The Black Hills union. [volume] (Rapid City, Pennington County, Dakota [S.D.]) 1889-1904, 1890-12-25
LAW SUSTAINED.
~ .tlI.3 -
SOUTH DAKOTA ORIGINAL
PACKAGE pEclsloN.

to Estahiish Numsrous rropost.
lions Maksa the sell.f AmsnAble 10 thS
state Law-Heayy Verdict ASainSt the
Dakota 1nsurance Company.
p1ERHr, O. b, Dec. 3O.-In tho coils
brated original package case Of the state
Of South Dakota VI. Geo. 81. Chapfnat
and William Noller, on . writ Of error,
the supreme court has rendered d de.
cision adverse to the defendants. This
was an action wherein tie defendants
were informed against In the county
court of Lincoln county for keeping .
common nuisance by selling intoxicating
liquors as . beverage, and willfnlly, snd
unlawfully permitting persons to resort
to rooms and buildings where suchsliq.
tuors wefeaftUid. Before the commence
ment Of the trial, defendants applied
for a. change Of judges on the ground
TINT the judges wers prGjadlced against
the Defendants, and the application
was supported BY the afadavits OF sevon
other citiscns Of LINCOLN county. Tho
court denied the application; stating
that the afidavits set out no facts upon
which to predicate tho alleged prejudice,
but were simply expressions of Q cOnclu-
sion. A jury was e%mpancllcd, . trial
had, q verdict OF guilty rendered against
tho defendants, and each was sentenced
to pay . fine Of $3.50 and to be impris-
oncd for sixty days. During the trial .
great number of objections were inter-
posed TO the admission and rejection OF
evidence. and rulings Of the court upon
tho law. Upon the right Of the defend
ants to hive . change Of judges on the
ground of prejudice, the supreme court
says:
1.-THE statute does not allow the defend
n to change the judge unless the court 10
satisfied that prejudice and bus Is so great
hot q change must not be made on more
than one affidavit Of defendant. even though
supported by others. Such facts and cir
cnmstances must be proven by affidavit. or
other intrinsic testimony, as show the exist
ence OF a bias and prejudice on the part Of
the Judge against the defendant before .
change lie required to be made"
The fact of the sale of Intoxicating liquors
by tho defendant was clearly established by
evidence, but the effect Of our state coneti.
tuition and the laws regulating b sale OF
intoxicating liquors was alleged by the de-
fendapt to have 10 effect on them because
they were selling In original packages.
After o review Of all tho evidence IN
the case the court, in q we'll considered
and elaborate opinion, holds that for the
defendants to receive immunity under
the decision of the supreme court of the
United States in the q Of Lusy vs..
Hardin, commonly known as the original
package case, they must show at first
that they arc foreign importers or agents
Of o foreign importer Of beer or liquors.
Second, thnt as such agents they re-
ceived an importation of beer or liquor
from another state or foreign country.
Third, that they are as such importer
or agents selling this importatioQs by
the original unbroken package In which II
was imported. Fourth, that they arc not
making their house Of business q Tipping
concern or rendezvous of persons, bring
ingit within tho police power OF the
state to declare 1t q nuisance. All these
facts must be fully established BY the
defendants In order to make the trans
action legitimate under the decision.
The failure to establish any Of these
propositions make q seller of intoxicat-
ing liquor amenable to the state law.
The court further holds that when bot
ties of whisky or beer, each sealed up In
paper wrapper and closely packed to.
gether in uncovered wooden boxes fur
nished by the importer, and these
wooden boxes marked to the address OF
the agent and shipped from ono state "
another, the wooden boxes and not the
bottles constitute the original package
within the meaning Of the decision Of
the supreme court Of the United States
The court finds the defendants hav,
failed to establish such facts as will on
title them to any immunity from thu
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