Wessington Springs herald. (Wessington Springs, Aurora County, Dakota [S.D.]) 1883-1891, 1890-12-26
THE LAW SUSTAINED
SOUTH DAKOTA op,,
PACKAGE DECISION
Failure to Establish Num.ro,.
lions Makes the Seller AmenabI. - 90
state Lsw-Hcayy Verdict Aea,n.t w., .s
Dakota Insurance Company.

Dakota Insurance Comn.nv 'he
PIERRE, s. D., Dec. Coin the COLI
grated original package case of the stat t
OF south Dakota VS.. Geo. 81. Chanma,,
ana william Noller, on a writ of error
tne supreme court has rendered a do
cision adverse to the defendants. This
was an action wherein the defendants
were informed against in the county
court OF Lincoln county for KEEPING =
common nuisance by selling Intoxicating
liquors as beverage, and willfully and
uniaW1ully permitting persons to resort
TO rooms and buildings where such liz.
uors were sold. Before the Commence
ment OF the trial. defendants applied
Ior a change of judges on the ground
cnat the judges were preiudiced against
inc defendants, and the application
was supported by the afiidavits of seven
other cltlzens OF Lincoln county. The
court denied the application, stating
mat the affidavits set out no facts upon
whlch to predicate the alleged preindice
but were simply expressions of conclu,
sion' "A jury was empanelled, a trial
had, a verdict OF guilty rendered against
inc oelendants, and each was sentenced
10 pay me OF $3.50 and to be impris-
oneu ior siAty days. During the trial a
great number OF objections were inter-
evidence. and rulings of the conrt nnon
the law. Upon the right of the defend-
ah's " nave change OF judges on the
ground of prejudice, the supreme court
says:
"Ihe statute does not allow the defend
ant to change the judge unless the court il
satisfied that prejudice and bias is so great
that an impartial trial cannot be had. and
that a change must not be made on more
than one affidavit OF defendant, even though
supported by others. Such facts and CIR
cumstances 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 a
change Is required to be madc.''
The fact of the sale of Intoxicating LIQUORS
by the defendant was clearly established by
evidence, but the effect of our state consti-
tuition and the laws regulating the sale of
intoxicating liquors was alleged by the de-
PENDANT to have no effect on them because.
they were selling in original packages.
After review of all the evidence in.
the case the court, in 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 case of Lusy VS..
Hardin, commonly known as the original
package case. they must show at first
that they are foreign importers or agents
of a foreign importer of beer or liquors.
Second, that 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 importation by
the original unbroken package in which il
was imported. Fourth, that they are moi
making their house of business tipping
concern or rendezvous of persons, bring.
ing it within the police power of the
state to declare it nuisance. All these
facts must be fully established by the
defendants in order to make the trans.
action legitimate under the decisida
The failure to establish any of these
propositions make seller of intoxicat.
ing liquor amenable to tho 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 one state to
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 have
failed to establish such facts as will en-.
title them to any immunity from the
penalties of the state law and order that
the Judgment of the court be enforced.