The Leavenworth weekly times., 1875-02-04

cd from the stock kept in such store, and is
not required to obtain license from the
authorities Of each city or county in which
contracts are made therefor by such agents.
All the justices concurring.
OPINION.
By the Cout. Brerner, j.
This action was originally brought by
the defendant in error before Justice of
the Peace, to recover money judgment
against the plaintiff in error on an accepted
draft and a promisory note.
The plaintiff in error answering by ad-
mitting that he accepted the draft and
made the note, but claimed that they were
both without consideration, being for in
toxicating liquors, sold on credit; that the
contracts by which the Liquors were sold
were made in the city of Topeka, and the
defendant in error (Gillett) had no licence
at that time from the city of Topeka, TO sell
intoxicating liquors. Upon this issue The
case went to trial, and the Justice rendered
judgment against Haug for the full amount
OF the note and draft.
Haug then appealed to the District
Court OF Shawnee county, and the case
came for trial at its June term, 1878, and
WIS thic CbuEt tIt tNlucHtS
and admissions of the parties, made in open
court, a jury having been waived by the re-
spectiye parties, on consideration whereof
the court found for the plaintiff (Gillett),
and rendered judgment for the plaintiff
(Gillett) against the defendant (Haug) for
the sum of S292, to which Haug accepted,
and was given 30 days to make a case for
the Supreme Court, which time was after
wards extended by the court TO October ii
1873.
1t appears from the testimony that Gillet
was a wholesale liqucr-dealer in the CITY of
Leavenworth, and had a license from the
Mayor and Council OF that city, TO sell
liquor in any quantity, except by the dram.
but had none from the City OF Topeka; that
the orders for the liquors were given by
Haug in his saloon, in the City of Topeka,
to Gillett or some agent of his that the Or
ders were taken to Gillett's store in Leaven-
worth, the goods therefor eelected from his
stock, and shipped TO Haug by rail to To-
peka, the latter paying the freight. Was
there error in the ruling of the District
Court, and were the note and draft void as
given in consummatiOn of a contract prohib-
tied by statute The statute claimed TO have
been violated is Sec 3 of the Dram-Shop
Act, which forbids the sale of liquor by 'any
person without taking out and having a
license as grocer, dram-shop keeper, or tavern
keeper" and il is insisted that the sale was
made in Topeka, where ii is conceded Gil
lett had no license, and that under the laws
of Kansas any one having license to sell
liquors can only sell them
within the limits of the city or township
granting him the license"
The proposition involved in this case is
that wholesale liquor dealer,
having stock of goods, and conducting
business in city, from whose auth
critics he has received license,
cannot send out agents and take orders
for those goods elsewhere than in
such CITY, without first obtaing a license
from the authorities OF each city or county
in which those orden are taken. The prop
osition is bread one, and the language of
the statute should be clear, before such an
is imputed 10 the legislature.
The legislature may suppress the liquor
traffic, altogether, or it may impose such re-
As ii deems wise. 1t may restrict
the sale to the county, city, or, even the
building, and forbid the making of any
contracts therefor, outside thereof, and it is
the duty of this court simply to determine
what restrictions ii has imposed. Its enact
ments are, however, 10 be construed in the
light Of the general usages Of society and
business. The business of wholesale
dealer is carried on extensively, generally,
by agents-traveling men, As they are called
who visit the different towns, and solicit
orders. To recognize and license such n
business, and at the same time cut off one of
the ordinary methods of carrying it on,
while it is within the power of the legisla-
ture, should also be within the clear mean
ing of the enactments. Again, the statute
is penal, and as such is 10 be strictly con-
strued. Only those things are forbidden
which are plainly within its terms. Coun-
sci claims that party licensed, may sell
only within the limits of the county or city
granting the license.
But where was this sale completed?
The contrac: therefor was made in To-
peka. But did any title pass before the
goods were selected and separated from the
whole stock2 Clearly not, and therefore
the sale was not completed until then.
The goods were separated and selected at
Leavenworth, and there delivered to the
carrier, to be by him forwarded to the pur-
chaser.
At Leavenworth, then, the sale was COM
pleted, and there Gillett had a license
Bancher VS.. Warren, 33; n. Ham, Is3
BARLEY vs.. Planted, 81; \. Ham, 436. Nor
can this be deemed shift or device to
eyade the provisions of the Act. Gillett had
one license, and that at the place where his
store was kept. BY the first section of the