The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-04-27

IHat IuFtneF actlOn Is TO De taken ~
the case Of the State ex rel G. A. r.
FfnlaNson VS.. James German. city
clerk of East Grand Forks. was the
announcement made today. 1t IL al
legged that the supreme court did not
render a decision on the vital point in
the case.
In deciding the a the supreme
court did not determine whether or
not in the case of an emergency and
the services of a special attorney or
special counsel We're necessary wheth-
er the city water and light commits
sion had the authority to employ such
services.
An application will be made to the
supreme court for a re-argument OF
whether or not in the case of such an
emergency when the city attorney re-
fused to act. whether the commission
had the right to secure another attor-
ney.
In case this application is refused,
another actio nwill be started to take
the case again to the supreme court.
State eX rel. G. A.. r. FinlaysOn, APP
pellant. IS. James German. as city
clerk. etc.. respondent.
l. The water. light, power and build
ing commission of the city of East
Grand Forks, being a governmental
department of the city, the city at
torney is legal adviser. and 1t has no
express or implied power to employ
it's W attorney. thereby creating a
liability against the city.
2. Conceding. without deciding that
an emergency may give power. where
none otherwise exists, it is held that
when the commission employed the
attorney for whose services the city is
sought TO be liable, no emergency ex-
listed. The commission performed its
duty and was under no legal obliga-
ton to assist a private person to en-
froce a claim audited and ordered paid
by it against the city.
Affirmed. Holt. j.
The decision of the court as handed
down yesterday is as follows:
Appeal from an order of the district
court of the county of Polk discharg-
Ing the relator. on habeas corpus.
from the custody of the appellant as
chief of police of the city Of East
Grand Forks, which is a city organic
cd under the laws 1895. Oh. 8. The
city. byt its common council, enacted
an ordinance p%urporting to license
and regulate the sale of Intoxicating
liquors. within the corporate limits,
sold at wholesale. that is. in quanti-
ties greater than five gallons. The re-
lator was charged with a violation of
the ordinance, arrested and detained
by the appellant by virtue of a war
rant issued upon such charge. There
upon the writ of habeas corpus issu-
ed.
The sole question here to be decided
is: Was the city authorized t. license
the sale of Intoxicating liquors at
Wholesale? If it was, the ordinance
is valid and the order discharging the
relator must be reversed; but If the
city did not have such authority, the
order must be affirmed. The appel
liant claims that such authority was
conferred by Laws 1895. CHI. 8, S. 1876,
which, so far as here material, is in
these words:
The city council shall have power
by ordinance. not inconsistent with the
constitution and laws of the state and
of the United States as follows:
ITO license III regulate the sale of
Intoxicating liquors and the city coun-
Gil may designate within the territory
in the city more particularly devoted
to trade and manufacture than to
residences certain definite limits to be
known as patrol limits wherein intox-
icating liquors nay be sold"
Many of tn e~contentions of the APP
pellant may be conceded without dis
cussing them. 1t may be conceded
that the charter provisions quoted,
literally construed without reference
to other statutes and the policy of the
state. confer upon cities organized UNI
der Laws 1895. Oh. 8, authority to IL
cense and regulate the sale of intoxi-
eating liquors. and that the legisla-
ture nay if 1t sees fit confer such
power upon municipalities. although
such sales without a license are not
prohibited by the general laws of the
state. which make provision for H.
censing only the retail business Of
selling intoxicating liquors. 1t may
also be concmeded hat the custom,
of manufacturers of intoxicating IL
quors of establishing warehouses. in
the municipalities of the state, from
which they sell and deliver directly
to consumers their bottled wares in a
greater quantity than five gallons, is
liable. if not regulated. injuriously to
affect public. interests. The question.
however. is not h necessity or pro-
priety of licensing the sale of intoxi-
eating liquors at wholesale, a legisla.
tive question. but whether the owe
to license and regulate such whole
sale business has been conferred upon
the municipalities Of the state
The general terms of the statute
here in question authorizing cities or
ganized under 1t to license and regu.
late h sale of intoxicating LIQUORS,
must he construed according to the
intention of the legislature as gathered
from the whole Legislation of the
state dealing with the subject of liz
censing the sale of intoxicating il
quors. and h practical construction
given to 1t. from its inception. The
legislature from territorial days to the
present time. has for the purpose Of
licensing and regulating the sale Of
Intoxicating liquors classified such
sales. on the basis of the quantity
sold. Chapter 20. Rev. st. 1851, pro-
hibited and punished all sales of in.
toXicating liquors in quantities less
than one quart without e.. license
therefore, but no license was required
for sales exceeding In quantity one
quart. In 1853 the quantity was in
creased to five gallons. Public SITS. G.
is. s. 90. In the revision of 1866 the
classification. was continued and sales
In quantities less than five gallons
without a license were prohibited, but