The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1911-04-18
LOWER COURT IS REVERSED.
From first page
St. Paul v Troyer 8 Mimi. (Gil.)
200.
State v Orth SO Mimi. $50.
N4oto Don1 Al M;no on

state Benz Al MINI. 81.
In State Ortiz, where the ques-
ton was the construction of the
laws of 1887, which prohibited the
sale Of Intoxicating liquor without
license, without stating any Iimi-
tation as to quantity. the court says:
Prior to 1887, the policy Of the
state has always been, as we believe
it has been in most of the states, to
require license only for sales in
small quantities, usually for con-
sumption by the purchaser at the
place where sold; to control and reg
ulate drinking and drinking places. /"
And the court construes the law Of
1887, so as not to repeal the former
limitation requiring license only for
sales in less than five gallon quaint
ties.
In State v Benz, the court says:
1t has always been the settled pol
icy of the state, with respect to the
traffic in Intoxicating liquor. to in
tervene with its power Of regulation
and control at that point where the
business comes to directly affect So
ciety-that is. in sales to the con-
sumer-while it has not sought to
interfere with other and merely
commercial transactions. This pol
icy has been expressed and carried
into effect, not by legislating direct
ly and in terms concerning sales to
consumers, but by the adoption of
classification or designation, (sales
in less quantities than five gallons)
to which alone the restrictive and
prohibitory provisions of the statute
have been applied; which class was
deemed likely to embrace, in gener-
al, purchases for immediate con-
sumption, and not to embrace, in
general. other and merely CONNER
cial transactions. To this class of
sales-in less quantity than five gal
lons-has the legislation of the state
been directed for more than a quar-
ter of century prior to the enact
ment Of 1887"
1t il held that this policy of the
state continues. That the quantity
is the est and sale of less than FIVE
gallons, even by wholesaler, is pro-
hibited. That the five gallon guam
tity is the statutory measure as to
whether the sale is wholesale or re-
tail, and the measure as to whether
the sale is prohibited by law or not.
In the early case of....St. Paul v
Troyer, the court in view of this
general policy Of the..law, held that
an ordinance prohibiting sales with
out license, although silent as to
quantity, and in terms applying to
sales in large as we'll as small guam
tity, would be construed as applying
to retail sales in less quantity than
five gallons only.
Such being the laws of the state
at the time the charter of the city
was granted, and there has been no
change in that respect since, it would
seem to be clear that there was no
intention on the partsof! the legisla-
ture to empower the city to prohibit
the sale Of liquo. in larger guam
tity than five gallons, in an ordinary
commercial transaction. which is
what the evidence shows in this
case. And the charterl provisions
must be construed as limiting the
power Of the council in reference to
sales of Intoxicating liquor to the
power to license, regulate and re-
strain sales in less quantity than five
gallons.
AS applied to sales in less quantity
than five gallons the ordinance in
this case might be upheld. because q
license is purely a matter of defense
and one having no license would
have no cause to complain because
the ordinance did not except from
its operations licensed dealers. But
it is not here necessary to decide