City of El Dorado v. Beardsley , 53 Kan. 363 ( 1894 )

The opinion of the court was delivered by

Hobton, C. J.:

I. The contention that the subject-matter of the ordinance is not clearly expressed in its title is not tenable. The ordinance was not enacted for the purpose of regulating the sale of intoxicating liquors in the city of El Dorado. Under the constitution, the manufacturing and sale of intoxicating liquors for medical, scientific and mechanical purposes are expressly authorized. Under the statute, permits may be taken out by persons authorized to sell intoxicating liquors for the excepted purposes. The ordinance prohibits absolutely the sale or barter of any spirituous, malt, vinous or other intoxicating liquor in the city of El Dorado, except by persons having permits, for the excepted purposes. The city has no authority to prohibit persons having valid permits from selling. The ordinance does not purport to adjust, but to forbid; it does not purport to regulate, but to prohibit. (City of Topeka v. Zufall, 40 Kas. 47; City of Topeka v. Myers, 34 id. 500.)

“The prohibitory amendment and prohibition act do not anywhere, by implication or otherwise, repeal or annul the' power of cities to punish persons for selling intoxicating liquors in violation of law, in violation of the city ordinances, and without having any license or permit therefor.” (Franklin v. Westfall, 27 Kas. 614-619.)

II. The second alleged error cannot be considered, because no error of law was assigned in the motion for a new trial as one of the grounds thereof, and the motion did not in any way refer to the refusal of the court to require the plaintiff to elect. Further, no motion was made by the defendant to compel the plaintiff to elect, at the close of the testimony of the prosecution. This motion was not made until after the defendant had introduced several witnesses. Indeed, it appears that the motion was only made just before the defendant rested.

III. There was no prejudicial error in refusing to give the instruction asked for, because the court charged the jury as follows:

“Every person who procures, counsels, aids or abets another in the commission of a misdemeanor may be prosecuted and punished in the same manner and to the same extent as the person actually committing the unlawful act; and in this case, if you are satisfied by the evidence, beyond a reasonable doubt, that some person other than defendant sold intoxicating liquors within the city of El Dorado since the 16th of June, 1893, that such person did not have a permit therefor, and that defendant procured, counseled, aided or abetted such person in so selling intoxicating liquors, you should find the defendant guilty.”

The evidence introduced upon the trial by the witnesses tended to show that in June, July, and August, 1893, the defendant lived in north El Dorado, near the' Missouri Pacific track, keeping a hotel or boarding house; that in June several boys went through the house into the barn back of the house and obtained a number of bottles of beer; that the defendant was standing in the house when the boys went through, and that after they obtained the beer, one of them went back into the house and laid down upon the table $4.50 for the beer; that at the time Beardsley was at the door of the room where the money was left. Another witness, who boarded in August, 1893, at the house kept by Beardsley, testified “that he frequently purchased whisky in the house from Mrs. Beardsley; that at one time she ‘told him she did not know what to charge for the liquor, and for him to go to her husband, the defendant, and ask the price.’ In accordance with her direction, he went to the defendant, who gave him the price of the liquor, and he then paid Mrs. Beardsley the amount.”

The instruction given was sufficient, upon the evidence introduced.

IV. There was no error in giving the instruction objected to, because, under the ordinance, no person not having a permit to sell intoxicating liquors in El Dorado for the excepted purposes had any authority to do so after the publication of the ordinance.

V. Under the statute of the state conferring power upon cities of the second class, and the ordinance of the city of El Dorado, the police court of that city has jurisdiction to try and convict a person of selling intoxicating liquors for other than the excepted purposes, and to fine such person for each offense in the sum of $100 and with imprisonment in the city prison for 30 days.

VI. A complaint or information for such an offense or other misdemeanor may contain one or more counts. A justice of the peace — and, we think, a police court, or any other court — may try several offenses or misdemeanors of the same kind, at the same time, upon the same complaint, and punish for each offense or misdemeanor separately. (In re Donnelly, 30 Kas. 424.)

The judgment of the district court will be affirmed.

All the Justices concurring.