sold liquor there.256 The 
fact of keeping liquors for sale is shown by the discovery of liquors 
on the premises, when accompanied with such evidence as has a legal 
tendency to prove the purpose of their being there. Indeed, it is 
ruled that the finding of intoxicating liquors in any other place than 
one used as a private dwelling affords presumptive evidence that they 
are kept by the owner for sale, and will support an indictment for 
keeping and maintaining a place for such sale.257 And in general, 
the finding of liquors at the place in question, especially if under 
illegal. Comm. v. McCurdy, 109 Mass. 
364. But such complaint, against a de- 
fendant licensed to sell liquor to be 
drunk on the premises, is not sustained 
by proof of a single sale to a minor 
when he was in company with two 
adults. Comm. v. Hayes, 150 Mass. 506, 
23 N. E. Rep. 216. 
260 Comm. v. Aaron, 114 Mass. 255. 
261 Comm. v. Sisson, 126 Mass. 48. 
262 Comm. v. Twombly, 119 Mass. 104. 
253Comm. v. Mead, (Mass.) 26 N. E. 
Rep. 855. 
284 Comm. v. Andrews, 143 Mass. 23, 
8 N. E. Rep. 643. 
265 Comm. v. Churchill, 136 Mass. 148. 
See, also, Comm. v. Locke, 148 Mass. 
125, 19 N. E. Rep. 24. 
256 Comm. v. Dunbar, 9 Gray, 298. 
257 State v. Norton, 41 Iowa, 430. 
623 § 526 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
suspicious circumstances, the presence of the materials and imple- 
ments for pursuing the traffic, the discovery of jugs, decanters, or 
glasses, evidences of recent drinking, attempts to hide away the liq- 
uor, when officers appear, or secretly to remove it from the building, 
are all competent and admissible evidence, the weight of which is to 
be appraised by the jury.288 As to the determination of the place 
alleged to have been so kept, it is held that an allegation of main- 
taining "a tenement in a building" used for the illegal sale of liq- 
uors, is supported by proof that the defendant so kept and used the 
cellar of his dwelling-house.289 And a charge of keeping "a certain 
tenement" is sustained by proof of keeping a whole building, using 
part only illegally, or of keeping a building consisting of only one 
room.260 But an indictment for keeping "a certain building" for such 
uses, is not sustained by proof of occupying and keeping one of sev- 
eral tenements in the same building.261 It is said that a lot of land, 
with buildings detached but used together, constitutes but one tene- 
ment, for the purposes of such a prosecution.262 But where the proof 
showed that the building occupied by defendant consisted only of a 
single room, but was joined to another structure on the same lot 
occupied by another person, it was held that the question whether 
defendant kept "a tenement in a building" was for the jury.263 In 
Massachusetts, where the statute prohibits the keeping of a tenement 
used for the illegal sale and illegal keeping for sale of intoxicating 
liquors, the indictment is supported by proof of keeping a tenement 
used for either purpose.264 
268 Comm. v. Kahlmeyer, 124 Mass. 
322; Comm. v. Moore, 147 Mass. 528, 18 
N. E. Rep. 403; Comm. v. Vahey, 151 
Mass. 57, 23 N. E. Rep. 659; Comm v. 
Lattinville, (Mass.) 25 N. E. Rep. 972; 
State v. Fertig, 70 Iowa, 272, 30 N. W. 
Rep. 633; State v. Illsley, (Iowa,) 46 N. 
W. Rep. 977. 
269 Comm. v. Welch. 2 Allen, 510; 
O'Keefe v. State, 24 Ohio St. 175. 
260 Comm. v. Godley, 11 Gray, 454. 
261 Comm. v. McCaughey, 9 Gray, 296. 
See, also, Comm. v. McArty, 11 Gray, 
456; Comm. v. Buckley, 147 Mass. 581, 
18 N. E. Rep. 571; Comm. v. Hersey, 
144 Mass. 297, 11 N. E. Rep. 116. 
262 Comm. v. Patterson, (Mass.) 26 N. 
E. Rep. 136. 
263 Comm. v. Lee, 148 Mass. 8, 18 N. 
E. Rep. 586. 
264 Comm. v. Carolin, 2 Allen, 169. 
But proof of keeping the place for the 
mere purpose of making illegal sales, 
without proof of an actual illegal keep- 
ing of liquors for sale, is not sufficient. 
Comm. v. Welsh, 1 Allen, 1. 
624 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 527 
§ 527. Evidence of Maintaining Nuisance. 
An indictment for the maintenance of a common nuisance, by the 
keeping of a place for the illegal sale and keeping of liquors, is sup- 
ported by evidence of unlawful sales of liquor by the defendant 
therein.265 But as the nuisance does not consist in the purpose or 
intention of the party to so use the premises, it is error to instruct 
the jury that if the defendant erected or used a building for the pur- 
pose and with the intent of owning, keeping, or selling intoxicating 
liquors therein, contrary to law, he would be guilty; because this 
would make punishable an unexecuted intention or an incomplete 
act.266 But a complaint for keeping and maintaining a liquor nui- 
sance is supported by proof of a keeping on a single occasion.267 At 
common law, evidence of the general reputation of the place or tene- 
ment kept by the defendant is not admissible.268 But where, as in 
Rhode Island, the statute provides that the notorious character of 
the premises shall be evidence that such premises are a nuisance, it 
is competent for witnesses to testify concerning the reputation of the 
premises, and the talk of the people concerning the premises as a 
place where liquors are sold and kept for sale.269 As evidence tend- 
ing to show the character of the place and the nature of the business 
carried on there, it is permissible to prove that intoxicated persons 
have been seen coming from the place.270 The locality of the alleged 
nuisance should be proved with certainty and as laid. But an indict- 
ment alleging that the defendant kept a tenement in N., is supported 
by proof that he maintained the nuisance in a house consisting of a 
single room, a small part of which was in W., a town adjoining N., 
and the remaining part in N., in which latter part the nuisance was 
maintained.271 So, where an indictment charged that the defendant 
265 Comm. v. Farrand, 12 Gray, 177. 
266 State v. Harris, 27 Iowa, 429. 
267 Comm. v. Kerrissey, 141 Mass. 110, 
4 N. E. Rep. 820. 
268 Comm. v. Eagan, 151 Mass. 45, 23 
N. E. Rep. 494. 
269 State v. Wilson, 15 R. I. 180, 1 Atl. 
Rep. 415. See State v. Kingston, 5 R. 
I. 297; State v. Spaulding, 61 Vt. 505, 17 
Atl. Rep. 844. 
270 Comm. v. Meaney, 151 Mass. 55, 23 
N. E. Rep. 730; Comm. v. Gay, (Mass.) 
26 N. E. Rep. 571. 
271 Comm. v. Hersey, 144 Mass. 297,11 
N. E. Rep. 116. 
INTOX.LIQ.-40 
625 § 528 
LAW' OF INTOXICATING LIQUORS. 
[Ch. 20 
used "a building on the north side of Main street next door west from 
Chamber's store, in Agency city," as a place for the keeping of 
intoxicating liquors, and the evidence showed that he kept such liq- 
uors at a place "next door west of Chamberlain's store," in the same 
town, it was held that the variance was not fatal.272 
§ 528. Evidence on Prosecution of "Club." 
In some of the states, in consequence of the abuses which followed 
the decision of the courts that bona fide social clubs were not required 
to take out a license to protect the sale or dispensing of liquors to 
their members, as a convenience incidental to the purposes of their 
organization, it has been found necessary to enact laws against asso- 
ciations formed for the very object of illicit keeping and sale of 
liquors, and fraudulently disguising their operations under the pre- 
tense of an organization for social or other purposes.273 On an indict- 
ment for the maintenance of such a concern, it need not be shown 
that the sole purpose of the club was to sell and distribute liquors; 
it is enough that that was one of the purposes for which the place 
was kept.274 The main fact, essential to bring the case within the 
statute, is the fact that the "club" was but a fraudulent device to 
cover the unlicensed sale of liquor. This fact may, and in the nature 
of the case usually must, be established by circumstantial evidence. 
It may be shown that no principle of selection was exercised in rela- 
tion to its membership, that any person could become a member by 
paying a fee or buying tickets, that persons not members were sup- 
plied with liquor, that any social, literary, or other features attempted 
to be given to the association were but a sham, that its premises con- 
tained the ordinary fittings of a bar-room, that one person was in 
charge and apparently the proprietor of the place, and so on.276 ' And 
books and papers, relating to the business carried on in the rooms of 
the club, found on the premises where the accused could have seen 
272 State v. Verden, 24 Iowa, 126. 
273 See, supra, § 142. 
274 Comm. v. Jacobs, (Mass.) 25 N. E. 
Rep. 463. 
275 Comm. v. Ryan, (Mass. ) 25 N. E. 
Rep. 465; Comm. v. Jacobs, (Mass.) Id. 
463. Supra, § 142. 
626 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 530 
them, are admissible evidence against him, it being shown that he 
had charge of the rooms and the business done there.276 
§ 529. Proof of Sale of Liquor to be Drunk on Premises. 
On the trial of an indictment for illegally selling liquor to be drunk 
on the premises where sold, it is not necessary to prove that the 
liquor alleged to have been sold was in fact drunk on the premises, 
although the indictment so alleges.277 But where, as in some states, 
the law applies only to sales made for the purpose of drinking in or 
about the seller's house, the place of sale is material to the offense. 
Thus, under such a statute, a conviction cannot be had where the 
evidence shows that the sales were not made at or near defendant's 
house, but from a wagon standing on the highway just outside the 
beaten track.278 Where the law forbids the sale of liquor at "a place 
of public resort," and a defendant, indicted thereunder, contends 
that the place where the liquor was drunk was his private dwelling, 
and not such a place as contemplated by the statute, a witness may 
be allowed to state that he went to defendant's house to get wine, 
because he expected to be able to get it there, having heard that other 
people got it there.279 
§ 530. Proof of Illegal Transportation of Liquors. 
On an indictment, under the statute, for transporting liquors from 
place to place, having reasonable cause to believe that they were 
intended for sale in violation of law, it is competent to show that the 
defendant, on several occasions within a short time, had received 
other considerable quantities of liquor, at the same railroad station, 
for transportation by him.280 And on the issue whether he had rea- 
276 Comm. v. Jacobs, (Mass.) 25 N. E. 
Rep. 463. 
277 Comm. v. Luddy, 143 Mass. 563,10 
N. E. Rep. 448. See Gulick v. State, 
50 N. J. Law. 468, 14 Atl. Rep. 751. 
278 Schilling v. State, 116 Ind. 200, 18 
N. E. Rep. 682. See, also, Compher v. 
State, 18 Ind. 447. 
279 State v. Spaulding, 61 Vt. 505, 17 
Atl. Rep. 844. 
280 Comm. v. Commeskey, 13 Allen, 
585. See, also, Comm. v. McConnell, 
11 Gray, 204; Comm. v. Locke, 114 
Mass. 288. 
627 § 531 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
sonable cause to believe that liquor conveyed by him to a house was 
intended for illegal sale, in the absence of proof of change in the use 
of the house, evidence is admissible that four months previously the 
place was used for selling intoxicating liquors.281 But the defend- 
ant cannot introduce evidence that the person to whom the liquors 
were conveyed had been tried on a charge of keeping the same liquors 
with intent to sell, and had been acquitted.282 
§ 531. Proof of Illegal Sale to Minor. 
It has been stated generally that the burden of proving that those 
to whom liquor was sold were persons to whom, under his license, 
the defendant, prosecuted for selling, had a right to sell, is on him.283 
But it is probable that, on an indictment for selling to a minor, the 
state should be required to adduce at least presumptive evidence of 
the fact of the minority of the purchaser. This fact may be proved 
in any of the ordinary methods. Thus, the minor himself may tes- 
tify as to his age from an entry of his birth in the family bible, with- 
out producing it, or from any other source of information.284 Evi- 
dence that the purchaser of the liquor was nineteen in the year pre- 
ceding that of the trial, is sufficient to show that he was a minor at 
the time of the sale.285 If the defendant seeks to justify under the 
written order or consent of the parent or guardian of the minor, as 
he may do in some states, the burden is upon him to prove this 
defense; it need not be negatived by the evidence for the prosecu- 
tion.286 And if, under the decisions in the particular jurisdiction, he 
is allowed to excuse himself on the ground of an honest mistake as to 
the age of the purchaser, this also is affirmative matter of defense 
which the defendant must prove. And it is not permissible for the 
jury to look at the personal appearance of the alleged minor, who 
has testified as a witness in their presence, and to regard such 
281 Comm. v. Kenney, 115 Mass. 149. 
282 Comm. v. Waters, 11 Gray, 81. 
283 Comm. v. Towle, 138 Mass. 490; 
Comm. v. Barnes, Id. 511. 
284 Edgar v. State, 37 Ark. 219; 
Pounders v. State, Id. 399. 
285 Ehlert v. State, 93 Ind. 76. 
286 Farrall v. State, 32 Ala. 557; Mon- 
roe v. People, 113 Ill. 670; Edgar v. 
State, 37 Ark. 219; Pounders v. State, 
Id. 399; Ridling v. State, 56 Ga. 601. 
628 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 533 
inspection in determining whether or not the defendant acted in good 
faith in selling him the liquor.287 
§ 532. Proof of Sale to Intoxicated Person. 
On a prosecution for selling liquor to a person in a state of intox- 
ication, the fact of the intoxication is to be proved by the prosecution. 
Whether or not a person was drunk at a given time, is a question 
on which any witness, who is competent to judge, may give his 
opinion.288 In a case where it appeared that a person came into 
the defendant's saloon, called for whisky, drank it, and paid for it, 
and that before that, on the same evening, he had been seen on the 
street drunk, it was held that there was sufficient evidence to sup- 
port a finding that such person was in a state of intoxication at the 
time of the sale to him by the defendant.289 But, in such a case, the 
jury must consider the question whether he had regained soberness 
in the interval.290 It is not necessary to produce further evidence 
to show that the defendant was aware of the intoxicated condition of 
the purchaser. On proof that the latter was drunk, it will be pre- 
sumed that the defendant knew that fact.291 
§ 533. Proof of Sale to Habitual Drunkard. 
To convict for a violation of a statute prohibiting the sale of liq- 
uor to persons of intemperate habits, the indictment must allege and 
the proof must show that the person to whom the sale was made 
was, at about the date of the sale, a person having such habits.292 
But it is not essential to show that the party is constantly or usually 
intoxicated, but it is sufficient to prove that he has been frequently 
so, and has thereby acquired an involuntary tendency to become 
287 Stephenson v. State, 28 Ind. 272; 
Ihinger v. State, 53 Ind. 251; Robinius 
v. State. 63 Ind. 235. 
288 1 Wharton, Ev. § 451, citing State 
v. Pike, 49 N. H. 399; Gahagan v. R. 
Co., 1 Allen, 187; People v. Eastwood, 
14 N. Y. 562; Piers v. State, 53 Ga. 365; 
Stanley v. State, 26 Ala. 26. 
^Kammann v. People, 124 Ill. 481, 
16 N. E. Rep. 661. 
290 Kammann v. People, 26 Ill. App. 
48. 
291 Brow v. State, 103 Ind. 133, 2 N. 
E. Rep. 296. 
202 Zeizer v. State, 47 Ind. 129. 
629 § 534 
LAW OF INTOXICATING LIQUORS. 
[Ch. 20 
intoxicated.298 Evidence that the party had been drunk from three 
to five times within the two years preceding the trial has been held 
sufficient to authorize the jury to find that he was in the habit of 
becoming intoxicated.294 But clearly it cannot be stated, as a matter 
of law, that any particular number of instances of intoxication is 
necessary, or sufficient, to constitute the habit.295 The person to 
whom the sale was made is himself a competent witness to testify as 
to his intemperate habits.296 As to the other essential fact in prose- 
cutions of this sort, whether the defendant had knowledge of the 
intemperate habits of the purchaser, this must be left to the decis- 
ion of the jury upon the evidence; a charge assuming that such 
knowledge was brought home to him would be erroneous.297 While 
neither the sale of the liquor nor the intemperate habits of the per- 
son to whom the sale was made can be proved by general reputation 
or general notoriety in the community, yet such evidence is admissi- 
ble to prove defendant's knowledge of the habits of such person, on 
the theory that what is generally known in the community is evi- 
dence to be weighed by the jury in determining whether it is known 
to the accused; but such evidence is not conclusive.298 All persons 
having sufficient knowledge of the person's general reputation are 
competent to testify as to whether he was generally known as a man 
of intemperate habits.299 And, to prove the seller's knowledge, the 
prosecution may show that the buyer was accustomed to drink, fre- 
quently and openly, to a state of intoxication, in the town in which 
the defendant lived, of liquor there obtained from the defendant and 
others.300 
§ 534. Evidence of Violation of Local Option Law. 
When a conviction is sought for a violation of the local option law, 
the authorities generally hold that it must be alleged and proved that 
293 Murphy v. People, 90 Ill. 59; 
Mapes v. People, 69 Ill. 523. And see, 
supra, § 425. 
294 Murphy v. People, 90 Ill. 59. 
295 Gallagher v. People, 120 Ill. 179, 11 
N. E. Rep. 335. 
296 Tatum v. State, 63 Ala. 147. 
297 Elam v. State, 25 Ala. 53. 
298 Tatum v. State, 63 Ala. 147, Stall 
ings v. State, 33 Ala. 425. Compare 
Stanley v. State, 26 Ala. 26. 
299 Tatum v. State, 63 Ala. 147. 
800 Atkins v. State, 60 Ala. 45. 
630 Ch. 20] 
EVIDENCE IN PROSECUTIONS UNDER LIQUOR LAWS. 
§ 534 
the provisions of that law had been put in force in the particular 
county or district at the time of the commission of the alleged 
offense.301 And in Texas, it is held to be essential to such conviction 
that it should appear that the forms of law were complied with in 
holding the election;302 and the state must establish the fact that the 
order of the commissioners' court for the holding of the election was 
based upon a legal petition, and this proof must appear of record on 
appeal.303 But in some other states, the doctrine prevails that the 
court may take judicial notice of the adoption of the local option law, 
and consequently that it is not necessary for the prosecution to prove 
this fact, nor to show, in the first place, that the requisite formalities 
were observed.304 Where the state has a good indictment, but no 
proof, under the general law, and a bad indictment, but some proof, 
under the local option law, there can be no conviction.305 
301 Bryant v. State, 65 Miss. 435, 4 
South. Rep. 343; Butler v. State, 25 Fla. 
347, 6 South. Rep. 67; Donaldson v. 
State, 15 Tex. App. 25. Supra, § 102. 
302 McMillan v. State, 18 Tex. App. 
375. 
^Carnes v. State, 23 Tex. App. 449, 
5 S. W. Rep. 133. 
304 Rauch v. Comm., 78 Pa. St. 490; 
Combs v. State, 81 Ga. 780, 8 8. E. Rep. 
318; Young v. Comm., 14 Bush, 161. 
Supra, § 102. 
305 Norton v. State, 65 Miss. 297, 3 
South. Rep. 665. 
631 § 535 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
CHAPTER XXI. 
PROCEDURE IN LIQUOR CASES. 
§ 535. Jurisdiction. 
536. Limitation of Actions. 
537. Effect of Repeal of Statute. 
538. Form of Proceeding. 
539. Who may Institute Proceedings. 
540. Preliminary Proceedings. 
541. Warrant or Summons. 
542. Defendant's Plea. 
543. Specification of Offenses. 
544. Elect on between Offenses. 
545. Trial by Jury. 
546. Competency of Jurors. 
547. Verdict. 
548. Sentence and Punishment. 
549. Separate Sentences on Separate Counts. 
550. Sentencing Joint Offenders. 
551. Increased Penalty for Second Offense. 
552. Informer's Share of Penalty. 
553. Double Penalties. 
554. Lien of Fine on Homestead. 
555. Bar by Former Conviction or Acquittal. 
§ 535. Jurisdiction. 
In some of the states, the jurisdiction for the trial of offenses 
against the liquor laws is vested in the police courts, justices of the 
peace, or other inferior magistrates; in others, it is conferred upon 
the county, district, or superior courts. When the statute expressly 
points out the form of proceeding to be followed or the tribunal to 
exercise jurisdiction, its provisions are exclusive, and no other court 
can assume jurisdiction and hold a legal trial. For instance, where 
a statute provides that one selling liquor within a certain territory 
shall be punished "upon conviction thereof before any acting justice 
of the peace,''the superior court of that county does not have original 
jurisdiction of the offense.1 But if the assignment of jurisdiction is 
1 State v. Patterson, (N. Car.) 4 S. E. Rep. 45. See, also, Comm. v. Murphy, 11 
Gray, 53. 
632 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 535 
not made in the statute creating the offense, it must then be deter- 
mined by reference to the general laws distributing the criminal juris- 
diction among the courts composing the system of tribunals in the 
particular state. And this sometimes gives rise to questions of con- 
siderable difficulty. Thus, in Rhode Island, the district courts have 
jurisdiction of all offenses "punishable by fine not exceeding twenty 
dollars or by imprisonment not exceeding three months." The stat- 
ute prohibiting the unlawful selling of liquor prescribes, as a punish- 
ment, a fine of twenty dollars and imprisonment for ten days. It is 
held that the district courts have jurisdiction.2 In Michigan, pro- 
ceedings for a violation of the liquor lawT are not criminal proceed- 
ings, and the statutory provision as to the general criminal jurisdic- 
tion of justices does not operate as a limit to their jurisdiction as 
expressly given under the liquor law; and the jurisdiction conferred 
is within constitutional limits.3 The court within the territorial 
jurisdiction of which an illegal sale of liquor is made has jurisdiction 
of the offense, in accordance with well settled general principles, 
although the residence of the defendant may be beyond that district.4 
In Iowa, it is held that the provision of the code, that when a public 
offense is committed on the boundary of two or more counties, or 
within five hundred yards thereof, the jurisdiction is in either of the 
counties, applies to a criminal prosecution for keeping a liquor nui- 
sance.5 And, under the same statute, where orders for intoxicating 
liquor, subject to approval, were taken in one county, and approved 
in another, and then delivered in the first county, jurisdiction of the 
offense is in either county.6 Various other decisions, relative to the 
jurisdiction under the liquor laws, in the several states, will be found 
collected in the margin.7 
2 State v. Nolan, 15 R. I. 529, 10 Atl. 
Rep. 481. And see Comm. v. Carr, 11 
Gray, 463. 
3 Matter of Buddington, 29 Mich. 472. 
4Comm. v. Hersey, (Mass.) 9 N. E. 
Rep. 837. 
5 State v. Rockwell, (Iowa,) 48 N. W. 
Rep. 721. 
6 State v. Kriechbaum, (Iowa,) 47 N. 
W. Rep. 872. 
7 See Osborn v. Sargent, 23 Me. 527; 
State v. Stinson, 17 Me. 154; State v. 
Peck, 32 Vt. 172; Morrill v. Thurston, 
46 Vt. 732; Hale v. State, 15 Conn. 242; 
Comm. v. Murray, 144 Mass. 170, 10 N. 
E. Rep. 802; Comm. v. Carney, (Mass.) 
27 N. E. Rep. 9; Durr v. Comm., (Pa. 
Sup.) 12 Atl. Rep. 507; Eckhart v. State, 
5 W. Va. 515; State v. Hollingsworth, 
100 N. Car. 535, 6 S. E. Rep. 417; Ham- 
633 § 537 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
§ 536. Limitation, of Actions. 
The period within which prosecutions for the violation of the liq- 
uor laws will be limited by law, if not prescribed in the statute creat- 
ing the offense, must be sought in the general law relating to the time 
of instituting criminal proceedings. Thus, in Florida, a statute pro- 
vides that all offenses not punishable by death shall be prosecuted 
within two years. It is held that this applies to the offense of sell- 
ing spirituous liquors without a license.8 But in some cases, the same 
act may, really or apparently, amount to a violation of two statutes, 
having different periods of limitation. And in that case, the question 
must be determined by reference to the law under which a conviction 
is sought. For instance, in one state, it is said that a sale of liquor 
on Sunday, in violation of the statute in that behalf, is not merely a 
"desecration of the Sabbath," for which a prosecution must be com- 
menced within six months after the offense; a prosecution for such 
unlawful sale is not barred until after the expiration of two years.9 
In New Hampshire, an indictment for selling liquors without license 
is not barred by the statute limiting prosecutions on penal statutes.10 
§ 537. Effect of Repeal of Statute. 
When a later statute repeals a prior liquor law, if it expressly 
reserves rights accrued under the repealed law as to any offenses 
committed against such law, or as to any act done or punishment 
incurred thereunder, the repeal will not affect the right to prosecute 
for penalties incurred under the earlier law; but if the repealing act 
contains no provision saving prosecutions pending at the time of its 
passage, a judgment rendered in such an action, for a violation of 
the previous law, is without foundation, even if rendered on a plea 
ilton v. Carthage, 24 Ill. 22; State v. 
Arlen, 71 Iowa, 216, 32 N. W. Rep. 267; 
People v. Schottey, 66 Mich. 708, 33 N. 
W. Rep. 810; People v. Haas, 79 Mich. 
449, 44 N. W. Rep. 928; Boldt v. State, 
72 Wis. 7, 38 N. W. Rep. 177; State v. 
Bach, 36 Minn. 234, 30 N. W. Rep. 764. 
8 Frese v. State, 23 Fla. 267, 2 South. 
Rep. 1. And see Patton v. State, 80 
Ga. 714, 6 S. E. Rep. 273; State v. Pfef- 
ferle, 36 Kans. 90, 12 Pac. Rep. 406. 
9Shepler v. State, 114 Ind. 194, 16 N. 
E. Rep. 521. 
10 State v. Rundlett, 33 N. H. 70. 
634 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 538 
of guilty.11 But if the repealing act provides that its terms shall not 
take effect until a certain future date, the former law remains in 
force until that date; and therefore a prosecution under the previous 
law, begun before that date, though after the passage of the repeal- 
ing act, is well brought.12 
§ 538. Form of Proceeding. 
Whatever form of proceeding, principal or collateral, the statute 
may prescribe for the prosecution of offenses against the liquor laws 
must be exactly followed, or the judgment or sentence will have no 
legal foundation. To illustrate,-where the law provides that "when- 
ever a default shall be had of any recognizance arising under this act, 
scire facias shall be issued," it is irregular to sue on such a recogni- 
zance in an action of contract.13 In some of the states, the penalties 
imposed upon those who violate the liquor laws, are to be recovered 
by a civil action; as, by a suit for the collection of the prescribed 
fine,14 or by a proceeding in the civil courts, founded on application 
or remonstrance, for the revocation of the offender's license.15 In 
others, the proceedings are had before a justice of the peace or a 
police court, and are summary in their character. But in most of 
the states, infractions of the liquor laws are regarded as crimes of 
such a grade that they are to be prosecuted by indictment or pre- 
sentment of a grand jury.16 Even where the act provides that the 
offender "shall forfeit and pay for every such offense" a designated 
sum of money, it is held that he may be punished by indictment.17 
And although the unlicensed sale of liquors may not be among the 
offenses specifically declared to be misdemeanors, it is still a crime 
11 Whitehurst v. State, 43 Ind. 473; 
Mullinix v. People, 76 Ill. 211; Boone v. 
State, 12 Tex. App. 184; Teague v. State, 
39 Miss. 516. See, also, State v. Rey- 
elts, 74 Iowa, 499, 38 N. W. Rep. 377. 
12 Leyner v. State, 8 Ind. 490. 
13 Comm. v. Thompson, 2 Gray, 82. 
14 McCracken v. State, 71 Md. 150, 17 
Atl. Rep. 932. See State v. Koehler, 6 
Iowa, 398; State v. Shawbeck, 7 Iowa, 
322. 
15 Downs v. State, 19 Md. 571. 
16 State v. Hollin, 12 La. Ann. 677; 
Tefft v. Comm., 8 Leigh, 721; Haines v. 
State, 7 Tex. App. 30; Harper v. State, 
7 Ohio St. 73; State v. Schilling, 14 
Iowa, 455; State v. Kobe, 26 Minn. 148, 
1 N. W. Rep. 1054; People v. Hart, 1 
Mich. 467. 
17 State v. Sinnot, 15 Nebr. 472, 19 N. 
W. Rep. 613. 
635 § 539 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
punishable by indictment.18 . In Tennessee, it is held that the grand 
jury may make a legal presentment upon the information of wit- 
nesses, brought before them upon subpoena issued at their instance.19 
§ 539. Who may Institute Proceedings. 
In some jurisdictions, prosecutions for violations of the liquor law 
are required to be conducted in the name of the state.20 In some 
other states, the law provides for the institution of proceedings by cer- 
tain officials. Such a provision, however, is not necessarily exclusive 
of the right of all others to set the law in motion against the offender. 
Thus, in Massachusetts, it is enacted that "the mayor and aidermen 
of cities, and the selectmen of towns, shall prosecute to final judg- 
ment all violations" of the acts relating to offenses against the liquor 
laws. But it is held that this is merely directory, and does not 
exclude the right of any other citizen to enter the complaint.21 So, 
where the statute punishing the maintenance of a liquor nuisance by 
a fine, does not provide that the fine shall be paid to the town where 
the offense was committed, the complaint need not necessarily be 
made by the town treasurer, but is good if presented by a private indi- 
vidual.22 In New York, it is held that the duties of the board of excise, 
appointed to regulate the liquor traffic, require such discretion, and 
involve such a degree of trust and confidence, that they cannot be 
delegated to a third person; and hence an attorney cannot be clothed 
with a general authority to bring such suits for violations of the law 
as he may see fit.23 Where, by statute, the mayor and aidermen are 
required to institute proceedings, on being informed of the commis- 
sion of an offense and being furnished with proof, it is held that their 
being furnished with proof is not a preliminary necessary to be shown 
in evidence as the basis of the authority of the prosecutor to bring 
the suit.24 
18 People v. Charbineau, 115 N. Y. 433, 
22 N. E. Rep. 271. 
19 Glenn v. State, 1 Swan, 19. 
20 Rogers v. Alexander, 2 Greene, 
(Iowa.) 443. 
21 Comm. v. Murphy, 147 Mass. 577, 
18 N. E. Rep. 418. 
22Comm. v. Gay, (Mass.) 26 N. E. Rep. 
852. 
23 Board of Excise v. Sackrider, 35 N. 
Y. 154. 
24 Portland v. Rolfe, 37 Me. 400. 
636 Ch. 21] 
§ 541 
PROCEDURE IN LIQUOR CASES. 
§ 540. Preliminary Proceedings. 
When the proceedings before the inferior court or committing 
magistrate are required to be based on or supported by an affidavit 
of the prosecutor, the affidavit should be sufficiently full and explicit 
to charge the commission of an offense, though it will in general be 
held good if it contains all the averments which the statute pre- 
scribes.25 When the record, on appeal, shows that the affidavit on 
which the prosecution was based was sworn to, the omission of the 
magistrate's seal to the jurat is not ground for reversal.26 If the 
statute provides that the magistrate shall, "if he finds the complaint 
to be true," recognize the defendant to appear, it need not be 
expressly stated in the record that he found the complaint to be 
true.27 The recognizance must be taken to the person whom the law 
designates forthat purpose. If taken to the treasurer of the county, 
when the law intends that it shall be taken to the state treasurer, no 
action can be maintained upon it.28 Under the laws against the 
adulteration of liquors, requiring their inspection by an officer duly 
appointed for that purpose, the appointment of such inspector is a 
necessary preliminary to any possible criminal proceedings, and 
before such appointment, no violation of those laws will found a valid 
prosecution.29 
§ 541. Warrant or Summons. 
The ordinary rules relative to the sufficiency of criminal process, 
and the time and manner of objecting thereto, will be found appli- 
cable in proceedings under the liquor laws. Thus, if the defendant 
enters into a recognizance for his appearance at court, or if he 
appears there and makes his defense, without making any objection, 
he thereby waives any supposed defects or irregularities in the pro- 
26 O'Connor v. State, 45 Ind. 347; Far- 
rell v. State, Id. 371; Hosea v. State, 47 
Ind. 180. 
26Qualter v. State, 120 Ind. 92, 22 N. 
E. Rep. 100. See, also, People v. Haas, 
79 Mich. 449, 44 N. W. Rep. 928. 
27 Scovern v. State, 6 Ohio St. 288. 
28 Chittenden County Treas'r v. Mitch- 
ell, 23 Vt. 131. 
29 Attorney General v. Lawton, 30 
Mich. 386. 
637 § 543 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
cess, or in its issuance, or in the manner of its service, and he can- 
not afterwards, for such reasons, and upon motion, have the process 
quashed or set aside.30 
§ 542. Defendant's Plea. 
In prosecutions under the liquor law, the plea of "not guilty" is 
the general issue, and puts in issue every material fact.31 A special 
plea, when it merely states matters of justification, or such as would 
constitute a defense on the merits, may properly be stricken out, for 
such matters would be admissible in evidence under the general issue.32 
Under the practice in Massachusetts, it is held that a defendant, in 
such a prosecution, cannot be adjudged guilty on a plea of nolo con- 
tendere, unless it appears by the record that the plea was received 
with the consent of the prosecutor.33 But where the first of two 
counts in an indictment charged the defendant with having been a 
common seller of intoxicating liquors during a certain time, and the 
second alleged a single sale within the same time, and the defendant 
pleaded guilty to the second and not guilty to the first count, it was 
held that he might nevertheless be tried and convicted upon the first 
count, and judgment rendered thereon against him, and a nolle pro- 
sequi entered on the second count.34 
§ 543. Specification of Offenses. 
In Vermont, under the practice obtaining in that state, in prose- 
cutions under the liquor law, the accused is entitled to a specification 
of the offenses for which the government claims a conviction.86 But 
the character of this specification, with reference to its extent and 
minuteness, is a matter for the discretion of the trial court, to be 
exercised according to the circumstances of the case.36 And it is in 
30 State v. Langton, 35 Kans. 375, 11 
Pac. Rep. 163; May son v. City of At- 
lanta, 77 Ga. 662. 
31 Plainfield v. Batchelder, 44 Vt. 9. 
32 Trost v. State, 64 Miss. 188,1 South. 
Rep. 49. 
33 Comm. v. Adams, 6 Gray, 359. 
34 Comm. v. Mead, 10 Allen, 396. 
36 State v. Rowe, 43 Vt. 265. 
36 State v. Wooley, 59 Vt. 357, 10 Atl. 
Rep. 84; State v. Bacon, 41 Vt. 526, 98 
Am. Dec. 616. 
638 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 544 
the discretion of the court to allow offenses specified to be proved by 
other witnesses than those named in the specifications.37 
§ 544. Election between Offenses. 
A defendant may be convicted of three or more separate sales of 
liquor on several counts in the same indictment, although the same 
testimony would have convicted him of the offense of being a com- 
mon seller.38 And after a general verdict of guilty on an indictment 
containing a count charging the defendant with being a common 
seller during a certain period, and counts for single sales within the time 
covered by the first count, a nolle prosequi may be entered on all the 
counts except the first, and judgment rendered upon that for the state.39 
But where the indictment charges the defendant with retailing merely, 
he cannot be convicted of keeping a tippling-house, which is a differ- 
ent offense.40 But one indicted for a second or third offense of selling 
liquors may be convicted of a first offense, as the one is necessarily 
included in the other.41 Under an indictment for a single sale of 
liquor, where evidence of more than one offense is introduced, the 
court should, on motion, require the prosecution to elect on which 
offense it will try the defendant.42 Thus, each sale of liquor on a 
forbidden day, although made to the same person, constituting a dis- 
tinct offense, where the indictment contains a single count, and the 
evidence shows two sales, at different times on the same day, the 
prosecution will be required to make an election.43 So, where an 
indictment against a physician for giving fraudulent prescriptions 
37 State v. Smith, 55 Vt. 57. 
38 Comm. v. Tuttle, 12 Cush. 505. 
39 Comm. v. Jenks, 1 Gray, 490. A com- 
mon seller of liquors may be indicted 
and convicted at the same term upon 
two indictments covering successive 
periods of time, the last of which ex- 
pired before the finding of either in- 
dictment. Comm. v. Cain, 14 Gray, 9. 
But a complaint for maintaining a ten- 
ement for the illegal sale of liquors, 
and a separate complaint for unlaw- 
fully selling such liquors, cannot be 
tried together, against the defendant's 
objection, though both charges might 
have been joined in one complaint. 
Comm. v. Bickum, (Mass.) 26 N. E. Rep. 
1003. 
40 Robinson v. Comm., 6 Dana, 287. 
41 State v. Gaffeny, 66 Iowa, 262, 23 
N. W. Rep. 659; State v. Ensley, 10 
Iowa, 149. 
42 Murphy v. State, 9 Lea, 373; Comm, 
v. O'Hanlon, (Mass.) 29 N. E. Rep. 518. 
43Lebkovitz v. State, 113 Ind. 26, 14 
N. E. Rep. 363. 
639 § 545 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
for liquor is in several counts, each of which charges the giving of a 
prescription to a different person, the state maybe compelled to elect 
on which count it will proceed.44 But the fact that defendant, in a 
complaint charging the keeping of a nuisance in a certain "tenement," 
occupied one room in a house, does not require the state to elect in 
which one of the rooms was the tenement.45 The prosecuting attor- 
ney, in making his election, must designate the acts intended to be 
relied on with sufficient definiteness to enable it to be understood.48 
But he may interrogate a witness far enough to identify the particu- 
lar sale to which his testimony would relate, without thereby signify- 
ing an election to prosecute for that particular sale.47 When the law 
provides that the granting of a new trial shall place the parties in 
the same position as if no trial had been had, the prosecution, on 
such new trial, may elect to proceed upon a different sale from that 
on which it elected to rely in the former trial.48 
§ 545. Trial by Jury. 
In some of the states, the doctrine prevails that the constitutional 
provisions in relation to trial by jury have reference to that class of 
criminal offenses usually denominated "high crimes," the punish- 
ment of which affects life, liberty, or reputation, and have no applica- 
tion to those minor offenses which clearly concern the regulation of 
the internal police of the state. Hence the legislature may con- 
stitutionally provide that the minor offenses punishable by fine only, 
or by imprisonment in the local jail for a brief period, and having 
reference to the public police, may be tried upon informal or merely 
oral complaints, or by a jury of six men, or without any jury.49 
But in some other states, either because the constitutional guaranty 
is so expressed as to admit of no exception, or because of the ancient 
44 State v. Farmer, 104 N. Car. 887, 10 
S. E. Rep. 563. 
45 Comm. v. Clynes, 150 Mass. 71, 22 
N. E. Rep. 436. And see Elam v. State, 
26 Ala. 48. 
46 State v. Guettler, 34 Kans. 582, 9 
Pac. Rep. 200. 
47 Hughes v. State, 35 Ala. 351. 
48 State v. Dow, 74 Iowa, 141, 37 N. 
W. Rep. 114. 
49 State v. Conlin, 27 Vt. 318; In re 
Dougherty, Id. 325; State v. Freeman, 
Id. 523; State v. Comstock, Id. 553; 
Floyd v. Comm'rs of Eatonton, 14 Ga. 
354. 
640 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 547 
and established usage in that regard, it is held that a trial by jury is 
claimable as a matter of right in prosecutions undei* the liquor laws.50 
This point was more fully discussed in an earlier section, to which 
the reader is herewith referred.61 
§ 546. Competency of Jurors. 
In a case in Massachusetts, a member of the "law and order 
league" (a voluntary association formed for the enforcement of the 
law against the illegal sale of intoxicating liquors and the prosecu- 
tion of liquor-sellers) was held not competent to sit as a juror upon 
the trial of a complaint charging the defendant with maintaining a 
liquor nuisance, where the complainant was an agent of the league 
and employed by it to carry out its purposes.52 But in another 
state, where the person offered as a juror was a member of an 
organization called the "Good Templars," and he testified that he 
did not understand the object of the organization to be the enforce- 
ment of the liquor law among others, but to promote temperance 
among its members by moral suasion, it was considered that this did 
not show him to be incompetent as a juror.53 And the fact that one, 
as constable, is specially charged with enforcing the liquor law, does 
not disqualify him from acting as a juror on a trial for maintaining 
a liquor nuisance in another precinct.64 
§ 547. Verdict. 
On a indictment charging in one count a sale of liquor to a prohib- 
ited person, and in another a gift, a general verdict of guilty is suffi- 
cient, though based on proof of a single transaction.65 And where, 
on an indictment charging, in two counts, selling liquor to a minor 
60 People v. Baird, 11 Hun, 289; Comm, 
v. Saal, 10 Phila. 496. 
61 Supra, § 62. And see Eilenbecker 
v. District Court, 134 U. S. 31, 10 Sup. 
Ct. Rep. 424; In re Liquors of McSoley, 
15 R. I. 608, 10 Atl. Rep. 659. 
62 Comm. v. Moore, 143 Mass. 136, 9 
N. E. Rep. 25. 
63 State v. Estlinbaum, (Kans.) 27 Pac. 
Rep. 996. 
64 State v. Cosgrove, (R. I.) 16 Atl. 
Rep. 900. 
65 Brugier v. United States, 1 Dak. 5, 
46 N. W. Rep. 502. 
INTOX.LIQ.-41 
641 § 548 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
and selling liquor without license, there is a general verdict of guilty, 
but the court, on motion for a new trial, finds that the second count 
is not sustained, while the first is, and sentences defendant on that 
only, defendant cannot complain that the verdict is broader than was 
warranted by the evidence.66 Where the prosecution is for the 
unlicensed or unauthorized sale of liquors, a special verdict "that the 
sale was made as set forth in the complaint," or "that the defendant 
made the sale as set forth in the complaint," is not sufficient to war- 
rant a judgment against him, because it does not show that the sale 
was unauthorized.67 So where the indictment, for the unlawful 
kee'ping of liquors, alleged, in separate counts, that they were kept 
in defendant's shop, in the back room, and in the premises connected 
with the shop, a verdict of "guilty of having liquor in the back room" 
was held bad.68 Nor is the court authorized to enter a verdict of 
guilty against one indicted for keeping a nuisance consisting of a 
tippling-shop, when three of the jury, upon being polled, refuse to 
concur in such verdict, but answer "guilty of keeping a bar there."59 
Upon an indictment against two for the illegal keeping of intoxicat- 
ing liquors in a tenement "by them used" for such purpose, one may 
be convicted and the other acquitted.60 • 
§ 548. Sentence and. Punishment. 
When the statute specifies the amount of fine, or term of impris- 
onment, to be imposed as a penalty for a violation of the liquor laws, 
the court has no discretion in regard to the punishment, but must 
enter the sentence directed by the statute.61 Thus, where the statute 
66 Jones v. State, 67 Miss. Ill, 7 South. 
Rep. 220. 
67 Comm. v. Dooly, 6 Gray, 360. Com- 
pare Comm. v. Certain Intoxicating 
Liquors, 148 Mass. 124, 19 N. E. Rep. 23. 
88 Weikman v. City Council, 2 Speers, 
371. See State v. Wissenhunst, 98 N. 
Car. 682, 4 S. E. Rep. 533. 
89 State v. Wright, 5 R. I. 287. 
60 Comm. v. Gavin, 148 Mass. 449, 19 
N. E. Rep. 554. 
61 Johnson v. People, Breese, 276; 
Morris v. People, 2 Thomp. & C. 219. 
See People v. Brown, (Mich.) 48 N. W. 
Rep. 158. Where, on an indictment for 
selling liquor on Sunday, under Code 
Or. §1909, which imposes afine of from 
$10 to $25, the defendant pleads guilty, 
he cannot be sentenced under Sess. 
Laws Or. 1889, p. 9, § 3, which fixes the 
penalty at $150. State v. Combs, 19 
Oreg. 295, 24 Pac. Rep. 235. On a trial 
for a violation of the local option law, 
in a county which adopted it before the 
642 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 548 
makes the minimum fine for each unlawful sale $100, a person con- 
victed on seven counts of an indictment for as many sales must be 
fined at least $700, and there is no power in the court to reduce the 
amount.62 In Texas, the minimum fine for pursuing, without a 
license, any occupation taxed by law, is an amount not less than the 
tax so due; by another statute, the taxes on the occupation of a 
liquor-dealer cannot be for less than a year; hence the minimum 
punishment for pursuing the occupation of a liquor-dealer without a 
license is a fine equal to the amount of one year's tax.63 Where one 
factor in the penalty is a county occupation-tax, not fixed by general 
law, but levied by the county commissioners, the amount of such a 
levy is not a matter of judicial knowledge, but should be alleged and 
proved, so that the fine may be assessed within the statutory limits.64 
And a defendant convicted of unlawful selling cannot be discharged 
by the court, with directions that execution for the fine and costs 
issue against his property.66 If the statute does not authorize pun- 
ishment by imprisonment, for offenses against the liquor laws, only 
a fine can be imposed.66 Otherwise, where the law allows a judgment 
of "fine or imprisonment, or both, as the case may require."67 When 
the statute provides that, on conviction for an illegal sale of liquor, 
the offender shall be punished by a fine and imprisonment, and in 
case the fine shall not have been paid when the imprisonment expires, 
he shall be further detained until the fine is fully paid, this contem- 
plates an immediate imprisonment with or without payment of fine; 
and hence a sentence imposing a fine, and imprisonment in default 
of payment, cannot be complained of by the offender, being lighter 
than it might have been.68 Where the statute provides one penalty 
passage of an amending act, it is error 
to charge the penalties prescribed by 
that act. though the offense was com- 
mitted, and the trial had, after its pas- 
sage. Robinson v. State, 26 Tex. App. 
82, 9 S. W. Rep. 61. 
82 State v. Faber, 28 Nebr. 803, 44 N. 
W. Rep. 1137. 
63Davidson v. State, 27 Tex. App. 262, 
11 S. W. Rep. 371. 
64 Spears v. State, 8 Tex. App. 467; 
White v. State, 11 Tex. App. 476; Allen 
v. State, (Tex. App.) 13 S. W. Rep. 998. 
65 State v. Robinson, 17 N. H. 263. 
66 Van Noy v. State, 14 Tex. App. 69; 
Akin v. State, Id. 142; People v. Cowles, 
16 Hun, 577. 
67 People v. Henschel, (Sup.) 12 N. Y. 
Supp. 46. 
68 People v. Rouse, 72 Mich. 59, 40 N. 
W. Rep. 57. See State v. Hicks, 101 N. 
Car. 747, 7 S. E. Rep. 707. 
643 § 548 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
for any person selling liquor on Sunday, and a severer penalty for 
any keeper of a dram-shop selling on that day, under an indictment 
for selling as a keeper of a dram-shop, and proof of a sale, but not 
of defendant's keeping a dram-shop, the lesser penalty may be 
imposed.69 But where the statute provides a lighter punishment, for 
a given sale, for a person who is licensed to sell than for one who is 
not, the fact that the defendant was licensed does not entitle him to 
the lighter punishment, when he sold not for himself, but as agent 
for another who had no license.70 The punishments to be inflicted 
for violations of the liquor laws will of course come within the con- 
stitutional provision that "excessive fines shall not be imposed." In 
this connection it has been ruled that a fine imposed for selling liquor 
without a license, of at least double the amount required for the 
license, is not an excessive punishment.71 Where the measure of the 
penalty is confided to the discretion of the court, regard should be 
had to the gravity of the case at bar, the general terms and policy of 
the statute, and the precedents in the particular jurisdiction. Some 
illustrations of punishments which have been approved on appeal 
may be useful in this place. In Missouri, for a violation of the local 
option law, a fine of $300 and imprisonment for a year has been held 
not excessive.72 In Florida, where the penalty was to be not less than 
double the amount of the license fee, such fee being $300, a fine of 
$900 was held proper.73 In Iowa, a fine of $400 for maintaining a 
liquor nuisance was sustained on appeal.74 In the same state, on a 
plea of guilty to an indictment for keeping and owning liquors with 
intent to sell, a fine of $300 and costs, or, in default of payment, 
imprisonment at hard labor for 102 days, with an order for the 
destruction of the liquors, and a sale of the property used in the 
business, was held a proper sentence.76 So, where the evidence 
shows that defendant had made some fifty or sixty illegal sales of 
69 State v. Heckler, 81 Mo. 417. 
70 Comm. v. Zelt, 138 Pa. St. 615, 21 
Atl. Rep. 7. 
71 Frese v. State, 23 Fla. 267, 2 South. 
Rep. 1. 
72 Ex parte Swann, 96 Mo. 44, 9 S. W. 
Rep. 10. 
*3 Baeumel v. State, (Fla.) 7 South. 
Rep. 371. 
74 State v. Fertig, 70 Iowa, 272, 30 N. 
W. Rep. 633. 
75 State v. Baker, 74 Iowa, 760, 38 N. 
W. Rep. 380. 
644 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 550 
liquor, a fine of $500 is not excessive.78 And the same fine was 
approved as against a druggist who had, for three years, habitually 
sold liquors in violation of the statute.77 
§ 549. Separate Sentences on Separate Counts. 
Under an indictment charging several violations of the liquor law in 
as man}' counts, where the defendant is found guilty on all, a separate 
sentence should be rendered on each count.78 Thus, where a defend- 
ant was convicted on two counts of an indictment for selling liquor 
to an inebriate, the punishment being ten days' imprisonment for 
each offense, it was held to be error to render judgment of imprison- 
ment for twenty days in gross; the imprisonment awarded should be 
for a specified time under each count, the time under the second to 
commence when the first ends.79 But a judgment-"Therefore it is 
considered that the state of Iowa recover of said defendant ten dol- 
lars for the first offense, ten dollars for the second, and ten dollars 
for the third offense named in said indictment, and that he stand 
committed until said fine and costs are paid"-sufficiently complies 
with a statutory requirement of a separate judgment in each instance 
in which a verdict of guilty is found.80 But a fine for two offenses 
in selling spirituous liquors without license, though proved, cannot 
be imposed where only one is charged.81 
§ 550. Sentencing Joint Offenders. 
Two or more persons may be jointly indicted for a violation of the 
liquor law, and in such case, if they are both found guilty, the full 
punishment may be imposed on each.82 The judgment should bo 
several against each for the full penalty.83 In Alabama, however, it 
76 State v. Huff, 76 Iowa, 200, 40 N. 
W. Rep. 720. 
77 State v. Little, 42 Iowa, 51. 
78 State v. Leis, 11 Iowa, 416; Kroer 
v. People, 78 Ill. 294; Fletcher v. Peo- 
ple, 81 Ill. 116. 
79 Mullinix v. People, 76 Ill. 211; 
Johnson v. People, 83 Ill. 431. 
80 Wrocklege v. State, 1 Iowa, 167. 
81 Bridgeford v. Lexington, 7 B. Mon. 
47. * 
82 People v. Sweetser, 1 Dak. 308, 46 
N. W. Rep. 452; Comm. v. Towar, 8 
Mete. (Mass.) 527; Comm. v. Sloan, 4 
Cush. 52; Comm. v. Brown, 12 Gray, 
135. 
83 People v. Walbaum, 1 Dak..308, 46 
645 § 552 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
is said that when two persons are jointly indicted for carrying on the 
business of retailing spirituous liquors without a license, a joint fine 
may be assessed against them, if they acted as a firm in carrying on 
the business, or a separate fine against each, if they acted individ- 
ually.84 
§ 551. Increased Penalty for Second Offense. 
In many of the states, the statutes provide a more severe punish- 
ment to be imposed upon the offender when he is convicted of a 
second offense against the liquor laws. As a rule, however, these 
statutes do not authorize the imposition of the increased penalty for 
a second offense, unless the fact that the crime charged is a second 
offense is alleged in the complaint or indictment.85 And where the 
defendant has excepted to the rulings of the trial court, and the 
exceptions are overruled by the supreme court, records of former 
convictions of the defendant for similar offenses are not available in 
the supreme court to increase the severity of the sentence, unless it 
appears that such records have been presented and proved upon the 
trial in the court below.86 Under a statute prohibiting the selling, 
furnishing, or giving away of intoxicating liquor, a conviction for 
selling is available to increase the penalty on a subsequent convic- 
tion of the same defendant for furnishing.87 
§ 552. Informer's Share of Penalty. 
The constitutional authority of the executive to remit penalties 
imposed for violations of the liquor laws does not extend to the share 
given, by statute, to the informer, and vested in him by the convic- 
tion.88 In New Hampshire, a complainant who causes a prosecution 
for a violation of the liquor law to be instituted and carried on with- 
out any expense to the county or state, is entitled to one-half of the 
N. W. Rep. 452; Comm. v. Harris, 7 
Gratt. 600. 
84 Lemons v. State, 50 Ala. 130. 
88 Garvey v. Comm., 8 Gray, 382; 
Norton v. State, 65 Miss. 297, 3 South. 
Rep. 665. 
86 State v. Haynes, 35 Vt. 570. 
87 State v. Haynes, 36 Vt. 667. 
88 State v. Williams. 1 Nott & M. 26. 
See, also, United States v. Harris, 1 
Abb. (U. S.) 110. 
646 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 554 
fine collected through such prosecution, notwithstanding the fact that 
witnesses summoned by the solicitor, at the expense of the county, 
to testify in other cases, testified also before the grand jury in the 
case upon which the private prosecutor's complaint was founded.89 
§ 553. Double Penalties. 
In a suit by a city, to recover the penalty fixed by ordinance for 
selling liquors contrary to the terms of defendant's license, it is no 
defense that he is liable to the city on his license bond for the same 
act, the ordinance prescribing that the penalties thereby imposed 
might be recovered in an action of debt, or as damages in a suit on 
the bond; the fact that the acts complained of were breaches of the 
bond makes them none the less violations of the ordinance.90 And 
the fact that defendant may be liable to pay damages, at the suit of 
a third person, for injuries resulting from an unlawful sale of liquor, 
will not relieve him from the penalties imposed by law for such sale 
considered as a public offense.91 
§ 554. Lien of Fine on Homestead. 
In Iowa, the code provides that the property occupied and used for 
the sale of liquor, with the consent and knowledge of the owner, shall 
be liable for all fines and costs imposed for violations of the liquor 
law. It is held that this is a "special declaration" within the mean- 
ing of another section of the code, declaring the homestead exempt 
"where there is no special declaration of the statute to the contrary." 
And where the husband owns the homestead, his consent to its use 
for such purpose subjects it to liability. But the wife, to protect her 
homestead right, may intervene in the action against the husband to 
subject the homestead to the lien, and her petition need not allege 
that the husband refuses to assert the exemption.92 
89 Pierce v. Hillsborough Co., 57 N. 
H. 324. 
"Whalin v. Macomb, 76 Ill. 49. 
91 See Mulcahy v. Givens. 115 Ind. 286, 
17 N. E. Rep. 598. 
92 McClure v. Braniff, 75 Iowa, 38, 39 
N. W. Rep. 171. 
647 § 555 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
§ 555. Bar by Former Conviction or Acquittal. 
In order to bar a prosecution for a violation of the liquor laws, it 
is not sufficient for the defendant to show that he has been indicted, 
and either acquitted or convicted, since the date of the offense now 
proved against him. He must prove that the former conviction or 
acquittal was for the same offense now complained of.93 To show the 
identity of the two charges, the test is sometimes proposed, whether 
the same evidence would have supported both indictments. But 
this is not invariably a safe criterion. The true question is, whether 
the two acts charged constitute essentially distinct and independent 
offenses.94 Further, it must be remembered that it is not the find- 
ing of the jury, but the judgment of the court, that interposes the 
bar. That is, a verdict of guilty, in a prosecution for an infraction 
of the liquor laws, upon which no judgment has ever been rendered, 
-as where exceptions are still pending and undetermined,-is no 
bar to a subsequent indictment for the same offense.95 It is also 
necessary that the former judgment should have been legally sus- 
tainable, or at least, such as could not have been set aside on motion. 
For example, on an indictment for the sale of liquor on Sunday, 
defendant offered to show a former trial and acquittal for the same 
offense. The indictment on the former trial alleged that defendant 
"on the 11th day of July, 1886, did unlawfully sell," but did not 
93 State v. Ainsworth, 11 Vt. 91. 
94 State v. Andrews, 27 Mo. 267; State 
v. Blanut, 48 Ark. 34, 2 S. W. Rep. 190. 
A conviction for selling liquor without 
license on a certain day is no bar to a 
subsequent conviction for selling on 
another day, although, through the in- 
tervention of the plea of guilty, there 
was no evidence of the exact time of 
the first sale. State v. Shafer, 20 Kans. 
226. 
95 Comm. v. Fraher, 126 Mass. 265; 
Comm. v. Lahy, 8 Gray, 459. An order 
of a justice for a return to defendant of 
certain liquors seized upon his premises 
a number of days before an indictment 
was found against defendant for keep- 
ing a liquor nuisance, is not an adjudi- 
cation that defendant, at the time the 
indictment was found, did not keep 
liquors for illegal sale. State v. Zim- 
merman, 78 Iowa, 614, 43 N. W. Rep. 
458. It is no defense to a prosecution 
for being a common seller of liquors 
that a nol. pros, was entered as to a 
previous indictment for the same of- 
fense, under an agreement by defend- 
ant to discontinue the sale of liquors, 
although no sales after the entry of the 
nol. pros, are shown. Comm. v. Cutler, 
9 Allen, 486. 
648 Ch. 21] 
PROCEDURE IN LIQUOR CASES. 
§ 555 
charge that said 11th day of July was Sunday. It was held that, as 
the indictment on the former trial did not charge a public offense, 
the evidence was properly excluded.96 With reference to the persons 
who may take advantage of this plea, the doctrine is that all crimes 
are several, though committed by two persons acting jointly or in 
partnership. Hence the conviction of two partners, for selling intox- 
icating liquor, is a conviction of each.97 
In prosecutions under the liquor laws, there are many instances 
in which the same act may constitute either of two distinct offenses, 
according as it is regarded as a violation of one statute or another. 
In such case, a former conviction or acquittal is no bar to a subse- 
quent indictment, founded on the same act, but charging it as a 
violation of a different statutory provision. Thus, a prosecution for 
selling liquor on Sunday is no bar to a subsequent prosecution for the 
sale of the same liquor without a license; for the state, in order to 
convict, must make proof of a different state of facts.98 On the same 
96Shepler v. State, 114 Ind. 194, 16 N. 
E. Rep. 521. 
97 State v. Brown, 49 Vt. 437. 
98 Arrington v. Comm., (Va.) 12 S. E. 
Rep. 224. In this case the learned court 
remarked: "Whether this ruling was 
correct or not depends upon whether 
the offense charged in the former and 
present prosecution is the same; for as 
the defense of former conviction or ac- 
quittal rests upon the principle that no 
man shall be twice put in jeopardy for 
the same offense, the plea, as Black- 
stone says, must be upon a prosecution 
for the same identical act and crime. 
4 Bl. Comm. 336. And in determining 
this question of identity, the test is ' not 
whether the defendant has already 
been tried for the same act, but whether 
he has been put in jeopardy for the 
same offense. A single act may be an 
offense against two statutes, and, if 
each statute requires proof of an addi- 
tional act which the other does not, an 
acquittal or conviction under either 
statute does not exempt the defendant 
from prosecution and punishment un- 
der the other.' Morey v. Com., 108 
Mass. 433; State v. Stewart, 11 Or. 52, 
238, 4 Pac. Rep. 128; State v. Sonner- 
kalb, 2 Nott & McC. 280; State v. Tay- 
lor, 2 Bailey, 49; State v. Horneman, 
16 Kans. 452; State v. Coombs, 32 Me. 
529; Ruble v. State, 51 Ark. 170, 10 S. 
W. Rep. 262; People v. Carty, 77 Cal. 
213, 19 Pac. Rep. 490; Whart. Crim. Pl. 
& Pr. (9th Ed.) 471; 1 Chit. Crim. Law, 
453. According to some of the authori- 
ties, the test is whether the evidence 
required to support a conviction in one 
case would be sufficient in the other; 
or, as Bishop expresses it. the offenses 
are not the same when each indictment 
sets out an offense differing in all its 
elements from that in the other, though 
both relate to one transaction,-a prop- 
osition, he adds, the exact limits of 
which are difficult to define. 1 Bish. 
Crim. Law, (7th Ed.) § 1051. Applying 
this test to the present case, it is clear 
that the former and present prosecu- 
tions are not for the same offense, but 
that each indictment sets out a separate 
and distinct offense. The two indict- 
649 § 555 
LAW OF INTOXICATING LIQUORS. 
[Ch. 21 
principle, a conviction for selling liquor without a license is no bar to 
an indictment for selling the same liquor to a minor." So the offense 
of maintaining a nuisance, by keeping a tenement used for the illegal 
sale of liquor, is a wholly distinct offense from that of the sale of 
such liquor, and a conviction for one is no bar to a conviction for 
the other, although evidence of the same sales of liquor may be relied 
on to prove each.1" And the fact that a person has been convicted 
of keeping a tippling-shop is no bar to an indictment for presuming 
to be a common seller, although both indictments cover the same 
period of time, and are supported by the same acts of illegal sale.101 
So again, a conviction for presuming to be a common seller of liq- 
uors, within a specified period, is no bar to a prosecution for a single 
act of selling within the same period.102 And an acquittal on an 
indictment for maintaining a nuisance, by keeping a tenement for 
the illegal sale and keeping of liquors, is no bar to an indictment for 
keeping liquors with intent to sell, although the same evidence is 
relied on to prove both offenses.103 
ments are under different statutes; the 
penalties prescribed are different; and 
the evidence required to support a con- 
viction in either case is not the same. 
The first was under section 3804 of the 
Code, for selling intoxicating liquors 
on Sunday, and in that case all that was 
incumbent on the commonwealth to 
show was a sale on that day. In the 
present case, the indictment is under 
the statute first above mentioned, and 
sets out an offense, an essential element 
of which is a ' sale of liquor without a 
license;' theobjectof one statute being 
the protection of the morals, peace, and 
good order of the community by pre- 
scribing a penalty for selling liquor on 
the Sabbath day, the object of the other 
being the enforcement of the revenue 
laws by making it a misdemeanor to 
sell liquor without a license. " 
89Ruble v. State, 51 Ark. 170. 10 S. 
W. Rep. 262. 
100 Comm. v. Hogan, 97 Mass. 122; 
Comm. v. Sullivan, 150 Mass. 315, 23 N. 
E. Rep. 47; State v. Lincoln, 50 Vt. 644. 
101 State v. Inness, 53 Me. 536. The 
conviction of a husband for maintain- 
ing a liquor nuisance is no bar to the 
conviction of his wife for being a com- 
mon seller, although the same testimony 
is relied on to prove both offenses. 
Comm. v. Welch, 97 Mass. 593. 
102 State v. Coombs, 32 Me. 529; State 
v. Maher, 35 Me. 225. 
103 Comm. v. McCauley, 105 Mass. 69; 
State v. Jangraw, 61 Vt. 39. 17 Atl. Rep. 
733; State v. Wheeler, (Vt.)20 Atl. Rep. 
601. See, also, State v. Graham, 73 
Iowa, 553, 35 N. W. Rep. 628; State v. 
Brown, 75 Iowa, 768, 39 N. W. Rep. 829. 
650 INDEX. 
[the numbers refer to sections.] 
A. 
ABATEMENT, 
of liquor nuisance, 338-349. 
ACADEMIES, 
sale of liquor near, prohibited, 435. 
indictment for, 476. 
ACCESSARIES, 
in crimes against liquor laws, 378, 330. 
in unlawful sales of liquor, 421, 422. 
ACCOMPLICES, 
in offenses against liquor laws, 378, 380. 
ACQUITTAL, 
when a bar to subsequent prosecution, 555. 
ACTION, 
for wrongful refusal to issue license, 177. 
for collection of license fees, 185. 
to recover back excessive or illegal license fee, 187. 
on bond of licensed liquor-dealer, 201-203. 
for price of liquor, defense of adulteration, 240. 
for wrongful taking or conversion of liquor, 244, 245. 
for price of liquors sold, 248-251. 
on note given for liquors, 256-261. 
for recovery of money paid on liquor contract, 263-265. 
for liquors sold in another state, 266-273. 
to avoid lease, for illegal liquor selling by tenant, 275. 
under civil damage laws, 277 et seq. 
for abatement of liquor nuisance, 338-349. 
criminal, under liquor laws, see Crimes; Indictment. 
651 652 
INDEX. 
ADMINISTRATOR, 
liquor license does not pass to, 131. 
when required to take out license, 139. 
ADULTERATION OF LIQUOR, 
statutes prohibiting, 238. 
constitutionality of laws against, 239. 
construction of statutes against, 240. 
oath and bond against, 241. 
inspection of liquors, 241. 
indictment for violation of laws against, 489. 
AFFIDAVIT, 
of applicant for liquor license, 157. 
in support of complaint for search-warrant, 355. 
to institute criminal proceedings, 540. 
"AGAINST THE FORM OF THE STATUTE," 
concluding formula of indictments under liquor laws, 451. 
AGENT, 
selling liquor, protected by principal's license, 132. 
for non-resident principal, 133. 
town agents for sale of liquor, 204, 205. 
taking orders for liquor in another state, 268, 273. 
civil responsibility for sales of liquor by, 298. 
criminal responsibility for sales by, 368-373. 
buying liquor for another, not guilty of "selling," 408. 
minor buying liquor as agent for an adult, 420. 
adult buying liquor as agent for minor, 422. 
evidence to charge principal for sale by, 510. 
AGRICULTURAL FAIRS, 
sale of liquor near, prohibited, 435. 
indictment for, 476. 
AIDING AND ABETTING, 
in offenses against liquor laws, 380. 
in unlawful sales of liquor, 421, 422. 
ALASKA, 
act of congress prohibiting introduction of liquor into, is constitu- 
tional, 35. 
prohibitory liquor law in, 396. 
ALCOHOL, 
when considered an intoxicating liquor, 11. INDEX. 
653 
ALE. 
is an intoxicating liquor, 16. 
judicial notice of properties of, 16- 
proof of intoxicating character of, 521. 
ALLEGATIONS, (see also Indictment; Pleading,) 
in indictments under the liquor laws, 437 et seq. 
must be certain, 437. 
disjunctive, 439. 
conjunctive, 441. 
surplusage, 443. 
negative, 444-449. 
of time, 459, 460. 
of place, 461-463. 
of name of purchaser, 464. 
of kind of liquor, 466-469. 
of quantity, 470-473. 
of price, 474. 
charging particular offenses, 475 et seq. 
AMENDMENT, 
constitutional, adoption of prohibition by, 80, 88. 
of application for license, 161. 
of declaration in civil damage action, 322. 
APOTHECARIES, 
See Druggists. 
APPEAL, 
from order granting or refusing license, 173. 
from revocation of license, 195. 
from condemnation of liquors seized on search-warrant, 365. 
APPLICATION FOR LICENSE, 
form and requisites of, 156. 
giving notice of, 158. 
recommendation of, 159-161. 
qualifications of applicant, 162, 163. 
remonstrances against, 164, 165. 
procedure on, 167-169. 
discretion to grant or refuse, 170-172. 
review of proceedings on, 173-175. 
action for maliciously obstructing, 177. 654 
INDEX. 
APPROPRIATION OF PAYMENTS, 
on account partly for liquor illegally sold, 252. 
ARBITRATION, 
See Award. 
ARREST, 
of person, under search-warrant for liquors, 350, 359. 
without warrant, 363. 
ASSIGNMENT, 
of liquor license, invalid, 130. 
in insolvency, passes debtor's liquors, 139. 
of cause of action under civil damage laws, 281. 
ASSOCIATIONS, 
when required to take out license, 142. 
evidence on indictment of, 528. 
ATTORNEY'S FEES, 
in actions for abatement of liquor nuisance, 348. 
AUTREFOIS CONVICT, 
availability of plea of, 555. 
AWARD, 
including price of liquor illegally sold, 253. 
B. 
BAILEE, 
seizure of liquors in hands of, 353. 
BALLOTS, 
in local option election, form of, 97. 
BAR, 
by former conviction or acquittal, 555. 
BAR-KEEPER, 
criminal liability of employer for acts of, 368-371. 
personal responsibility of, 372, 373. 
selling liquor to intoxicated person, 423. 
evidence to charge master for sale by, 510. 
BAR-ROOM, 
meaning of the term, 22. 
regulation of, by municipal ordinance, 234-236. 
employment of women in, prohibited, 237. INDEX. 
655 
BARTER, 
of liquors, not unlawful when statute prohibits sale, 406. 
BEER, 
whether an intoxicating liquor, 17. 
different kinds of, 17. 
judicial notice of properties of, 17. 
prohibition of manufacture of, 81-87. 
license to brewers of, 141. 
allegation of intoxicating properties of, in indictment, 469. 
proof of, 521. 
"BELL-PUNCH" LAW, 
constitutionality of. 55. 
criminal provisions of, 397. 
BILLS AND NOTES, 
See Notes. 
BITTERS, 
when classed as intoxicants, 9. 
BONA FIDE HOLDER, 
of note given for price of liquor, rights of, 259-261. 
BOND, 
execution of, not equivalent to obtaining license, 121. 
of licensed liquor-dealer, 197-203. 
essential to validity of license, 197. 
form and contents, 198. 
approval and acceptance, 199. 
breach of conditions, 200. 
actions on, 201. 
damages recoverable in suit on, 202. 
liability of sureties, 203. 
of licensed druggist, 207. 
of dealer licensed under municipal ordinance, 229. 
conditioned against adulteration of liquor, 241. 
conditioned to pay judgments under civil damage laws, 296. 
liability of sureties, 297. 
BRANDY, 
judicially known as an intoxicating liquor, 13. 
BRANDY CHERRIES, 
when considered intoxicants, 10. 656 
INDEX. 
BRANDY PEACHES, 
when considered intoxicants, 10. 
BREWERS, 
license to, 141. 
BURDEN OF PROOF, 
on applicant for license, to show qualification, 162. 
to show illegality of sale of liquor, in action for price, 250. 
to show illegality of note given for liquors, 257. 
to show bona fades of holder of note given for liquors, 260. 
burden of proving license, 507. 
to show legality of sale charged as criminal, 511. 
BUYER, 
of liquor illegally sold, commits no crime, 381. 
not an accessary or accomplice, 381. 
agent acting for, not guilty of selling liquor, 408. 
minor acting as agent or messenger for, 420. 
name of, allegation of, in indictment, 464. 
evidence to identify, 517. 
where person is unknown, 518. 
C. 
CAMP-MEETINGS, 
sale of liquor near, prohibited, 435. 
indictment for, 476. 
CANCELLATION OF LICENSES, 
jurisdiction and procedure, 189-196. 
by municipal authorities, 233. 
CARRIERS, 
transporting liquor into prohibition state, 71. 
action against, for loss of liquor in transit, 89. 
seizure of liquor in hands of, under seach-warrant, 353. 
illegally transporting liquor, indictable, 394. 
evidence of transportation, 530. 
CASH, 
license fees must be paid in, 184. 
CAUSE OF ACTION, (See also Action,) 
for wrongful refusal to issue license, 177. 
for collection of license fees, 185. INDEX. 
657 
CAUSE OF ACTION-Continued. 
for recovery back of excessive or illegal license fee, 187. 
on bond of licensed vendor, 200-203. 
under civil damage laws, 304-314. 
CERTAINTY, 
requirement of, in indictments in liquor cases, 437. 
following the words of the statute, 438. 
disjunctive allegations, 439. 
allegations of time, place, quantity, etc., 459-474. 
CERTIORARI, 
to review proceedings on application for license, 174. 
reviewing proceedings for revocation of license, 195. 
CHANCERY, 
proceedings in, for abatement of liquor nuisance, not unconstitutional, 54. 
enjoining liquor prosecution under invalid law, 73. 
will not enjoin grant of license, 175. 
enjoining and abating liquor nuisance, 338-349. 
CHARTERS, 
rights held under, are subject to police power, 28, 84. 
CHATTEL MORTGAGE, 
on intoxicating liquors, validity of, 246. 
CHILDREN, (See also Minors,) 
capacity of, for crimes against liquor laws, 379. 
CHRISTMAS DAY. 
keeping saloon open on, unlawful, 393. 
sales of liquor on, unlawful, 431. 
CHURCHES, 
laws prohibiting sale of liquor near, 40. 
sale of liquor near, as an offense, 435. 
indictment for sale of liquor near, 463, 476. 
CIDER, 
whether an intoxicating liquor, 18. 
sale of, may be prohibited by municipal ordinance, 234. 
proof of intoxicating character of, 521. 
CIRCUMSTANTIAL EVIDENCE, 
admissibility of, in liquor prosecutions, 494. 
finding liquor on premises, 495. 
INTOX.LIQ.-42 658 
INDEX. 
CIRCUMSTANTIAL EVIDENCE-Continued. 
efforts to conceal liquor, 496. 
drunken men about the premises, 497. 
CITIES, 
may require liquor license in addition to state or county license, 124. 
regulation of liquor traffic by, see Municipal Corporations. 
CITIZENS, 
privilege of obtaining liquor license may be confined to, 48. 
of other states, right to sell liquor in original packages, 67-79. 
of other states, illegal discrimination against, 79. 
rights of, not abridged by prohibitory laws, 82. 
indorsing application for license, 159-161. 
instituting action for abatement of liquor nuisance, 341. 
CIVIL DAMAGE LAWS, 
terms of the statutes, 277. 
constitutionality, 56, 278. 
construction of statutes, 279. 
no extra-territorial effect, 280. 
nature and form of action under, 281. 
limitation of actions under, 282. 
what persons are entitled to sue, 283-293, 
wife or widow, 283. 
husband, 284. 
father, 285. 
dependent mother, 286. 
son or daughter, 287. 
employer, 288. 
stranger injured by intoxicated person, 289. 
town or poor district, 290. 
intoxicated person as plaintiff, 291. 
seller cannot recover, 292. 
joinder of plaintiffs, 293. 
what persons liable as defendants, 294-303. 
immediate and remote vendor, 294. 
person not a liquor-seller, 295. 
personal and bonded liability, 296. 
sureties on dealer's bond, 297. 
master liable for acts of servant, 298. 
joint liability, 299. INDEX. 
659 
CIVIL DAMAGE LAWS-Continued. 
plaintiff can have but one satisfaction, 300. 
liability of lessor of premises, 301, 302. 
establishment of lien on premises, 303. 
the cause of action, 304-314. 
elements of right of action, 304. 
illegality of sale, 305. 
injuries to person, 306. 
injuries to property, 307. 
injuries to means of support, 308. 
disgrace and mental suffering, 309. 
death as ground of action, 310. 
intoxication as cause of death, 311. 
proximate and remote causes of injury, 312. 
caring for intoxicated person, 313. 
sale after notice not to sell, 314. 
defenses to civil damage actions, 315-318. 
defenses in general, 315. 
license is no protection, 316. 
contributory negligence, 317. 
concurrence of drinker, 318. 
pleadings in the action, 319-322. 
allegations of complaint, 319. 
negativing contributory negligence, 320. 
correspondence of pleadings and proofs, 321. 
amendment of declaration, 322. 
damages recoverable, 323-326. 
proper elements of damages, 323. 
measure of damages, 324. 
exemplary damages, 325. 
mitigation of damages, 326. 
evidence in civil damage actions, 327-337. 
admissibility of evidence in general, 327. 
competency of husband as witness, 328. 
evidence of antecedent facts, 329. 
evidence confined to injury alleged, 330. 
proof of character of plaintiff, 331. 
proof of sale by defendant, 332. 
proof of intoxication as cause of injury, 333. 
evidence of decedent's expectation of life, 334. 
evidence to charge lessor of premises, 335. 660 
INDEX. 
CIVIL DAMAGE LAWS-Continued. 
evidence on question of exemplary damages, 336. 
weight and sufficiency of evidence, 337. 
CLERK, 
power to grant licenses cannot be delegated to, 155. 
of druggist, sale of liquor by, 213. 
of liquor-dealer, criminal liability for illegal sales by, 368-373. 
evidence to charge master for sale by, 510. 
CLUBS, 
when required to take out license, 142. 
evidence on prosecution of, 528. 
COLLATERAL IMPEACHMENT, 
of liquor license apparently regular, 137. 
not proper means of testing validity of license, 178. 
of judgment for price of liquor illegally sold, 262. 
COLLECTION OF LICENSE FEES, 
rules and methods for, 183-185. 
COLLEGES, 
sale of liquor near, prohibited, 435. 
indictment for, 476. 
COMMERCE. 
state liquor laws as regulations of, 66-79. 
police power of state not to interfere with, 66. 
rights of foreign importer of liquor, 67. 
exemption of imported liquor from state laws, 68. 
the rule in the License Cases, 69. 
interstate commerce and the police power, 70. 
importation from another state, 71. 
the "original package" decision, 72. 
right of interstate importer to sell, 73-75. 
the Wilson law and its effect, 76-78. 
discrimination against other states, 79. 
effect of prohibitory laws, 86. 
COMMON SELLER, 
of liquors, being a, as criminal offense, 385. 
indictment for, 481. 
proof of, 523. 
COMPENSATION, 
to owners of property damaged by adoption of prohibition, 83. INDEX. 
661 
COMPENSATION-Continued. 
on revocation of unexpired license, 188. 
for liquors sold, need not be alleged in indictment, 474. 
COMPETENCY, 
of witnesses in liquor prosecutions, 492. 
of drunkard to testify to his own habits, 533. 
of jurors, on trial under liquor laws, 546. 
COMPLAINT, 
in action under civil damage law, 319, 329. 
amendment of, 322. 
in action for abatement of liquor nuisance, 345. 
for search-warrant for liquors illegally kept, 354. 
verification of, 355. 
description in, of premises to be searched, 357. 
description of liquors to be seized, 358. 
for violation of municipal ordinance, 452. 
CONDITIONS, 
on privilege granted by liquor license, 146. 
imposed by existing laws, 148. 
imposed by subsequent laws, 149. 
restriction as to place of sale, 150. 
sales to particular persons prohibited, 151. 
displaying license, 152. 
screen law, 153. 
CONFISCATION, 
of liquors illegally kept, 53. 
under search-warrant, see Search and Seizure. 
CONFLICT OF LAWS, 
sale of liquor in one state to be delivered in another, 266-273. 
civil damage laws not extra-territorial, 280. 
CONGRESS, 
powers of, over liquor traffic, 35. 
exclusive power to regulate commerce, 66-78. 
enactment of Wilson law, 76. 
revenue acts of, not infringed by state prohibitory law, 87. 
CONJUNCTIVE ALLEGATIONS, 
in indictments under the liquor laws, 441. 
CONSENT, 
of parent or guardian, when excuses sale of liquor to minor, 419. 662 
INDEX. 
CONSTITUTIONAL LAW, 
general theory of the police power, 24-32. 
excise laws are enacted by virtue of police power, 24, 33. 
constitutionality of liquor laws, 33-65. 
power of states to control liquor traffic, 34. 
powers of congress in this regard, 35. 
power of states limited by federal constitution, 36. 
power to prohibit manufacture and sale, 37. 
property in liquors, 38. 
regulation of sale of liquor, 39. 
prohibiting sale in particular places, 40. 
prohibiting sale on particular days, 41. 
prohibiting sale to particular classes of persons, 42. 
power to define intoxicating liquors, 43. 
discrimination against products of other states, 44. 
local option laws, 45. 
license laws, 46-51. 
search and seizure laws, 52- 351. 
confiscation of liquor illegally kept, 53. 
abatement of liquor nuisances, 54, 339. 
taxation of liquor traffic, 55. 
civil damage laws, 56. 
prohibiting recovery for liquor sold, 57. 
criminal provisions, 58. 
power to exact penalties and forfeitures, 59. 
law's relating to rules of evidence, 60. 
laws relating to criminal pleading, 61. 
right of trial by jury, 62. 
measure of punishment, 63. 
conformity of title of act to subject-matter, 64. 
provisions as to enactment of law's, 65. 
state liquor law's as regulations of commerce, 66-79. 
right of foreign importer to sell, 67-70. 
importations from another state, 71. 
"original packages," 72-75. 
constitutionality and effect of Wilson law, 76-78. 
validity of prohibitory laws, 81-87. 
validity of local option laws, 45, 92. 
taxation of liquor traffic, 107-109. 
validity of license laws, 115. 
power to revoke licenses, 189, 190. INDEX. 
663 
CONSTITUTIONAL LAW-Continued. 
delegation of regulative power to municipalities, 217-220. 
ordinances in conflict with constitution, 222. 
power granted to municipality cannot be delegated, 228. 
laws against adulteration of liquor, 239. 
CONSTRUCTION, 
of civil damage statutes, 279. 
CONTEMPT, 
violation of injunction against liquor nuisance, 349. 
CON TIN U ANDO, 
laying time with a, in indictments, 460. 
in charging liquor nuisance, 486. 
evidence of time when laid with a, 514. 
CONTRACTS, 
for liquor, state may lawfully invalidate, 57. 
effect of prohibitory laws on obligation of, 84. 
liquor licenses are not, 127. 
how affected by liquor legislation, 248-276. 
no recovery on illegal liquor contract, 248-250. 
entire and divisible accounts, 251. 
appropriation of payments on account partly illegal, 252. 
recovery on, by award, 253. 
gh ing credit for liquor sold, 255. 
notes founded on liquor consideration, 256-261. 
money paid on illegal contract, recovery of, 263-265. 
executory contract may be repudiated, 264. 
validity of sales made in another state, 266-272. 
contracts against policy of liquor laws, 274. 
avoidance of leases, 275. 
who may take advantage of illegality, 276. 
CONTRIBUTORY NEGLIGENCE, 
as defense to action under civil damage laws, 317. 
concurrence of intoxicated person, 318. 
CORDIALS, 
when considered intoxicating liquors, 8. 
CORPORATIONS, 
subject to police power of state, 28, 84. 
COUNTS, 
joinder of, in indictments in liquor cases, 442. 664 
index. 
COUNTS-Continued. 
separate, conviction on, requires separate sentences, 549. 
COUNTY, 
may require liquor license in addition to city license, 124. 
regulation of liquor traffic by, see Municipal Corporations. 
CREDIT, 
for liquors sold, laws forbidding, 255. 
sale of liquor on credit, when an offense, 404 
CRIMES, 
infractions of liquor laws may be made crimes, 58. 
increased penalty for second offense, 58. 
release of penalty by repeal of local option law, 106. 
not condoned by subsequent grant of license, 122. 
corrupt grant or refusal of license, 176. 
selling adulterated liquor, 238-241. 
larceny of liquors, 243. 
soliciting orders for liquors, contrary to statute, 273. 
criminal responsibility under liquor laws, 368-382. 
master and servant, 368-373. 
husband and wife, 374-376. 
partners, 377. 
joint liability, 378. 
infants, 379. 
aiders and abetters, 380. 
purchaser not guilty, 381. 
owner or lessor of premises, 382. 
crimes and offenses against liquor laws, 383-401. 
grade of offenses, 383. 
being a common seller, 385. 
pursuing the business of selling liquor, 386. 
unlawful keeping of liquors, 387. 
maintaining liquor nuisance, 388. 
keeping place lor sale of liquors, 389. 
keeping disorderly house, 390. 
furnishing liquor in theatres, 391. 
selling liquor to be drunk on premises, 392. 
keeping open on prohibited days, 393. 
illegal transportation of liquors, 394. 
introducing liquor into Indian country, 395. 
importing liquor into Alaska, 396. INDEX. 
665 
CRIMES-Continued. 
"bell-punch" law, 397. 
employing women in saloons, 398. 
manufacture of liquor, 399. 
being drunk in a public place, 400. 
distinct offenses in one act, 401. 
illegal sales of liquor as criminal offenses, 402-435. 
the offense statutory, 402. 
what constitutes a sale, 403-408. 
sales without license, 409-413. 
sales in prohibited quantities, 414. 
sales to minors, 415-422. 
sales to intoxicated persons, 423. 
sales to habitual drunkards, 424-426. 
sales to Indians, 427. 
sales on Sunday, 428, 429. 
sales on election-days, 430. 
sales on public holidays, 431. 
sales after lawful hours, 432. 
sales in prohibited places, 433. 
sales out of territory covered by license, 434. 
sales near churches, schools, fairs, etc., 435. 
under liquor laws, indictment for, see Indictment. 
CRIMINAL PLEADING, 
See Indictment. 
D. 
DAMAGES, 
in actions under civil damage laws, 323-326. 
proper elements of, 323. 
measure of, 324. 
exemplary damages, 325. 
reduction or mitigation of, 326. 
evidence on question of, 336. 
DEALER, 
in liquors, who is a, 23. 
in liquors, taxation of, 107-113. 
licensing of, 114 et seq. 
bond of, 197-203. 
punishable for selling adulterated liquor, 238-241. 
liability of, under civil damage laws, 277 et seq. 666 
INDEX. 
DEALER-Continued. 
criminal liability for arts of servant or agmt, 368-373. 
evidence of being a, 524. 
DEATH, 
as ground of action under civil damage laws, 310. 
intoxication as cause of, 311. 
DECLARATION, 
in action under civil damage law, 319, 320. 
amendment of, 322. 
in action for abatement of liquor nuisance, 345. 
DEFENSES, 
to actions under civil damage laws, 315-318. 
defenses in general, 315. 
license is no protection, 316. 
contributory negligence, 317. 
concurrence of intoxicated person, 318. 
ignorance or mistake of fact as defense to indictment for unlawful sale, 
416-418, 423, 426. 
negative allegations as to. in indictment, 444. 
burden of proving, is on defendant, 511. 
DEFINITIONS, 
"bar-room," 22. 
"brandy cherries," 10. 
civil damage laws, 56. 
"distilled liquors," 4. 
"drunkard," 425. 
"habitual drunkard," 425. 
"intemperate habits," 425. 
"intoxicating liquors," 2. 
"intoxication," 423. 
"license," 117. 
"liquor/' 7. 
local option laws, 45. 
"malt liquors," 6. 
"original packages," 75. 
"police power," 24. 
"prohibition," 80. 
"retail," 23. 
"saloon," 21. 
"spirituous liquors," 3. INDEX. 
667 
DEFINITIONS-Contin tied. 
"tavern," 19. 
"tippling-house, " 20. 
"vinous liquors," 5. 
"wholesale," 23. 
DELEGATION. 
of power to grant licenses, unlawful, 155, 228. 
of regulative police power to municipality, 217-220. 
DESCRIPTION, 
in search-warrant, of place and property, 357, 358. 
of liquors sold, in indictment, 466. 
DEVICES, 
to evade laws against liquor-selling, 405. 
allegation of, in indictment, 456. 
DISCRETION, 
in granting or refusing licenses, 170, 171. 
not controlled by mandamus, 172. 
in approving licensee's bond, 199. 
DISCRIMINATION, 
against products of other states, illegal. 44, 79. 
among persons subject to liquor tax, 109. 
in rates for licenses, 232. 
DISJUNCTIVE ALLEGATIONS, 
in indictments in liquor cases, 439. 
DISORDERLY HOUSE, 
keeping liquor-shop as a, 390. 
evidence of keeping, 526. 
DISTILLED LIQUOR, 
meaning of the term, 4. 
manufacture of, when a criminal offense, 399. 
DRAM-SHOP, 
meaning of the term, 22. 
keeper of, must be licensed, 139. 
regulation of, by municipal ordinance, 234, 235. 
hours of closing, 236. 
employment of women, 237, 398. 
keeping unlawful, as a criminal offense, 389. 
keeping open on prohibited days, 393, 428-431. 668 
INDEX. 
DRAM-SHOP-Continued. 
sale of liquor after lawful hours, 432. 
evidence of keeping a, 526. 
"DRINK, " 
not a proper designation of quantity, in indictments, 471. 
proof of sale of, sufficiency of, 519. 
DRINKING ON PREMISES, 
sale of liquor for, a misdemeanor, 392. 
indictment for, 475. 
evidence of, 529. 
DRUGGISTS, 
regulation of sale of liquor by, 206-216. 
sale by unlicensed druggists, 206. 
druggists' licenses and bonds, 207. 
druggists' permits in prohibition states, 2)8. 
unlawful sales by, 209. 
question of intention and good faith, 210. 
sale on prescription, 211. 
reports of sales, 212. 
sales by clerks, 213. 
revocation of druggist's license, 214. 
sale by persons who are both druggists and physicians, 216. 
punishable for selling adulterated liquor, 241. 
liable for maintaining liquor nuisance, 342. 
burden of proving legality of sales by, 511. 
DRUGS, 
containing alcohol, when classed as intoxicants, 8. 
DRUMMER, 
soliciting orders for liquor in another state, 268, 273. 
DRUNKARDS, 
validity of laws prohibiting sale of liquor to, 42. 
civil remedy for injuries by, see Civil Damage Laws. 
sales to, as ground for refusing license, 162. 
laws giving civil action for sale to, see Civil Damage Laws. 
criminal liability for selling liquor to, 424. 
what constitutes habitual drunkenness, 425. 
seller's knowledge of purchaser's habits, 426. 
indictment for selling liquor to, 478. 
presence of, on defendant's premises, as evidence, 497. INDEX. 
669 
DRUNKARDS-Continued. 
evidence of sale of liquor to, 533. 
DRUNKENNESS, 
in public places, as a criminal offense, 400. 
what constitutes, 423. 
DUE PROCESS OF LAW, 
prohibitory liquor laws not violative of, 37. 
nor local option laws, 45. 
nor law authorizing equity to abate nuisances, 54. 
effect of prohibitory laws on existing rights and property, 83. 
providing compensation for owners, 83. 
taxation of liquor traffic, 107-111. 
retroactive effect of statutes on existing licenses, 127, 123. 
revocation of licenses, 189. 
DUPLICITY, 
in indictments under the liquor laws, 440. 
use of conjunctive allegations, 441. 
joinder of counts, 442. 
E. 
ELECTIO.N BETWEEN OFFENSES, 
in prosecutions under liquor laws, 544. 
ELECTION-DAYS, 
keeping saloon open on, prohibited, 393. 
sale of liquor on, as an offense, 430. 
what elections included, 430. 
indictment for, 480. 
ELECTIONS, 
under local option law, 93-98. 
petition for, 93. 
notice of, 94. 
order for, 95. 
time of holding, 93. 
conduct of, 97. 
publication of result, 98. 
proof of result of, 102. 
contesting validity of, 103. 
to repeal local option, 106. 670 
INDEX. 
EMINENT DOMAIN, 
distinguished from police power, 32. 
effect of prohibition on existing property is not a "taking" under, 83. 
EMPLOYE, (See also Master and Servant,) 
civil action by master for sale of liquor to, 288. 
criminal liability for unlawful acts of, 368-373. 
employment of women in saloons. 398. 
evidence to charge master for sale by, 510. 
EQUALITY, 
in taxation under the liquor laws, 109. 
EQUITY COURTS, 
may constitutionally be given power to abate liquor nuisances, 54. 
will not enjoin grant of license, 175. 
enjoining and abating liquor nuisances, 338-349. 
EVASION OF STATUTE, 
devices to conceal unlawful sales, 405. 
allegation of, in indictment, 456. 
EVIDENCE, 
judicial notice that certain liquors are intoxicating, 11-18. 
rules of, subject to statutory change, 60. 
of adoption of local option law, 102, 103. 
contesting validity of license, 137. 
of moral character of applicant for license, 162. 
on hearing of application for license, 168. 
on proceedings to revoke license, 194. 
of illegality of sale of liquor, in action for price, 250. 
of illegality of consideration, in action on note, 257. 
of bonafides of holder of note given for liquor, 260. 
in actions under civil damage laws, 327-337. 
admissibility, in general, 327. 
competency of husband as wilness, 328. 
evidence of antecedent facts, 329. 
evidence confined to injury alleged, 330. 
proof of character of plaintiff, 331. 
proof of sale by defendant, 332. 
proof of intoxication as cause of injury, 333. 
evidence of decedent's expectation of life, 334. 
evidence to charge lessor of premises, 335. 
evidence on question of exemplary damages, 336. INDEX. 
671 
EVIDENCE-Continued. 
weight and sufficiency of evidence, 337. 
in actions for abatement of liquor nuisances, 346. 
on hearings under search and seizure process, 366. 
in prosecutions under the liquor laws, 492-584. 
competency of witnesses, 492. 
evidence of spies and informers, 493. 
circumstantial evidence, 494. 
finding liquor on premises, 495. 
efforts to conceal liquor, 496. 
drunken men about the premises, 497. 
weight and sufficiency of, 498. 
knowledge and intent, 499. 
connecting defendant with unlawful acts shown, 500. 
record of prior conviction, 501. 
evidence in case of joint parties, 502. 
proving sale of liquor, 503. 
proof of gift under allegation of sale, 504. 
evidence of other sales, 505. 
evidence of selling without license, 506. 
burden of proving license, 507. 
evidence on question of license, 508. 
United States license as evidence, 509. 
evidence of sale by servant or agent, 510. 
burden of proving legality of sale, 511. 
evidence as to time of offense, 512-514. 
sale on Sunday, 515. 
evidence as to place of offense, 516. 
identification of purchaser, 517. 
evidence under allegation of sale to unknown person, 518. 
evidence of quantity of liquor sold, 519. 
evidence as to kind of liquor sold, 520. 
proof of intoxicating properties of liquor, 521, 522. 
proof of being a common seller, 523. 
of pursuing business of liquor-selling, 524. 
of keeping liquors for unlawful sale, 525. 
of keeping place for unlawful sale, 526. 
of maintaining nuisance, 527. 
evidence on prosecution of club, 528. 
proof of sale of liquor to be drunk on premises, 529. 
of illegal transportation of liquor, 530. 672 
INDEX. 
EVIDENCE-Continued. 
of sale to minor, 531. 
of sale to intoxicated person, 532. 
of sale to habitual drunkard, 533. 
evidence of violation of local option law, 534. 
EX POST FACTO LAW, 
prohibitory liquor law is not, 37, 85. 
imposing additional burdens on holder of license, 50. 
increasing penalty for second offense, 58. 
prohibiting sale of existing liquor, 85. 
EXCEPTIONS, 
in statute, when must be met by negative allegations in indictment, 
444-447. 
must be proved by defendant, 511. 
EXCESSIVE FEE, 
action to recover back, 187. 
EXCHANGE, 
of liquors, not unlawful when statute prohibits sale, 406. 
EXCISE LAWS, (See also Intoxicating Liquors,) 
enacted by virtue of police power, 24, 33. 
constitutionality of, 33-65. 
as interferences with foreign and interstate commerce, 66-79. 
prohibitory laws, 80-90. 
local option laws, 91-106. 
taxation of liquor traffic, 107-113. 
license laws, 114 et seq. 
sales by druggists and physicians, 206-216. 
regulation by municipal ordinance, 217-237. 
laws against adulteration of liquor, 238-241. 
effect of, on contracts and rights of action, 242-276. 
civil damage laws, see that title. 
liquor nuisances, see Nuisance. 
search-warrants for liquors, see Search and Seizure. 
criminal responsibility under, 368-382. 
crimes and offenses against, 333-401. 
indictment for violation of, see Indictment. 
procedure in prosecutions under, see Practice. 
EXECUTION, 
sale of liquor under, need not be licensed, 139. INDEX. 
673 
EXECUTOR, 
liquor license does not pass to, 131. 
when required to take out license, 139. 
EXEMPLARY DAMAGES. 
in actions under civil damage law, 325. 
evidence on question of, 336. 
EXPORTATION, 
manufacture of liquor for, lawfully prohibited by state, 86. 
F. 
FAIRS, 
sale of liquor near, prohibited, 435. 
indictment for, 476. 
FATHER, 
action for damages for selling liquor to child, 285. 
FEDERAL STATUTES, 
on interstate traffic in liquors, 76-78. 
revenue laws not infringed by state prohibitory law, 87. 
prohibiting introduction of liquor into Indian country, 35, 395. 
prohibitory liquor law for Alaska, 35, 396. 
forbidding sale of liquor to Indians, 427. 
FEES FOR LICENSES, 
tender of, not equivalent to taking out license, 121. 
distinguished from taxation, 179. 
fixing amount of, 180. 
reasonableness of amount, 181. 
increasing amount for unexpired term, 182. 
must be paid in advance, 183. 
payable in money only, 184. 
collection of, 185. 
disposition of license moneys, 186. 
excessive or illegal, action to recover back, 187. 
refunding, on cancellation of license, 188. 
under municipal ordinances, 230-232. 
FELONIES, 
violations of liquor law are not, 383. 
selling liquor to Indians not a felony, 427. 
FEMALES, 
signing petition for local option, 93. 
INTOX.LIQ.-43 674 
INDEX. 
FEMALES-Continued. 
when to be counted in ascertaining if majority consent to grant of par- 
ticular license, 161. 
employment of, in liquor saloons, prohibited, 237, 398. 
FINE, 
See Penalties; Sentence. 
FIRE INSURANCE, 
on stock of liquors, 247. 
FOREIGN COMMERCE, 
state liquor laws interfering with, invalid, 67. 
right of importer to sell in original packages, 68. 
FORFEITURE, 
of liquors illegally kept, constitutionality of, 53. 
for breach of liquor laws, power of state to impose, 59. 
of liquor licenses, 189-196. 
of liquors taken on search-warrant, see Search and Seizure. 
FORM, 
of liquor license, 144. 
of petition for license, 156. 
of remonstrance against granting license. 164. 
of licensee's bond, 198. 
of notice not to sell liquor to drunkard, 314. 
of allegation in indictment denying license, 449. 
of criminal proceedings under liquor laws, 538. 
FORMER CONVICTION, 
how alleged in indictment, 491. 
record of, as evidence, 501. 
when a bar to a subsequent prosecution, 555. 
FORMS OF ACTION, 
case under civil damage Jaws, 281. 
FOURTEENTH AMENDMENT, 
state prohibitory laws not in conllict with, 82, 83. 
FOURTH OF JULY, 
legality of sales of liquor on, 431. 
FURNISHING LIQUOR, 
to minors, as an offense, 421. 
to Indians, 427. 675 
INDEX. 
FURNISHING LIQUOR-Continued. 
to lodgers or guests on Sunday, 429. 
proof of, under allegation of sale, 503. 
G. 
GIFT, 
of intoxicating liquors, power of state to prohibit, 39. 
cannot be prohibited under local option against sale, 97. 
does not create liability under civil damage laws, 295. 
not punishable under statute prohibiting sale, 406. 
giving liquor to guest in private house, 407. 
giving liquor to minor, 421. 
proof of, under allegation of sale, 504. 
GIN, 
judicially known as an intoxicating liquor, 14. 
"GLASS," 
not a proper designation of quantity, in indictments, 471. 
proof of sale of, sufficiency of, 519. 
GOVERNMENT LICENSE, 
gives no rights as against prohibition by state, 87. 
nature and effect of, 113, 125, 126. 
as evidence in liquor prosecution, 509. 
GUARDIAN, 
consent of, excuses sale of liquor to minor, 419. 
GUEST, 
giving liquor to, not an offense, 407. 
furnishing liquor to, on Sunday, 429. 
H. 
HABEAS CORPUS, 
as a remedy in federal courts for persons arrested under invalid state 
liquor law, 73. 
HABITUAL DRUNKARDS, (See also Drunkards,) 
criminal liability for selling liquor to, 424. 
what constitutes habitual intemperance, 425. 
seller's knowledge of purchaser's habits, 426. 
indictment for sale of liquor to, 478. 
evidence of sale of liquor to, 533. 676 
INDEX. 
HEARING, 
of applications for license, 166-168. 
on proceedings to revoke license, 194. 
on search and seizure process, 365. 
HOLDER, 
of note given for price of liquor, rights of, 259-261. 
HOLIDAYS, 
keeping saloon open on, prohibited, 393. 
sale of liquor on, 431. 
indictment for selling liquor on, 479. 
HOMESTEAD, 
subject to lien of fine assessed in liquor prosecution, 554. 
HOSPITALITY, 
giving liquor as a means of, not an offense, 407. 
HUSBAND AND WIFE, 
husband's right of action under civil damage laws, 284. 
wife's right of action under civil damage laws, 283, 286. 
injuries for which action lies, 306-309. 
death of husband as ground of action, 310. 
giving notice not to sell to husband, 314. 
husband competent witness for wife, 328. 
criminal liability of husband for illegal acts of wife, 371. 
personal liability of wife, 375. 
husband and wife jointly liable, 376. 
evidence to charge husband for sale by wife, 510. 
I. 
IGNORANCE, 
as defense to charge of selling liquor to minor, 416-418. 
to prosecution for selling to drunkards, 426. 
ILLEGAL FEE, 
action to recover back, 187. 
ILLEGAL SALES, 
See Sale of Liquor. 
ILLEGALITY, 
as defense to action on liquor contract, 248-255, 266-274. 
evidence of, 250. 
as defense to note given for liquors, 256-261. INDEX. 
677 
ILLEGALITY-Continued. 
who may take advantage of, 276. 
IMMORALITY, 
of applicant, as ground for refusing license, 162. 
IMPAIRING OBLIGATION OF CONTRACTS, 
by retroactive effect of prohibitory liquor laws, 84. 
by revocation of licenses, 127. 
IMPLICATION, 
liquor licenses not created by, 118. 
IMPORTER, 
foreign, right of, to sell liquor in original packages, 67, 68. 
non-resident, sales of liquor by, in prohibition state, 69-78. 
exception as to, in statute, need not be met by negative allegation in in- 
dictment, 447. 
defendant claiming exemption as, has burden of proof, 511. 
IN REM, 
proceedings, for seizure and forfeiture of liquors, 350-367. 
INDIAN COUNTRY, 
introduction of liquor into, prohibited, 395. 
INDIANS, 
act of congress prohibiting sale of liquor to, constitutional, 35. 
introduction of liquor into Indian country, 395. 
unlawful sale of liquor to, 427. 
INDICTMENT, 
power of legislature to prescribe forms of, 61. 
prosecution for liquor selling need not be by, 61. 
of officers corruptly granting or refusing license, 176. 
for violation of liquor laws, general principles, 436-452. 
certainty, 437. 
following the statute, 438. 
disjunctive allegations, 439. 
duplicity, 440. 
con junctive allegations, 441. 
joinder of counts, 442. 
surplusage, 443. 
negativing exceptions and defenses, 444. 
exception as to druggists, 445. 
exception as to particular uses, 446. 678 
INDEX. 
INDICTMENT-Continued. 
exception as to imported liquors, 447. 
negativing license or authority to sell. 448. 
form of allegation denying license, 449. 
referring to statute, 450. 
conclusion, against the form of the statute, 451. 
"against the peace," etc., 451. 
complaint under municipal ordinance, 452. 
for violation of liquor laws, particular averments, 453-491 
character or occupation of defendant, 453. 
misnomer of defendant, 454. 
allegations of sales, 455. 
alleging evasions or devices to conceal sale, 456. 
charging use or disposition of liquors, 457. 
knowledge and intent of vendor, 458. 
allegation as to lime, 459. 
laying time with continuando, 460. 
allegation of place, 461. 
laying the venue, 462. 
where place is of the essence, 463. 
allegation of name of purchaser, 464. 
how purchaser described, 465. 
description of liquors sold, 466. 
specifying kind of liquor, 467. 
charging sale of various liquors disjunctively, 468. 
allegation of intoxicating properties of liquor, 469. 
allegation as to quantity sold, 470-473. 
allegation of price paid, 474. 
charging sale of liquor to be drunk on premises, 475. 
alleging sale in prohibited places, 476. 
sales to minors, 477. 
sales to habitual drunkards, 478. 
sales on Sunday, 479. 
sales on election-day, 480. 
being a common seller, 481. 
unlawfully pursuing business of selling, 482. 
keeping liquor for unlawful sale, 483. 
keeping place for unlawful sale, 484. 
keeping tippling-house, 485. 
maintaining liquor nuisance, 486. 
violation of screen law, 487. INDEX. 
679 
INDICTMENT-Continued. 
illegal transportation of liquor, 488. 
violation of laws against adulteration, 489. 
violation of local option law, 490. 
charging second offense, 491. 
INFAMOUS CRIMES, 
infractions of liquor law are not, 61, 383. 
INFANTS, (See also Minors,) 
capacity of, for crimes against liquor laws, 379. 
INFORMATION, 
to procure search-warrant for liquors, 354. 
verification of, 355. 
description in, of premises to be searched, 357. 
description of liquors to be seized, 358. 
for violation of liquor laws, see Indictment. 
INFORMERS, 
evidence of, in liquor cases, credibility of, 493. 
right to share of penalty, 552. 
INJUNCTION, 
to restrain grant of license, 175. 
against liquor nuisance, see Nuisance. 
INJURIES, 
actionable injuries under civil damage laws, 306-312. 
injuries to person, 306. 
injuries to property, 307. 
injuries to means of support, 308. 
mental suffering, 309. 
death as ground of action, 310. 
proximate and remote cause, 311, 312. 
evidence of, 327, 330, 333. 
INSOLVENCY, 
assignment in, passes debtor's liquors, 139. 
INSPECTION, 
of liquors intended for sale, 241. 
indictment for violation of laws requiring, 489. 
INSURANCE, 
on stock of liquors, 247. 680 
INDEX. 
INTEMPERATE HABITS, 
unlawful sale of liquor to persons of, 424. 
what constitutes, 425. 
seller's knowledge of, 426. 
evidence of, 533. 
INTENT, 
in crime of illegally selling liquors, 417, 418, 424. 
of vendor, allegation of, in indictment, 458. 
evidence of, in criminal prosecutions, 499. 
INTEREST, 
disqualification of licensing officers by reason of, 169. 
INTERNAL REVENUE, 
license from U. S. gives no rights against prohibitory law of state, 87. 
nature and effect of U. S. license, 113,125,126. 
INTERPRETATION, 
See Definitions. 
INTERSTATE COMMERCE, 
illegal discrimination against products of other states, 44. 
state laws against sale of imported liquors, 66-79. 
prohibiting importation from another state, 71. 
the "original package" decision, 72. 
the Wilson law and its effect, 76-78. 
prohibitory laws as interferences with, 86. 
INTERSTATE LAW, 
sale of liquor in one state to be delivered in another, 266-273. 
civil damage laws not extra-territorial, 280. 
INTOXICATED PERSONS, 
validity of laws prohibiting sale of liquor to, 42. 
civil remedy for injuries by, see Civil Damage Laws. 
sale of liquor to, as ground for refusing license, 162. 
action for damages for sale of liquor to, see Civil Damage Laws. 
sale of liquor to, as criminal offense, 423. 
proof of sale of liquor to, 532. 
INTOXICATING LIQUORS, 
defined, 2. 
what liquors are intoxicating, 2-18. 
medicines distinguished from, 8. 
when includes "brandy cherries," etc., 10. INDEX. 
681 
INTOXICATING LIQUORS-Continued. 
sale of, at wholesale and retail, distinguished, 23. 
laws relating to, are enacted under the police power, 24. 
constitutionality of laws relating to, 33-65. 
rights of property in, 38. 
power of legislature to define, 43. 
from other states, illegal discrimination against, 44. 
right of foreign importer to sell, 67-78. 
sale of, in "original packages," 72-78. 
prohibition of manufacture and sale of, 80-90. 
local option laws, 91-106. 
taxation of liquor traffic, 107-113. 
license laws, 114 et seq. 
sales by druggists and physicians, 206-216. 
regulation of sales, by municipal ordinance, 217-237. 
laws against adulteration, 238-241. 
property in, 242-245. 
mortgage of, 246. 
insurance of, 247. 
illegally sold, no recovery of price, 249. 
sale of, in one state to be delivered in another, 266-273. 
civil damage laws, 277-337. 
injunction and abatement of liquor nuisances, 338-349. 
search and seizure laws, 350-367. 
illegal sales of, as criminal offenses, 402 et seq. 
INTOXICATION, 
as cause of injury under civil damage laws, 311. 
in public, as a criminal offense, 400. 
meaning of the term, 423. 
J. 
JOINDER OF COUNTS, 
in indictments under the liquor laws, 442. 
JOINT PARTIES, 
license to, 143. 
in action under civil damage laws, 293, 299. 
in proceedings to abate liquor nuisance, 342. 
in offenses against the liquor laws, 378. 
evidence in prosecution against, 502. 
sentence against, 550. 682 
INDEX. 
JUDGMENT, 
for price of liquor illegally sold, validity of, 262. 
under civil damage laws, joint or several, 299, 300. 
against tenant, when evidence against lessor, 335. 
in criminal prosecutions, see Sentence. 
JUDICIAL NOTICE, 
of the intoxicating properties of various liquors, 11 18. 
of adoption of local option law, 102. 
JUDICIAL SALE, 
of liquors, not required to be licensed, 139. 
JURISDICTION, 
for revocation of license, 191. 
on search and seizure process, 365. 
in criminal prosecutions, 535. 
JURORS, 
competency of, in liquor prosecutions, 516. 
JURY TRIAL, 
constitutional right of, 62. 
not demandable in proceedings to revoke license, 194. 
in prosecutions for violation of liquor laws, 545. 
competency of jurors, 546. 
K. 
KEEPING OF LIQUORS, 
unlawfully, a criminal offense, 387. 
indictment for, 483. 
evidence of, 525. 
KNOWLEDGE, 
of purchaser's minority, when necessary to complete offense of selling to a 
minor, 416. 
ignorance of fact as a defense, 417, 418. 
of purchaser's intemperate habits, 426. 
of vendor, allegation of, in indictment. 458. 
evidence of, in criminal prosecution, 499. INDEX. 
683 
L. 
LAGER-BEER, 
whether an intoxicating liquor, 17. 
LANDLORD AND TENANT, 
avoidance of leases under the liquor laws, 275. 
liability of landlord under civil damage laws, 301. 
knowledge and consent of landlord, 302. 
establishment of lien on premises, 303. 
liability for exemplary damages, 325. 
evidence to charge landlord, 335. 
liability of landlord for maintaining liquor nuisance, 342. 
criminal liability of landlord, 382. 
LARCENY, 
of intoxicating liquors, 243. 
LEGAL HOLIDAYS, 
keeping saloon open on, prohibited, 393. 
sale of liquor on, 431. 
indictment for sale of liquor on, 479. 
LESSOR, 
lien of liquor tax on property of, 111. 
avoiding lease for illegal liquor selling by tenant, 275. 
liability of, under civil damage laws, 301-303. 
liability for exemplary damages, 325. 
evidence to charge lessor, 335. 
liable for maintaining liquor nuisance, 342, 344. 
criminal liability of, 382. 
LEVY OF TAXES, 
on business of liquor-selling, 112. 
collection of license fees, 185. 
LICENSE, 
constitutionality of laws relating to, 46-51, 114-116. 
requiring assent of neighbors, 47. 
discrimination against non-residents, 48. 
restriction to particular classes, 49. 
regulation of sales by licensees, 50. 
revocation of license, 51. 
abrogation of, by adoption of prohibitory law, 84, 90, 127. 
from U. S., gives no rights as against prohibition by state, 87, 125. 684 
INDEX. 
LICENSE-Continued. 
revoked by adoption of local option law, 101. 
distinguished from taxation of business, 108. 
government licenses, 113, 125, 126. 
repeal of prior laws by enactment of license law, 116. 
nature and effect of, 117-137. 
definition of license, 117. 
not created by parol or implication, 118. 
wrongfully withheld, no excuse for selling without, 119. 
impossibility of obtaining, 120. 
performance of conditions not equivalent to, 121. 
no retroactive effect, 122. 
number of licenses required, 123. 
separate, from different jurisdictions, 124. 
from United States, effect of, 125, 126. 
licenses are not contracts, 127. 
licenses give no vested rights, 128. 
revoked by repeal of law, 129. 
not assignable, 130. 
does not pass to administrator, 131 
protects servant or agent of licensee, 132. 
forfeited by removal from state, 133. 
rights of partners under, 134. 
transfer of, under statute, 135. 
expired, does not authorize sales, 136. 
invalid, is no protection, 137. 
the persons to be licensed, 138-143. 
what persons eligible, 138. 
who must take out license, 139. 
wholesalers, 140. 
manufacturers, 141. 
social clubs, 142. 
license to joint parties, 143. 
form and conditions of license, 144-147. 
form of license, 144. 
designation of place of sale, 145. 
conditions in license, 146. 
duration of license, 147. 
limitation of rights secured by license, 148-153. 
license subject to existing laws, 148. 
affected by subsequent laws, 149. INDEX. 
685 
LICENSE-Continued. 
restriction as to place of sale, 150. 
sales to certain persons prohibited, 151. 
requirement that license be displayed, 152. 
screen law, 153. 
proceedings to obtain license, 154-178. 
power to grant licenses, 154. 
power cannot be delegated, 155. 
application for license, 156. 
affidavit of applicant, 157. 
notice of application, 158. 
recommendation of application, 159. 
who may sign recommendation, 160. 
number of persons recommending, 161. 
moral qualifications of applicant. 162. 
requirement as to residence, 163. 
remonstrances, 164. 
right to contest application, 165. 
appointing day for hearing, 166. 
procedure on hearing application, 167. 
evidence on application, 168. 
disqualification of judges, 169. 
discretion in granting or refusing license, 170, 171. 
mandamus to compel issue of license, 172. 
appeal from order of licensing authority, 173. 
certiorari to review proceedings, 174. 
restraining grant of license, 175. 
indictment of licensing board, 176. 
action for refusal to issue license, 177. 
license not collaterally impeachable, 178. 
fees for licenses, 179-188. 
license fees not taxation, 179. 
fixing amount of fees, 180. 
reasonableness of amount, 181. 
ordinance increasing amount, 182. 
payment in advance required, 183. 
payment must be in money, 184. 
collection of license fees, 185. 
disposition of license moneys, 186. 
recovery back of excessive or illegal fee, 187. 
refunding money on cancellation of license, 188. 686 
INDEX. 
LICENSE-Continued. 
revocation of licenses, 189-196. 
power to revoke licenses, 189. 
revocation by repeal of law, 190. 
jurisdiction for revocation, 191. 
causes for revocation, 192. 
notice to licensee, 193. 
proceedings and evidence, 191. 
appeal and review, 195 
effect of revocation, 196. 
bonds of licensees, 197-203. 
essential to validity of license, 197. 
form and contents, 198. 
approval of bond, 199. 
breach of conditions of, 200. 
actions on, 201. 
damages recoverable in suits on, 202. 
liability of sureties, 203. 
town agents, appointment and character of, 204. 
their powers and duties, 205. 
to druggists and physicians, 206-216. 
grant of, by municipal corporations, 229-233. 
no recovery of price of liquor sold without, 249. 
no defense in action under civil damage laws, 316. 
abuse of, constitutes liquor nuisance, 342. 
selling liquor without, as a criminal offense, 409-413. 
not a continuing offense, 410. 
sales exempted from license laws, 411. 
unlicensed sales for medical uses, 412. 
sales for purposes not authorized by license, 413. 
sale out of tiarritory covered by license, 434. 
negative allegation as to, in indictments, 448. 
form of allegation denying license, 449. 
evidence in prosecution for selling without, 506. 
burden of proving license, 507. 
evidence on question of, 508. 
government license as evidence in prosecution, 509. 
LIEN, 
of tax on liquor-selling, 111. 
of judgment under civil damage law, 303. INDEX. 
687 
LIEN-Continued. 
of fines, on premises where sale made, 382. 
on homestead, 554. 
LIMITATION OF ACTIONS, 
under civil damage laws, 282. 
prosecutions under liquor laws, 536. 
LIQUOR, (See also Intoxicating Liquors,) 
meaning of the term, 7. 
adulteration of, prohibited, 238-241. 
civil action for injuries caused by sale of, see Civil Damage Laws. 
seizure of, on search-warrant, see Search and Seizure. 
LOCAL OPTION LAWS, 
nature and terms of, 91. 
constitutionality of, 45, 92. 
petition for election, 93. 
notice of election, 94, 
order for election, 95. 
time of holding election, 96. 
conduct of election, 97. 
publication of result, 98. 
time of taking effect, 99. 
operation and effect of, 100. 
effect on prior rights and privileges, 101. 
proof of adoption of, 102. 
contesting validity of election, 103. 
effect of, on prior liquor laws, 104. 
effect of changing boundary of district, 105. 
repeal of, 106. 
charging violation of, in indictment, 490. 
evidence of violation of, 534. 
LODGERS, 
sales of liquor on Sunday to, 429. 
M. 
MAJORITY, 
necessary for adoption of local option, 97. 
favoring grant of particular license, 161. 
MALT LIQUOR, 
meaning of the term, 6. 688 
INDEX. 
MANDAMUS, 
does not lie to compel transfer of license, 135. 
to compel licensing board to hear evidence, 167. 
to compel issuing of license, 172. 
to compel approval of license bond, 199. 
MANUFACTURE OF LIQUOR, 
may be totally prohibited, 37. 
operation and effect of prohibition of, 80-90. 
prohibition of by local option, 91-106. 
license to manufacturers, 141. 
when a criminal offense, 399. 
indictment for, need not specify quantity, 473. 
MARRIED WOMEN, 
actions by, under civil damage laws, 283, 286. 
injuries for which action lies, 306-311. 
criminal liability for illegal acts of, 374-376. 
MASTER AND SERVANT, 
master's license protects sales by servant, 132. 
revocation of license for offense committed by bar-tender, 192. 
sale of liquor by druggist's clerk, 213. 
master's action for damages for sale of liquor to servant, 288. 
responsibility of master under civil damage Jaws, 298. 
criminal liability of master for acts of servant, 368. 
unauthorized sales, 369. 
statutory liability for unauthorized sales, 370. 
proof of complicity of master, 371. 
personal liability of servant for unlawful acts, 372. 
master and servant both liable, 373. 
evidence to charge master for sale by servant, 510. 
MAXIMS, 
salus populi suprema lex, 24. 
sic utere tuo ut alienum non Icedas, 24. 
volenti non fit injuria, 291. 
MEANS OF SUPPORT, 
injuries to, actionable under civil damage laws, 308, 310. 
MEASURE OF DAMAGES, 
in actions under civil damage law, 324. 
exemplary damages, 325. 689 
INDEX. 
MEDICINES, 
how distinguished from intoxicating liquors, 8. 
sale of liquors as, by druggists, 206-216. 
indictment for unlawful sale of liquor, negative allegation as to medicinal 
uses, 446. 
MENTAL SUFFERING, 
damages for, when recoverable under civil damage laws, 309. 
MINORS, 
validity of laws prohibiting sale of liquor to, 42. 
action for damages lor sale of liquor to, 277, 285, 286. 
criminal responsibility under liquor laws, 379. 
selling liquor to, as a criminal offense, 415-422. 
seller's knowledge of minority, 416. 
ignorance of minority as a defense, 417. 
mistake of fact held no defense, 418. 
consent of parent or guardian, 419. 
sale to minor as agent for an adult, 420. 
adult treating minor, 421. 
purchase by adult as agent for minor, 422. 
indictment for sale of liquor to, 477. 
proof of sale of liquor to, 531. 
MISDEMEANOR, (See also Crimes,) 
violation of liquor law is a, 383. 
MISNOMER, 
in indictments in liquor cases, 454. 
MISTAKE, 
as defense to charge of selling liquor to minor, 416-418. 
selling to drunkards, 426. 
MITIGATION OF DAMAGES, 
in actions under civil damage laws, 326. 
MONEY, 
license fees must be paid in, 184. 
paid on illegal liquor contract, when recoverable, 263, 265. 
MORAL CHARACTER, 
of applicant for liquor license, proof of, 162. 
MORTGAGE OF LIQUORS, 
mortgagee is not an "importer," 68. 
validity of, 246. 
INTOX.LIQ. 44 690 
INDEX. 
MUNICIPAL CORPORATIONS. 
power of, to require licenses, concurrent with that of state or county, 124. 
regulation of liquor traffic by, 217-237. 
delegation of regulative power to, 217-219. 
extent of power delegated, 220. 
ordinances partially in excess of power, 221. 
conflict of ordinance with constitution, 222. 
conflict of ordinance with general law, 223. 
repeal of ordinance by subsequent statute, 224. 
co-ordinate authority of state and municipality, 225. 
grant of exclusive power to municipality, 226. 
power to regulate does not include power to prohibit, 227. 
I ower granted to municipality not to be delegated, 228. 
power of municipality to grant licenses, 229. 
power to exact license fees. 230. 
amount chargeable for licenses, 231. 
differential rates for licenses, 232. 
revocation of licenses, 233. 
regulating sale of liquor by ordinance, 234. 
prohibiting sale on Sunday, 235. 
prescribing hours ofclosing saloons, 236. 
prohibiting employment of women in saloons, 237. 
N. 
NAME, 
misnomer in indictment, 454. 
of purchaser, allegation of, in indictment, 464. 
how purchaser is described, 465. 
NEGATIVE ALLEGATIONS, 
in indictments in liquor cases, 444-449. 
negativing exceptions and defenses, 444-447. 
negativing license or authority to sell, 448. 
form of allegation denying license, 449. 
NEGLECT, 
of officer to issue license, no excuse for selling without it. 119. 
NEGLIGENCE, 
of plaintiff, as defense to action under civil damage law, 317. 
concurrent act of intoxicated person, 318. 
NEWSPAPERS, 
publication of local option notices in, 94, 98. INDEX. 
691 
NEWSPAPERS-Continued. 
publication of notice of application for license in, 158. 
NON-RESIDENTS, 
may be disqualified to take liquor licenses, 48. 
right of, to sell liquor in original packages, 69-78. 
not eligible to be licensed. 138. 
NOTES, 
not receivable in payment of license fees, 184. 
given for price of liquors, validity of, 256-261. 
void if sale was illegal, 256. 
proof of illegality of note, 257. 
consideration partly illegal, 258. 
rights of innocent holder for value, 259. 
proof of character of holder, 260. 
purchaser after maturity not protected, 261. 
NOTICE, 
of election under local option law, 94. 
of application for license, 158. 
of proceedings to revoKe license, 193. 
forbidding sale of liquor to drunkard, 314. 
to claimants of liquor seized on search-warrant, 364. 
NUISANCE, 
by keeping place for unlawful sale of liquor, 338-349. 
statutes defining liquor nuisances, 338. 
constitutionality of statutes, 54, 339. 
elements of the offense, 340. 
who may institute proceedings, 341. 
parties defendant, 342. 
abatement of nuisance, 343. 
injunction against nuisance, 344. 
pleading, 345. 
evidence, 346. 
practice, 347. 
allowance of attorney's fees, 348. 
contempt proceedings for violation of injunction, 349. 
maintaining liquor nu.sance, as a criminal offense, 388. 
indictment for maintaining, 486. 
evidence on prosecution for, 527. 692 
INDEX. 
O. 
OATH, 
against adulteration of liquor, 241. 
to complaint for search-warrant for liquor, 355. 
OBLIGATION OF CONTRACTS, 
not impaired by retroactive effect of prohibitory laws, 84. 
not impaired by license laws, 127. 
OFFICER, 
selling liquor on execution, needs no license, 139. 
corruptly granting or refusing license, indictable, 176. 
execution of search-warrant for liquors, 359. 
return to warrant, 361. 
arresting or seizing without warrant, 363. 
"ON OR ABOUT," 
use of phrase, in indictments, as descriptive of time, 459. 
"OR," 
improper use of this word in indictments, 439. 
ORDER OF COURT, 
for election under local option law, 95. 
for abatement of liquor nuisance, 343. 
ORDINANCE, 
increasing amount of license fee for unexpired term, 182. 
regulating liquor traffic, see Municipal Corporations. 
complaint for violation of, 452. 
ORIGINAL PACKAGES, 
sale of liquor in, by foreign importer, 67, 68. 
by importer from one state to another, 69-75. 
under the Wilson law, 76-78. 
p. 
PARENT AND CHILD, 
parent's action for damages for selling liquor to child, 285. 286. 
child's action for selling to parent, 287. 
parent's consent as defense to indictment for sale to minor, 419. 
PAROL, 
liquor licenses not created by, 118, 144. INDEX. 
693 
PARTIES TO ACTIONS, 
under civil damage laws, 283-301. 
parties plaintiff, 283-292. 
joinder of plaintiffs, 293. 
parties defendant, 294-301. 
joinder of defendants, 299. 
in proceeding to abate liquor nuisances, 341, 342. 
who may institute action, 341. 
parties defendant, 342. 
PARTNERS, 
rights of, under license granted to firm, 134. 
may be jointly licensed, 143. 
jointly liable for maintaining liquor nuisance, 342. 
liability of, for crimes against liquor laws, 377. 
PAYMENT, 
of license fee, not equivalent to taking out license, 121. 
must be made in advance, 183. 
must be made in money, 184. 
collection by suit, 185. 
when may be recovered back. 187. 
on illegal liquor contract, when recoverable back, 263, 265. 
appropriation of, on accounts partly illegal, 252. 
PENALTIES, 
for breach of liquor law, power of state to impose, 58, 59. 
increased penalty for second offense, 58, 551. 
release of, by repeal of local option law, 106. 
not released by subsequent grant of license, 122. 
for sale of adulterated liquor, 238-241. 
for crimes against liquor laws, 548. 
against joint offenders, 550. 
informer's share of, 552. 
double, 553. 
lien of, on homestead, 554. 
PERSONAL INJURIES, 
under civil damage laws, what are, 306, 309. 
PETITION, 
for election under local option law, 93. 
for license, form and requisites of, 156. 
giving notice of, 158. 694 
IN VEX. 
PETITION-Continued. 
recommendation of, 159-161. 
qualifications of applicant, 162, 163. 
remonstrances against, 164, 165. 
procedure on, 167-169. 
for injunction against liquor nuisance, 345. 
PHARMACISTS, 
See Druggists. 
PHYSICIANS, 
furnishing liquor as medicine, 215, 216. 
PLACE OF SALE, 
designation of, in license, 145. 
restriction of licensee's right as to, 150. 
regulation of, by municipal ordinance, 234. 
sale out of territory covered by license, 434. 
allegation of, in indictment, 461-463. 
evidence as to, 516. 
PLEADING, 
rules of, subject to statutory change, 61. 
requisites of application for license, 156. 
remonstrances against granting license, 164. 
in actions under civil damage laws, 319-322. 
allegations of complaint, 319. 
negativing contributory negligence, 320. 
correspondence of pleading and proof, 321. 
amendment of declaration, 322. 
in actions for abatement of liquor nuisance, 345. 
information to procure search-warrant for liquors, 354. 
verification of, 355. 
in prosecutions under liquor laws, see Indictment. 
POLICE POWER, 
explanation of general theory of, 24-32. 
defined, 24. 
scope and extent of, 25. 
examples of its application, 26. 
limited by federal constitution, 27. 
as impairing obligation of contracts, 28. 
must not amount to regulation of commerce, 29. 
affecting rights of citizens of other states, 30. INDEX. 
695 
POLICE POWER-Continued. 
application of, to liquor traffic. 31. 
distinguished from eminent domain, 32, 83. 
liquor laws are referable to, 33. 
constitutionality of laws regulating liquor traffic, 33-65. 
state laws against sale of foreign imported liquors, 66-79. 
power to prohibit liquor traffic entirely, 80-90. 
local option laws, 91, 92. 
taxation of liquor traffic, 107-113. 
the licensing system, 114 et seq. 
regulation of liquor traffic by municipal corporations, 217-237. 
laws against adulteration of liquor, 239. 
POOR DISTRICT, 
action by, under civil damage laws, 290. 
POSTING NOTICES, 
of election under local option law, 94. 
PRACTICE, 
on application to transfer license, 135. 
proceedings to obtain licenses, 154-178. 
hearing of application, 167. 
review of proceedings, 173-175. 
revocation of licenses, 189-196. 
parties to actions under civil damage laws, 283-301. 
on proceedings to abate liquor nuisance, 347. 
on search and seizure process, 359-365. 
execution of search-warrant, 359. 
officer's return to warrant, 361. 
notice to claimants, 364. 
jurisdiction and procedure, 365. 
on criminal prosecutions under liquor laws, 535 555. 
jurisdiction, 535. 
limitation of actions, 536. 
effect of repeal of statute, 537. 
form of proceeding, 538. 
who may prosecute, 539. 
preliminary proceedings, 540. 
warrant or summons, 541. 
defendant's plea, 542. 
specification of offenses, 543. 
election between offenses, 544. 696 
INDEX. 
PRACTICE-Continued. 
trial by jury. 545. 
competency of jurors, 546. 
verdict, 547. 
sentence and punishment, 548. 
separate sentences on separate counts, 549. 
sentencing joint offenders, 550. 
increased penalty for second offense, 551. 
informer's share of penalty, 552. 
double penalties, 553. 
lien of fine on homestead, 554. 
bar by former conviction or acquittal, 555. 
PREMISES, 
selling liquor to be drunk on the, 392. 
what constitutes premises of seller, 392. 
indictment for, 475. 
finding of liquor on, as evidence, 495. 
proof of sale of liquor to be drunk on, 529. 
PRESCRIPTION OF PHYSICIAN, 
sale of liquor on, 211-216. 
PRICE, 
of liquor sold, allegation of, in indictment, 474. 
PRINCIPAL AND AGENT, 
licensed dealer may sell by agent, 132. 
effect of principal's removal from state, 133. 
sale of liquor by druggist's clerk, 213. 
agent of non-resident dealer soliciting orders for liquor, 268, 273. 
civil responsibility for sales by agent, 298. 
criminal liability of principal for acts of agent, 368-371. 
personal liability of agent for unlawful acts, 372, 373. 
in unlawful purchase of liquor, 408, 420, 422. 
evidence to charge principal for sale by agent, 510. 
PRIOR CONVICTION, 
how alleged in indictment, 491. 
record of, as evidence, 501. 
when a bar to subsequent prosecution, 555. 
PROCEDURE, 
See Practice. INDEX. 
697 
PROCEEDINGS IN REM, 
for seizure and forfeiture of liquors, 350-367. 
PROHIBITION, 
constitutionality of, 37, 81. 
effect of, on foreign and interstate commerce, 66-79. 
nature and terms of prohibitory laws, 80. 
validity of, 81. 
abridging rights of citizenship, 82. 
taking or damaging property without compensation, 83. 
impairing the obligation of contracts, 84. 
retrospective effect, 85. 
regulation of commerce, 86. 
conflict with U. S. revenue laws, 87. 
adoption of constitutional amendment, 88. 
property in liquors under, 89. 
repealing prior laws, 90. 
by local option, 91-106. 
exception as to sales by druggists, 208. 
distinguished from regulation, 227. 
in Alaska, by act of congress. 396. 
PROMISSORY NOTES, 
not receivable in payment of license fees, 184. 
given for price of liquors, see Notes. 
PROPERTY, 
in what sense intoxicating liquors are, 38. 
rights of importer of liquors, 67-78. 
effect of prohibition on existing rights of, 83-85. 
in liquors, under prohibitory laws, 89. 
liquor license is not, 127, 128. 
in intoxicating liquors, 242-247. 
liquor is a subject of larceny, 243. 
action for wrongful taking or conversion, 244, 245. 
mortgage of liquors, 246. 
insurance of liquors, 247. 
injuries to, actionable under civil damage laws, 307. 
seizure of, on search-warrant, 360. 
PROSECUTOR, 
in liquor cases, who may be, 539. 
PROXIMATE CAUSE, 
of injuries remediable under civil damage laws, 311, 312. 698 
INDEX. 
PUBLIC BUILDINGS, 
sale of liquor near, prohibited, 435. 
PUBLIC HOLIDAYS, 
statutes prohibiting sale of liquor on, 431. 
indictment for sale of liquor on, 479. 
PUBLICATION, 
of notice of local option election, 94. 
of result of local option election, 98. 
of notice of application for license, 158. 
PULLMAN CARS, 
conductors of, cannot sell liquor without license, 139. 
PUNISHMENT, 
for breach of liquor law, powrer of state to impose, 58. 
increased penalty for second offense, 58. 
must not be excessive or unusual, 63. 
of officers corruptly granting or refusing licenses, 176. 
for violation of injunction against liquor nuisance, 349. 
in prosecutions under liquor laws, 548-553. 
PUNITIVE DAMAGES, 
in action under civil damage law, 325. 
evidence on question of, 336. 
PURCHASER, 
of liquor illegally sold, not guilty of an offense, 381. 
not an accessary or accomplice, 381. 
agent acting for, not guilty of selling liquor, 408. 
minor acting as agent or messenger for, 420. 
name of, allegation of, in indictment, 464. 
evidence to identify, 517. 
where person is unknown, 518. 
q 
QUANTITY, 
of liquor sold, allegation of, in indictments, 470. 
charging sale of a "glass" or "drink," 471. 
under statute prohibiting sales of less than a certain quantity, 472. 
where quantity is not material to offense, 473. 
proof of, 519. INDEX. 
699 
R. 
BEAL ESTATE, 
lien of liquor tax on, 111. 
liability of, for judgment under civil damage laws, 301-303. 
RECOMMENDATION, 
of petition for liquor license, 159-161. 
RECORD, 
of pr.or conviction, as evidence, 501. 
as evidence on question of license, 508. 
REGULATION, 
of liquor traffic, see License; Municipal Corporations. 
distinguished from prohibition, 227. 
REGULATION OF COMMERCE, 
See Commerce. 
REMONSTRANCE, 
against granting liquor license, 164-168. 
REPEAL, 
of existing liquor laws by adoption of prohibition, 90. 
by adoption of local option, 104. 
of local option law, 106. 
of prior laws by enactment of license law, 116. 
of prior statute, cancels existing licenses, 190. 
of ordinance, by subsequent statute, 224. 
of statute, effect on past crimes, 537. 
REPLEVIN, 
of liquor unlawfully seized, 244, 245. 
of liquor in possession of officer, 362. 
REPORTS, 
of sales by licensed druggists, 212. 
RESIDENCE, 
as qualification of applicant for license, 163. 
RESTRAINT OF TRADE, 
contracts in restraint of liquor traffic are valid, 274. 
RETAIL, 
defined, and distinguished from wholesale, 23. 
licensing sales at, 114 et seq. 700 
INDEX. 
RETAIL-Continued. 
dealers required to be licensed, 139. 
selling at, when a misdemeanor, 414. 
RETROSPECTIVE LAWS, 
effect of prohibition on existing rights and property, 83-85 
effect of, on existing licenses, 149. 
RETURN, 
of officer, to search-warrant, 361. 
when admissible in evidence, 366. 
REVENUE LAWS, 
license granted under, abrogated by prohibitory law, 87. 
imposing taxation on liquor traffic, 107-113. 
nature and effect of government licenses, 113, 125, 126. 
crimes and offenses against, 383-401. 
REVIEW, 
of proceedings on application for license, 173-175. 
of proceedings to revoke license, 195. 
REVOCATION, 
of license, constitutionality, 51. 
power to revoke, 189. 
by repeal of prior law, 190. 
jurisdiction for, 191. 
causes for, 192. 
notice to licensee, 193. 
proceedings and evidence, 194. 
appeal and review, 195. 
effect of revocation, 196. 
of license of druggist, 214. 
of license, by municipal authorities, 233. 
RUM, 
judicially known as an intoxicating liquor, 15. 
S. 
SABBATH DAY, 
See Sunday. 
SALE OF LIQUOR, 
validity of total prohibition of, 37. 
power of states to regulate, 39. INDEX. 
701 
SALE OF LIQUOR-Continued. 
restriction to particular localities, 40. 
forbidden on particular days, 41. 
to particular classes of persons, 42. 
requiring license to sell, 46. 
regulation of sales by licensees, 50. 
taxation of, 55, 107-113. 
by foreign or non-resident importer, 67-78. 
total prohibition of, 80-90. 
prohibition of, by local option, 91-106. 
statutes licensing, 114 et seq. 
under judicial process, needs no license, 139. 
by druggists and physicians, 206-216. 
regulation of, by municipal corporations, 217-237. 
laws against adulteration, 238, 241. 
illegal, no recovery of price, 249. 
in another state, act:on for price, 266-272. 
civil responsibility for injuries caused by, see Civil Damage Laws. 
proof of, in civil damage action, 332. 
illegal, as a statutory nuisance, 338-349. 
illegal, criminal responsibility for, 368-382. 
statutory offense of being a "common seller," 385. 
pursuing the business of, when an offense, 386. 
keeping unlicensed place for, 389. 
selling liquor to be drunk on premises, 392. 
illegal sales as criminal offenses, 402-435. 
what constitutes a sale, 403. 
sales on credit, 404. 
devices to conceal a sale, 405. 
sale distinguished from gift or barter, 406. 
sales without license, 409-413. 
sales in prohibited quantities, 414. 
sales to minors, 415-422. 
sales to intoxicated persons, 423. 
sales to habitual drunkards, 424-426. 
sales to Indians, 427. 
sales on Sunday, 428, 429. 
sales on election-days, 430. 
sales on public holidays, 431. 
sales after lawful hours, 432. 
sales in prohibited places, 433. 702 
INDEX. 
SALE OF LIQUOR-Continued. 
sales out of territory covered by license, 434. 
sales near churches, schools, fairs, etc., 435. 
unlawful, indictment for, see Indictment. 
how alleged in indictment, 455. 
allegation of time, place, quantity, and price, 459 -474. 
evidence of, in criminal prosecution, 503. 
SALOON, 
not necessarily a place where liquor is sold, 21. 
displaying license in, 152. 
regulation of, by municipal ordinance, 234, 235. 
hours of closing, 236. 
employment of women, 237, 308. 
keeping open on prohibited days, 393. 
SATISFACTION, 
from one of several parties liable under civil damage laws discharges all, 
300. 
SCHOOLS, 
laws prohibiting sale of liquor near, 40. 
sale of liquor near, as an offense, 435. 
indictment for, 476. 
SCREEN LAW, 
constitutionality of, 50. 
construction and operation of, 153. 
indictment for violation of, 487. 
SEARCH AND SEIZURE, 
statutes providing for search and seizure of liquors, 350. 
constitutionality of statutes, 52, 351. 
confiscation of liquor, 53. 
nature of the proceeding, 352. 
in whose possession liquor may be seized, 353. 
complaint or information, 354. 
verification of complaint, 355. 
requisites of search warrant, 356. 
description of premises to be searched, 357. 
description of liquor to be seized, 358. 
execution of warrant, 359. 
what property may be seized, 3GJ. 
officer's return to warrant, 361. INDEX. 
703 
SEARCH AND SEIZURE-Continued. 
status of property under seizure. 362. 
arrest or seizure without warrant, 363. 
notice to claimants, 364. 
jurisdiction and procedure, 365. 
evidence, 366. 
rights of claimant, 367. 
SEARCH-WARRANTS, 
constitutional provisions as to, 52 
for liquors illegally kept, 350-367. 
founded on complaint or information, 354. 
requisites and contents of, 356. 
description of place and property in, 357, 358. 
execution of, 359. 
what property may be seized under, 360. 
officer's return to, 361. 
SECOND OFFENSE, 
indictment for, allegations of, 491. 
increased penalty for, 551. 
SEIZURE OF LIQUORS, 
See Search and Seizure. 
SENTENCE, 
in prosecutions under liquor laws, 548. 
separate sentences on separate counts, 549. 
against joint offenders, 550. 
increased penalty for second offense, 551. 
informer's share of penalty, 552. 
double penalties, 553. 
SERVANT, 
selling liquor, protected by master's license, 132. 
civil responsibility of master for sales by, 298. 
criminal liability of master for sales by, 368-371. 
personal liability for unlawful sales, 372, 373. 
evidence to charge master for sales by, 510. 
SHERIFF, 
selling liquor on execution, needs no license, 139. 
execution of search-warrant for liquors, 359. 
return to warrant, 361. 
arresting or seizing without warrant, 363. 704 
INDEX. 
SOCIAL CLUBS, 
when required to take out license, 142. 
evidence on indictment of, 528. 
SOCIETIES, 
when required to take out license, 142. 
SOLDIERS' HOME, 
sale of liquor near, prohibited, 435. 
SPECIFICATION OF OFFENSES, 
in prosecutions under liquor laws, 543. 
SPIES, 
credibility of evidence of, 493. 
SPIRITUOUS LIQUOR, 
meaning of the term, 3. 
not synonymous with "intoxicating," 2, 3. 
"SPOTTERS, " 
credibility of evidence of, 493. 
STATES, 
police power of, in regulating liquor traffic, 24. 
power of, to regulate and control liquor traffic, 33-65. 
liquor laws of, as regulations of commerce, 66-79. 
prohibitory liquor laws of, 80-90. 
STATUTES, 
explanation of terms used in, relating to intoxicants, 1-23. 
against liquor traffic, are referable to police power, 24, 33. 
against liquor traffic, constitutionality of, 33-65. 
prohibitory laws, 37. 
local option laws, 45. 
license laws, 46. 
search and seizure laws, 52. 
civil damage laws, 56. 
criminal provisions, 58. 
affecting rules of evidence, 60. 
relating to criminal pleading, 61. 
conformity of title and subject-matter, 64. 
constitutional provisions as to enactment of, 65. 
of states, as regulations of commerce, 66-79. 
the "Wilson" act of congress, 76. 
effect of Wilson act on existing state law's, 78. INDEX. 
705 
STATUTES-Continued. 
prohibitory laws, 80-90. 
repealed by adoption of prohibition, 90. 
local option laws, 91-106. 
repeal of prior, by adoption of local option, 104. 
taxing traffic in liquors, 107-113. 
licensing sale of liquors, 114 et seq.. 
delegating police power to municipalities, 217-220. 
against adulteration of liquor, 238-241. 
forbidding recovery of possession or value of liquor, 245. 
forbidding credit for liquor sold, 255. 
authorizing recovery of money paid on liquor contracts, 265. 
prohibiting recovery on foreign sales of liquor, 272. 
prohibiting non-resident dealers soliciting orders, 273. 
avoiding leases for illegal liquor-selling by tenant, 275. 
giving action for injuries caused by sale of liquor, see Civil Dam- 
age Laws. 
providing for abatement of liquor nuisances, 338-349. 
authorizing search for and seizure of liquors, 350. 
prohibiting introduction of liquors into Indian country, 395. 
regulating sale of liquor in Alaska, 396. 
following the language of, in indictments, 438. 
exceptions in, to be met by negative allegations, 444. 
reference to, in indictments, 450. 
STOPPAGE IN TRANSIT, 
of liquors illegally sold, 245. 
STRONG BEER, 
judicially known as an intoxicating liquor, 17. 
SUICIDE, 
of intoxicated husband or father, as ground of action under civil damage 
laws, 311. 
SUIT, 
for wrongful refusal to issue license, 177. 
for collection of license fees, 185. 
to recover back excessive or illegal license fee, 187. 
on bond of licensee, 201-203. 
for wrongful taking or conversion of liquor, 244, 245. 
for price of liquors sold, 248-251. 
on note given for liquors, 256-261. 
for recovery of money paid on liquor contract, 263-265. 
INTOX.LIQ. 45 706 
INDEX. 
SUIT-Continued. 
for liquors sold in another state, 266-273. 
to avoid lease, for illegal liquor-selling by tenant, 275. 
for damages for selling liquor, see Civil Damage Laws. 
for abatement of liquor nuisance, 338-349. 
SUMMONS, 
in liquor cases, requisites of, 541. 
SUNDAY, 
validity of laws prohibiting sale of liquor on, 41. 
ordinance prohibiting sale of liquor on, 235. 
keeping open saloon on, 393. 
selling liquor on, as an offense, 428. 
to lodgers or guests, 429. 
indictment for, 479. 
evidence of, 515. 
SURETIES, 
on license bonds, liability of, 203. 
liability under civil damage laws, 297. 
SURPLUSAGE, 
in indictments in liquor cases, 443. 
T. 
TAKING PRIVATE PROPERTY, 
by adoption of prohibitory liquor law, 83. 
TAVERN, 
meaning of the term, 19. 
license to keep, gives no authority to sell liquor, 19. 
keeping, for unlawful sale of liquor, 389. 
keeping open on prohibited days, 393, 429-431. 
sales of liquor after lawful hours, 432. 
TAXATION, 
of liquor traffic, constitutionality of, 55, 107. 
distinguished from licensing, 108. 
equality and uniformity in, 109. 
conflict with other liquor laws, 110. 
lien of, on real estate, 111. 
levy and collection of liquor tax, 112. 
under U. S. internal revenue laws, 113. INDEX. 
707 
TAXATION-Continued. 
fees for licenses, 179-188. 
TENDER, 
of fee, not equivalent to taking out license, 121. 
of license fee, must be in money, 184. 
TERRITORIES, 
local option in the, 45. 
may prohibit liquor-selling notwithstanding government licenses, 125. 
THANKSGIVING DAY, 
statutes prohibiting sale of liquor on, 431. 
THEATRES, 
sale of liquor in, prohibited, 391. 
"THEN AND THERE," 
use of the phrase in indictments, 459. 
TIE-VOTE, 
not sufficient for adoption of local option, 97. 
TIME, 
of duration of liquor license, 147. 
allegations of, in indictment, 459, 460. 
evidence as to, in liquor prosecutions, 512. 
single unlawful sale, 513. 
continuing offense, 514. 
sale on Sunday, 515. 
TIPPLING-HOUSE, 
meaning of the term, 20. 
keeper of, must be licensed, 139. 
regulation of, by municipal ordinance, 234-237. 
keeping of, unlawfully, a criminal offense, 389. 
keeping open on prohibited days, 393, 429-431. 
sales of liquor after lawful hours, 432. 
indictment for keeping a, 485. 
TITLE OF ACT, 
must conform to subject-matter, 64. 
TOILET PREPARATIONS, 
not classed as intoxicants, though containing alcohol, 8. 
TONICS, 
when classed as intoxicating liquors, 8. 708 
INDEX. 
TORT, 
malicious obstruction of application for license, 177. 
wrongful seizure or conversion of liquors, 244, 245. 
cause of action under civil damage laws, 281, 304-314. 
joint liability of vendors, 299. 
plaintiff can havb but one satisfaction, 300. 
defenses, 315-318. 
pleadings, 319-322. 
damages, 323-326. 
evidence, 327-337. 
TOWN, 
action by, under civil damage laws, 290. 
TOWN AGENTS, 
appointment and character of, 204. 
powers and duties of, 205. 
negative allegation as to, in indictments, 449. 
TRANSFER, 
of liquor license, by act of parties, invalid, 130. 
by authority of statute, 135. 
TRANSPORTATION, 
of liquor, from one state to another, 71. 
of liquor, illegal, arrest of person engaged in, 350, 363. 
as a criminal offense, 394. 
indictment for, 488. 
evidence of, 530. 
TREATING, 
criminal liability for treating a minor to liquor, 421. 
TRESPASS, 
for wrongful conversion of plaintiff's liquors, 244. 
TRESPASS ON THE CASE, 
proper form of action under civil damage laws, 281. 
TRIAL BY JURY, 
constitutional right of, 62. 
not demandable in proceedings to revoke license, 194. 
in criminal prosecutions under liquor laws, 545. 
competency of jurors, 546. 
TROVER, 
for wrongful taking of liquors, 244. INDEX. 
709 
"TRUSTING," 
for price of liquor, statutes against, 255. 
U. 
UNIFORMITY, 
in taxation under the liquor laws, 109. 
in delegation of police power to cities, 219. 
UNITED STATES, 
citizens of, rights and privileges, 48, 79, 82. 
license from, gives no rights as against prohibitory law, 87. 
license from, nature and effect of, 113, 125, 126. 
laws of, prohibiting the introduction of liquor into the Indian country, 395. 
prohibitory liquor law for Alaska, 396. 
license from, as evidence in liquor prosecution, 509. 
UNLAWFUL SALES, 
See Sale of Liquor. 
V. 
VENUE, 
allegation of, in indictments in liquor cases, 462. 
proof of, 516. 
VERDICT, 
in prosecutions under liquor laws, 547. 
VERIFICATION, 
of complaint for search-warrant for liquors, 355. 
VESTED RIGHTS, 
none conveyed by grant of liquor license, 128. 
VINOUS LIQUOR, 
meaning of the term, 5. 
VOTE, 
on local option election, 97. 
for repeal of local option law, 106. 710 
INDEX. 
w. 
WARRANT, 
to search for liquors illegally kept, 356. 
description in, of place and property, 357, 358. 
execution of, 359. 
what property may be seized, 360. 
officer's return to, 361. 
arrest or seizure without warrant, 363. 
in criminal prosecutions under liquor laws, 541. 
WHISKY, 
judicially known as an intoxicating liquor, 12. 
is neither "vinous" nor "malt" nor a drug, 12. 
indictment need not allege it to be intoxicating, 469. 
WHOLESALE, 
delined, and distinguished from retail, 23. 
dealers, required to be licensed, 140. 
criminally liable for sales at retail, 414. 
WIDOW, 
action by, under civil damage laws, 283. 
death of husband as ground of action, 310. 
WIFE, 
action by under civil damage laws, 283. 
injuries for which action lies, 306-312. 
giving notice not to sell to husband, 314. 
criminal liability for illegal acts of, 374-376. 
evidence to charge husband for sale by, 510. 
WILSON LAW, 
enactment of, 76. 
constitutionality of, 77. 
operation and effect of, 78. 
WINE, 
ranked as intoxicating liquor, 5. 
not a "spirituous" liquor, 5. 
from other states, illegal discrimination against, 44. 
WINE-GROWERS, 
exemption of, from license laws, 411. 
WITNESSES, 
competency of, in liquor prosecutions, 492. INDEX. 
711 
WOMEN", (See also Married Women,) 
signing petition for local option, 93. 
when to be counted in ascertaining majority consenting to license, 161. 
employment of, in saloons, prohibited, 237. 
actions by, under civil damage laws, 283, 286. 
WORDS AND PHRASES, 
See Definitions. 
WEST PUBLISHING CO., PRINTERS AND STEREOTYPERS, ST. PAUL, MINN.