64 Iowa 297 | Iowa | 1884
Whether the ground of challenge was good we need not determine. If we should concede that it was, we could not reverse, if it appears that the defendant was not prejudiced; and we reach the conclusion that hte was not.
The case has this peculiarity: There is no dispute as to the fact of sale by the defendant, nor as to the place where sold. The defendant sold beer to one Wilkin at his saloon, and his saloon was outside of the city limits of Albia, but within two miles thereof, if the limits were where the city claimed that they were. Now, the evidence introduced was either sufficient to sustain the-claim beyond controversy, or it was wholly insufficient; and as to whether it was sufficient or not is a question of law.
The defendant insists that the court erred in giving this instruction. His theory is that the- corporate limits are
The statute is in these words: “ It is hereby made unlawful for any person * * * * to sell * * * beer or other malt or vinous liquors within two miles of the corporate limits of any municipal corporation.” Chap. 119, Laws of 1878. The question presented is as to what shall be deemed corporate limits.within the meaning of this statute.
The case before us is one where, as we infer, there was an attempt to extend the corporate limits, but where, possibly, the proceedings were not legal, but where the city, nevertheless, proceeded to exercise jurisdiction as if they were legal, and the territory, for practical purposes, had been treated as within the city. The plaintiff contends that we cannot try the legality of the proceedings in a case like this.
In our opinion, the plaintiff’s position is well taken. This case is one of which a justice of the peace has jurisdiction, and is not a suitable action in any way to test corporate rights. Whatever territory the city maintains jurisdiction over must be regarded, we think, as de facto corporate territory. If the right of jurisdiction is to be tested, it should, we think, be done by a proceeding that would be binding upon all, and final. We think that the court did not err in the instruction given.
Affirmed.