Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1890-08-28
LEGAL and POLITICAL,
What the Effect of Judge Roses
Recent Decision Will Prob
ably be.
Probability that the Original
Package Business will Con-
tinue Indefinitely.
The State Veterinarian Siaugh-
ters Red River Valley CLAN
Ierel Horses,

The full text Of Judge Roses decision
in the Barnes county original package
case was printed in Thursdays Alert. In
view Of the probability that tho original
package business may legally be carried
on until the next legislature enacts laws
to prevent 1t, the decision is Of general
interest IN both Dakotas inasmuch as it
defines the restrictions under which tho
business might lawfully have been con-
Quoted prior to the passage of the Wilson
original package bill. II it be hold that
there is now no state law to. prevent the
Importation and sale Of liquors in origi-
nal packages then it is plain that this
decision defines the restrictions under
which the business may continue until
such a law Is enacted.
The title OF the case is the state
against John Bergreen. The defendant
is an original package dealer at Valley
City. The complaint alleged that the
defendant sold liquor in violation of Sec
ton l3 of the state prohibition law; that
the sales were made in smaller quanti-
ties than that in which the liquor was
received (sold in bottles and received in
cases of q bottles) and that the liquor
having been drank on the premises, his
place was, under that law. nuisance.
Tho defense contended that the statute
prohibiting the sale of Intoxicating
liquors in original packages was uncon-
stitutional and void when enacted and is
still a nullity. Judge Rose says on the
first point:
Congress having the sole power to
regulate commerce among the states, and
not having granted power to the states
to legislate prohibiting the Importation
and sale OF Intoxicating liquors, at the
time the Legislative assembly OF the state
OF North Dakota enacted the said act,
the state was without authority to pass
the act and the act was yoiC when passed
and imperative, IN SO far as 1t prohibits
the importation and sale Of Intoxicating
liq uors.
Although deciding that the statute
was unconstitutional at the time of it's
passage,the judge declines to pass on the
claim that it is still nuliity, holding
that -...
The acts of the defendant, with which
be is charged in the complaint, were
committed before what is known as the
Wilson" bill was passed and hence that
law cuts no figure IN this case. As to
what effect that bill will have on the said
act 1t is not necessary to determine in
this case. will decide that question
when case is presented involving it.
The plain inference of the decision is
that the statute is still nullity. He de-
cl,les that before the passage Of the Viii
son bill the statute was unconsttution-
al. Then the only point remaining to
be decided is whether the Wilson bill
revived this dead statute and made it op-
erative. There is nothing retroactive on
the face Of that act and it would seem
to be clear that the statute in questlon.is
still nullity, as the defense claimed.
II the statute is nullity then there is
no state law against the importation and
sale Of liquor IN original packages, and
the business may be continued under
certain restrictions until the legislature
Of the state enacts law prohibiting it,
authority to do SO being conferred by
the Wilson law. What has been said
with reference to North Dakota applies
with equal force and effect to South Da-
kota.
Not the least important part of the
judges decision is his statement of the
conditions under which the original
package business might have been legally
conducted prior to the passage of the
Wilson bill. Keeping IN mind the ex-
trene probability that the business will
continue after the passage OF that bill
the same as before, the decision Of the
Judge is of great interest inasmuch as it
prescribes the restrictions which Will
probably be placed on the business. He
says:
While the states may not in the alb
sence OF congressional legislation legis-
late against the Importation and sale of
Intoxicating liquors, yet they may legis-
late in favor of regulating and control
ling, or prohibiting the sale of such with
in the state after the importation is con-
sumated, that is, after the Importer has
sold his liquor, and it has become part OF
the property of the state.
Now while the importer can import
his merchandise (beer) into the states and
sell such at any place therein, and may
keep place or house, in which to store
and sell it, yet as soon as he has sold the
beer and 1t has passed into the hands OF
the purchaser, and it has thus become
part of the property of the state und sub.
ject to its laws, he ceases to be an i'm
porter and becomes amenable to the laws
OF the state, in SO far as he invites and