#### State *vs.*Thomas O’Connor. Same *vs.*John Bauman. Same *vs.*Swan Youngren.

Argued June 15, 1894.

Affirmed July 13, 1894.

Nos. 8797, 8740, 8809.

Proprietor prima facie responsible for open saloon on Sunday.

Under the ordinance of the city of Minneapolis requiring saloons and places where intoxicating liquors are sold to be closed and kept closed on Sundays, the owner is prima facie responsible for such place being open on Sunday, whether he is present or not.

Conviction sustained by the evidence.

Evidence *held*sufficient to sustain a conviction.

Revocation of license is not punishment.

State v. Harris, 50 Minn. 128, to the effect that revocation of licenses under that ordinance is not punishment in such sense as to affect the Jurisdiction of the municipal court to try complaints for violating the ordinance, followed.

Appeal by defendant, Thomas O’Connor, from an, order of the Municipal Court of the City of Minneapolis, *Stephen Mahoney,*J., made February 5, 1894, denying his motion for a new trial after *194liis conviction oí the offense oí keeping his liquor saloon open on Sunday.

Appeal also by defendant, John Bauman, from a like order of- the same court made February 7, 1894, denying him a new trial after his conviction of a like offense.

Appeal also by defendant, Swan Youngren, from a like order of the same court made March 6, 1894, denying him a new trial after his conviction of a like offense.

*David F. Simpson*and *M. D. Purdy,*for the state in each case.

*Fred G. Cook, W. H. Donahue,*and *Davenport & Thian,*for the appellants.

Giufillan, C. J.

The prosecution in each of these cases, brought in the Municipal Court, was for violation of the ordinance of the city of Minneapolis regulating the sale of liquors, the specific charge in each case being that the defendant did not close and keep closed on a specified day, being Sunday, his saloon or place where intoxicating liquors are sold by the glass and drink. Each complaint alleged that on a day specified the defendant was convicted and sentenced in the Municipal Court for a similar offense, and that at the times when both offenses were committed the defendant was operating under the same license.

In one of the cases it is insisted that the offense was not proved, because it did not appear that the defendant was present when the saloon was open on Sunday.

The ordinance makes it the duty of the owner to close it, and keep it closed, on Sunday. The only excuse he could give for not doing so (conceding that it would be an excuse) would be by showing that it was open against his will, and notwithstanding all reasonable effort by him to> keep it closed. He is the master of the place, and *prima facie*responsible for its being open. Any other rule would make it in many instances difficult, if not impossible, to adequately enforce the ordinance.

The evidence in the Youngren case was sufficient to justify a finding that the saloon was open within the sense of the ordinance, even on an interpretation narrower than either its terms or spirit would permit; for the evidence would justify a finding, not only that it was open to the public, and for the business of selling liquor by the *195glass, but that such business was actually transacted. The point is not made in the other cases.

It is urged also in the Youngren case that to call for a revocation of the license held when the second offense was committed it must be the same license that was held when the first was committed, and that, we think, is so. But it is insisted there was no evidence of it, which is not so. It is conceded by appellant’s brief that it was admitted that defendant “is the proprietor and licensee.” It must have been the same license, for between the two dates — October 8 and December 17, 1893 — he could not have got a new one, unless he committed perjury in the affidavit required in the application for one, which must state whether the applicant has within one year been convicted of violating any provision of the ordinance, or unless the city authorities violated the provision of the ordinance forbidding license to issue to one so convicted within one year; neither of which can1 be presumed.

In the two other cases the point decided in *State*v. *Harris,*50 Minn. 128, (52 N. W. 387, 531,) that the revocation of the license is not punishment within the meaning of the constitution, so as to remove the case beyond the jurisdiction of justices of the peace, is again presented. We see no reason for reconsidering that decision. The license is revoked, not for punishment, but because, by violating the law of his license, the holder shows he is no longer a fit man to hold it.

The appellants’ briefs in those two cases insist that the ordinance; is repugnant to Laws 1889, eh.. 87, passed after the ordinance, in that the act requires persons holding licenses to sell intoxicating liquors, to close their places of business (hotels excepted) at 11 o’clock at night, and keep them closed till 5 o’clock in the morning, while the ordinance forbids any such licensed person to sell or dispose of any liquors, or permit them to be drank on the premises, between 12 o’clock midnight and 5 o’clock in the morning.

And then the brief proceeds to assail the act claimed to create the repugnancy as being unconstitutional and void because class legislation, malting a distinction between hotels and other places where liquors are sold.

Whether, in respect to the hours of keeping closed at night, there is repugnancy between the statute and the ordinance, such that the *196former operates to repeal the provisions of the latter, and whether the statute is obnoxious to the constitutional objection, we will determine when we have cases before us involving those questions.

It is enough for the cases we now have that there is no statute whose provisions are repugnant to those of the ordinance in respect to closing and keeping closed on Sunday.

Thefe are some other minor points made, but we do not deem them worthy of particular mention.

Orders affirmed.

Buck, J., absent, sick, took no part.

(Opinion published. 59 N. *W.*999.)