The Madison daily leader. [volume] (Madison, S.D.) 1890-current, 1899-09-02
OUT ON FIRST.
naloney Arraigned
Under the City's MUS
ance Ordinance.
Holdridge Declares
the Ordinance Illegal
and Discharges De-
fendant--POintS
of Law.


claees the place of business a NUS.
auce and provides for closing it up which
in this case was done, came up for hear
ing before Justice Holdridge last even.
ing and was concluded this morning.
City Attorney Soper appeared Tor the
prosecution and made a stubborn tight
for the validity Of the ordinance as the
latter was a pet measure OF the city ad-
ministration. The defense was argued
by A. F. Orr, Esq, OF Sioux Falls, who
attacked the validity Of the ordinance
and obi cted to the introduction of other
evidence. The court held the ordinence
to be invalid, sustained the objection
and dismissed the defendant, in the
following written opinion which will give
the points OF the case in full:
"As this is q case in which the citizens
of Madison are interested, in order that
my position may be understood, l prefer
to reduce it to writing.
II. The legality Of a city ordinance is
called in question. 1t is decisive OF the
case before us. Is It proper for NE to
decide that question, or shall I assume
that the ordinance is legal? I believe
that = justice should leave to a higher
tribunal the constitutionality Of the acts
Of the state legislature. With city or.
dinances it is different. The city JUS
tice and the police justice are a coord,n.
ate branch Of the city government. 1t
is not only proper but it is the impers-
tive duty Of the city or police justice to
decide upon the legality Ut city ordin-
ances, when the question is squsreiy
brought before Thorn. TIE ordinance
under which the defendant was arrested
and is now or trial, provides:
"'That any room, building or other
enclosure within the corporate limits OF
the city OF Madison, S. D., where vinous,
spurious, malt. brewed, fermented or
other Intoxicating liquors are sold at re.
tail to be drank .n the premises where
sold. or to which persons are in the hab.
it OF resorting for the purpose OF drink
ing the aforesaid Intoxicating liquors, is
hereby declared to be q public nuts.
ance.'
Section , OF the ordinance provides
that ANY person found guilty of keep
ing and maintaining such nuisance,
shall be punishable by q tine OF not less
than fifty dollars or more than one hun.
dred dollars
Section 4 Of said ordinance provides
that 1T any persouis arrested for viola
ting said ordinance, the justice shall en-.
ter an order az = part OF the judgment
OF the court, adjudging the room, build.
ing or enclosure described In the CON-
plant to be q public nuisance, and di.
rect the officer having possession thereof
to keep and maintain such possession.
and keep the same securely closed and
fastened 30 as to prevent all entrance to
the same,' etc.
ut will be noticed that the judgment
OF the justice is one and indlvisable. In
addition to imposing a fine, the justice
must enter as q part of the Judgment
that the building sht.ll be closed. The
question, then, Is not whether the city
council can make any law furnishing the
sale OF Intoxicating liquors in the city of
Madison, but whether they had the pow.
or to pass the above ordinance. think
not. In MY opinion the law OF 1897 in
reference to the sale OF Intoxicating
liquors Is o in force ia this state.
Two circuit judges have go decided. It
10 the opinion of the ex.attorney general
OF this state and OF the present a~ttornev
general. Their reasons and authority l
believe are sound. The law OF 1890
which was in force until 1897 made the
place where Intoxicating liquors were
sold q nuisance. The law OF 1897 which
repealed the law Of 1890 did not make
such place q nuisance. There ia no law
on our statute books making the place
where intoxicating liquors are ILLEGALLY
sold a nuisance. There is no common
law making such place q nuisance
Where does our city council get it, au.
thority to 60 beyond the acts OF the leg.
'slsture or the common law?
"Ihe only possible authority that can
be cited in this state is section GO. article
o chapter 81, laws Of 1890, which states
In enumerating the powers of q city
council that they shall declare what
shall DO nuisanoes.' Does this mean
that they can arbitrarily declare q
and everything they desire q nuisance?
Justice Miller Of the United States
supreme court says in 10 Wallace. page
497, But under the mere declaration Of
the city council Of Milwaukee that q
certain structure was an encroachment
or obstruction does not make it %. nor
would such declaration make it a nuis-
anoe unless it in fact had that chsrsc.
ter. 1t is a doctrine not to be tolerated