The Bozeman courier., 1927-12-02
CITY'S NUISANCE" LIQUOR ORDINANCE
IS DECLARED VOID BY SUPREME court
1T HAS NO POWER TO DECREE MERE POSSESSION OF
INTOXICANTS AN OFFENSE-VOLSTEAD ACT,
HOWEVER, COVER SUCH CASES

Bozeman's nuisance liquor Ordln-
ance, passed in 1922 and under whlc1
many persons have been arrested and
fined sums ranging from $40 to $3OO,
was declared void by the Montana
supreme court in a ruling handed
down Monday on the appeal OF Oscar
Merrell.
Merrell was arrested by the police
last February. A small quantity OF
liquor was found in his possession. He
was tried in police court, found guilty
and fined S10O. Through his counsel,
Attorney Roy NJ. Keister, he appealed
to the district court, but there jury
not only sustained the city tribunal
but increased MerrelIs fine to $500
and added a Jail sentence of 80 days.
He thereupon appealed to the state
supreme court with the result stated.
Merrell's contention was that not
only is the mere possession Of intOXi-
eating LIQUOR not nuisance" as de-
fined by the city ordinance, but that
since the repeal of the states prohib-
itiOa laws it is permissible for any
person to have liquor in his possess
sion.
The supreme court in its ruling said
in part:
Counsel for the city confuses
ordinances declaring possession of
liquor a crime and those defining a
nuisance. The ordinances considered
in these cases are in the former class,
and each would be sustained by this
court under what has been said, but
n IN inf
Counsel have cited no case and we
find none wherein an ordinance defin-
ing the possession of liquor alone as
nuisance has been upheld. Such q
decision in this state would be con.
trary to our express statutes on the
subject and to the police power o1
the state. AS the ordinance under
consideration is such a one, we are
compelled to hold it void. The judg
ment is reversed and the cause
remanded to the district court of Gal
latin county with direction to dis
miss the defendant and exOnOrate hi
bondsmen."
The court also held that "the mert
possession of a small quantity O
liquor, with no intention TO dispos
of it, the discovery of which require
an entry into and search of a privat
dwelling without information tina
there IS liquor therein, cannot possibl
nave effect contemplated by the statu
tes Of this state regarding publ
nuisance" In effect, says the court
a city, under the laws of Montana,
without power to define by ordinanc
the mere possession of cOntraban
liquor as a public nuisance punishabl
as a misdemeanOr.
Relative to Merrell's.. second cor
tentiOn, however, the supreme coul
pointed out that regardless of whs
Montana has done in the matter e
repeal Of the states liquor laws) "
still have the Eighteenth amendmen
and the Volstead act, under whiC
possession and sale of contraban
liquor is made a crime and declare
to constitute a nuisance"
The decision OBJECTS several otht
Montana cities which have ordinance
based upon the same form or patter
ed after that of Bozeman. By it Il
appellant, Merrell, is relieved of h
fine and Jail sentence, and defendan
In two other similar cases where a
peals have been taken are likewi
benefited. Reports, however, tn
persons heretofore fined under Il
ordinance, and who paid their pens
ties without protest or appeal, m;
recover from the city the sums pa
are declared by city authorities to
without foundation in law or fact.