The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-01-02
DECISIONS OF THE
SUPREME COURT
Fronn Stark County.

v. Northern Pacific Railway Company,
defendant and appellant.
Syllabus: Action for injury sustain
ed by plaintiff in a wreck upon defend
ants line. Plaintiff had judgment; de-
PENDANT appeals.
1. The question of the suficiency OF
a release executed by plaintin to de-
PENDANT was one of fact for the jury.
2. Evidence examined and held
SUFFICIENT to justify the submission OF
the question OF the validity OF the re-
lease to the jury.
Appeal from the district court OF
Stark county: Crawford, J.
Affirmed. Opinion of the court by
Burke. J.
Watson & Young, and E. T. Conmy.
of Fargo, attorneys for defendant and
appellant.
Casey & Burgeson, of Dickinson. at
torneys for plaintiff and respondent.
From Morton County.
]. Blumardt and eighteen others.
plaintiffs and respondents. VS.. Chas.
Mcdonald, as sheriff, defendant and
appellant; w. M. Fetter and fifty-ohe
others, plaintiffs and respondents, VS..
Chas. Mcdonald, as sheriff, defendant
and appellant; Jacob Metzger and
twenty-five others. plaintiffs and re-
spondents, VS.. Chas. Mcdonald, as
sheriff, defendant and appellant.
Syllabus: The complaints of the
many plaintiffs allege that defendant
as sheriff seized eighteen, f1fty-two,
and twenty-six barrels of wine accord
ing to each case. one barrel for each
plaintiff, that they had ordered and
that had been shipped for them in a
carload shipment from California to
Of oh fhnf (Nvs
purposes of convenience and to save
transportation charges the liquor had
been shipped in bulk as one shipment
instead of O barrel shipment to each
plaintiff. That plaintiffs allege in their
complaints that they had paid their
pro-rata share OF the freight and had
received the wine from the common
carrier and to save storage charges
had 1t taken from the depot and had
stored it in a building in Hebron from
which it was to be taken as desired
wine: and all of said carload of wine
except said eighteen, fifty-two and
twenty-six barrels had been taken by
the parties by whom 1t was ordered
before said eighteen. fifty-two and
twenty-siX barrels were seized by the
defendant" The complaints further
allege that plaintiffs and none of
them ordered said wine or had it
shipped into this state for the purpose
of sale, barter, gift or exchange as a
beverage, but solely and only for use
their respective homes" that said
plaintiffs have an equal interest in
the entire shipment OF said wine
and the eighteen, ffty-two and twen-
ty-six barrels respectively remain
ing are the joint property OF the plain
tiffs." To this complaint defendant de-
INJURED.
Held-That Notwithstanding plain
tiffs' statement in their complaint that
the wine was not brought into this
state in violation Of law and that 1t
was to be used only by themselves
and their families at their respective
homes" yet, the complaint alleges that
the many plaintiffs jointly own
said liquor and have stored it
for further division and distribution
among themselves. one barrel to each
plaintiff. This is the equivalent OF
admitting that they have stored intoxi-
eating liquor at place "for distribu-
ton or division among the members
of the association, and admits the COM
mission of crime under section 1922
c. l.. 1913.
2. The storage OF intoxicating
liquors by an association or combine
ton Of persons. as were the plaintiffs,
with intent to divide or distribute such
liquor among themselves is q criminal
offense under said statute.
8. That the liquor to be received
upon such a division was intended for
lawful use Is immaterial. as the
statute strikes at the keeping of a
place through a combination of per-
sons where liquors are stored for flu
ture distribution between them. It is
the possibility OF the liquor thus being
obtained by distribution between per-
sons associated together even temper
arily, that the statute prohibits.
4. That the seizure was made under
void process is immaterial where the
complaint affirmatively shows that the
liquor seized was nniawfully kept for
distribution or division among plain
tiffs.
5. The admitted facts establish that
the plaintiffs possessed such liquor in
violation of law when 1t was seized,
and therefore the maintenance of this
action to recover possession thereof Is
forbidden by section 1D139 G. l.. 1918.
8. Independent of statute neither
equity nor law will assist in restoring
possession of intoxicating liquor to
those who were unlawfully In possess
sion of it when it was seized, or to
bHOSC WHO POSSCSS6u IL JOAnlly Win III
tent to unlawfully distribute it among
themselves.
z. As the liquor is contraband,
without value and not property in the
eyes OF the law and should not be re-
turned to plaintiffs, the demurrer
should have been sustained and said
liquor ordered DESTROYED.
From an order Of the district court
of Morton county, Nuessle, special
Judge, overruling the demurrer to the
complaint of the plaintiffs. defendant
appeals.
Reversed and judgment ordered for
dismissal and for destruction OF the
liquor. Defendant to recover costs ON
trials and on appeal
Opinion of the court by Goss. j..
C,M.istianson, ]. and Fisk, C. J. Con-
CO. specially.
John F. Sullivan, Of Mandan, at
torney for plaintiffs.
George e. Wallace, Of Bismarck and
VIM. LANCER, of Mandan. attorneys for
defendant.