5 Dakota 433 | Supreme Court Of The Territory Of Dakota | 1889
This action is an appeal from the district court of Minnehaha county, from a decree granting an injunction against the sale of intoxicating liquor under the “local option law,” and presents many of the questions passed upon in Territory v. O’Connor, ante, 397, (decided at this term of court.) As to the points so determined, the opinion in that case will govern in this. This case, however, presents this additional question, to-wit: The charter of the city of Sioux Falls gives to the council exclusive power to license and regulate the sale of intoxicating liquor's within the city, and it is contended by the defendant that chapter 72 of the Laws of 1887, providing that the amendment therein made shall not apply to cities having the exclusive right to license, must be construed to so far modify the “local
The section 1, Laws 1879, which is thus amended, makes it unlawful to sell intoxicating liquors in less quantity than five .gallons, without having obtained a license as thereinafter provided; and it is thereinafter provided that such application is to be made to the board of county commissioners, and such license “shall be granted by said board if they deem it expedient, and the applicant a proper person to engage in the same.” “The amendment was approved on the 15th day of February, 1887, and the “local option law” was approved March 11, 1887. Under the law of 1879, as amended by the act of February 15, 1887, the board of county commissioners were given control of .licenses within their respective counties, except- when, by statute already existing, a city, by special charter, had exclusive ¿authority in the matter; and the object of the statute was to .forbid and make unlawful the sale of intoxicating liquors when no license had been granted, to emphasize and make clearer the •prohibition of the statute of 1879, in case of refusal to grant .licenses by the proper authority.
The amendment is not an independent act. It was expressly made a part of the law of 1879, and, ipso facto, upon its passage, ;and from the date of its approval, it was an integral part of the law as amended. Later on, in the same session, and nearly a ¿month thereafter, the legislature, recognizing the autonomy of
Sections 3 and 6, c. 70, Laws 1887, which provide: “Should a. majority of the ballots cast at such an election be ‘ against the-sale,’ it shall be unlawful for the board of county commissioners of such county to issue or grant a license for the sale of intoxicating liquors in such county, or for any common council or ofiicers of any incorporated, town, city, or village in said county to grant or issue any license for the sale of such intoxicating; liquors. * * * All acts, special or general, so far as they-conflict with the provisions of this act, are hereby repealed,”— are, as admitted, in direct conflict therewith, and must be construed as not only repealing so much of the law of 1879 as is in conflict with it, but as repealing so much of any existing city charter or other special law as would seem to give power to> grant licenses contrary to the terms of the later law. This is-clearly the meaning and intention of the law. It is true that there are some omissions which the legislature might well, have
It is true, the legislature might have provided for local option within the city as separate from the country, and have allowed the people of the city to regulate such matters in their own way, without dictation from those living without its limits; but this argument is one to be made to the legislature, not to the courts. We have nothing to do with the wisdom or the propriety of the act drawn in question. We have sufficient to occupy our time in construing and determining the legality of leg