i. iotoxtcatsaletott*persoil intoxicated. I. It is claimed that D. W. Church has no right to bring this action; that the treasurer of Jasper county, for the school fund, is entitled to the forfeiture, and that this authorizes him to sue to the exclusion of , , . . . every one else, lhe obvious answer to tins is, that section 1539 of the Code, which declares the forfeiture, provides that it may be collected by action by any citizen of the count}1'.
*4842____ practice.*483II. It is next urged that the petition does not show that *484the action was commenced by a citizen of Jasper county. If the petition is so defective the objection should have been made by demurrer, or motion in arrest of judgment. The objection cannot for the first time be made, in this court. Code, section 2650.
3. — giving cated'person. III. Appellant urges that section 1539 of the Code prohibits simply a sale of intoxicating liquors to a person intoxicated, and that a sale in fact must be proven, Section 1554, however, provides that “ courts and' jurors shall construe this chapter so as to prevent evasions, and so as to cover the act of giving as well as selling, by persons not authorized.” Wherever the act of giving is expressly prohibited, it may be punished without this section. Unless this section applies to and covers cases in which there is an. omission to provide against the act of giving, it is entirely inoperative and applies only to cases which do not need its aid. We think this section requires us to construe section 1539 as applying to the case of giving intoxicating liquors to an intoxicated person.
4, —:-; IY. It is urged that the finding of facts nowhere shows that defendant knew of the sale, or that Manning was intoxicated. Knowledge of the intoxicated condition of a person to whom the sale is made constitutes no element of t.he act prohibited. It is made penal to sell to a person intoxicated. The person selling must know at his peril whether he may, in a given case, sell with impunity. See Jamison v. Burton, 43 Iowa, 282. Nor is knowledge of the defendant that this sale was made material. Defendant owned the saloon, kept wine and beer for sale, and Kersey, who made the sale, was the acting agent of defendant. Under section 1539, it is unlawful for any one to sell, by agent or otherwise, intoxicating liquor to an intoxicated person.
