Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-02-13

southern district of Iowa; n also for the
eastern district of Arkansas. The Opin-
ions are respectively by Judge Shiras and
Judge Caldwell.
They are reported in the 43 Fed. Rep.
pages 653 and 76l. We deem it unneces-
the reasoning of these cases. They are
already familiar to the profession. 1t will
suffice to state that we concur in the con-
cluslonS reached in the cases cited. and
hO!d that the Wilson is a valid enactment
and Is not q delegation, but ali eXertion of
the Legislative power of congress. Such
legislation only indicates the time and
the event which determines when intOXi
eating liquor ceases to be an article of
interstate commerce and becomes mingled
with the mass of property in the state and
thereby is subject to local control. We
hold that the prohibitory law of the state
as originally passed could not have been
enforced against any imported liquor
while the same remained within the pro-
lection Of the federal authority and that
in this respect the law continues un-
changed. 1t cannot now be enforced as
against any imported liquor which has not
passed beyond federal protection.
a majority of this court is of the opln-
ion that both the Wilson law and the pro
hibltory law of this state are valid enact
ments and that the final arbitrator of the
"N''h''A oiiS u VI gIlC
States-WilI SO rule at a day not distant:
and we are unanimous in not viewing this
case as one in which a subordinate court
should give the benefit of the doubt, if
any, in favor of the conStitutiOnality of
the laws in question. TO do so is only to
observe a firmly settled rule of statutory
construction. Cooley on constitutional
limitations, 220.
We shall consider only one further uues-
ton: 1t arises out of the fourth conclusion
of law as found by the district court,
which is as follows: "That to justify the
court in %adjudging the premises a public
nuisance, it must be shown by clear posi-
tive evidence that said premises were used
by said defendant Fraser as a resort for
drinking Intoxicating liquors, and that
such liquors were so drank on said premi-
SEES by and with his knowledge and con-
sent" This is error. Section 10 of the
act declares that "all places where in
toxicating liquors are sold, bartered or
given away, in violation of any of the
provisions of this act, or where persons
are permitted to resort for the purpose of
drinking Intoxicating liquors as a beyer-
age, or where Intoxicating liquors are kept
for sale, barter or delivery in violation of
this act are hereby declared to be common
nuisanceS." 1t is quite plain from the Ian
guage of the statute above quoted that
Fraser'S knowledge and consent as to the
ulilhliS vi HIS PROMISES Was UOL all eSSen-
tlal element. The place where the liquor
was sold in violation OF the statute was UNI
der the terms OF the statute a common
nuisance, whether such drinking was or
was not permitted by Fraser.
The state of South Dakota substantially
copied the thirteenth section of the prohi-
bition law of North Dakota and the su-
preme court of tnat state has rece ntly con-
strued the same language and reached the
same conclusion; State w.. Chapman, Al N.
W: Rep All. In the opinion, page 4l5, the
following language is used: ut is the
illegal sale, or the illegal keeping of intoX-
icating liquors in a place that makes
it a common nuisance, and when either
one or both is proven the otfense is made
out. The statute also provides that a place
where persons are permitted to resort for
the purpose of drinking Intoxicating
liquors as a beverage is also a common
nuisance"
1t follows from tine views above *.
pressed that the Judgment of the court
below Diminishing the action must be re-
versed and a new trial granted. 1t is SO
ordered.
All concur.