1 N.D. 5 | N.D. | 1890
On the 22d day of January, 1890, the relator, Frank Ohlquist, applied to this court for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by James N. Swan, sheriff of Grand Forks county. The petition states that the relator was duly arrested on January 21, 1890, upon a warrant issued by a justice of the peace of Grand Forks county, upon a complaint charging the relator with having, on the 10th day of January, 1890, sold intoxicating liquors in said county, in quantities less than five gallons, without having first obtained a license and given a bond therefor, as provided in § 1, c. 26, Laws Dak. 1879; that upon the hearing before said justice the relator was duly held to appear before the district court of said county, and admitted to bail for such appearance in the sum of $500. The relator, failing to give such bail, was by such justice duly committed to the custody of the respondent, as sheriff of said county. Belator, in his petition, claims that his imprisonment is illegal because — First, the
The decision of the question hinges upon the effect, if any, that article 20 of the constitution has upon pre-existing statutes. The act of congress known as the Omnibus Bill, and under which North Dakota became a state, contains the following: “And all laws in force, made by said territories at the time of their admission into the Union, shall be in force in said states, except as modified or changed by this act, or by the constitution of the states respectively.” Omnibus Bill, § 24. § 2 of the schedule of the constitution of this state reads as follows: “All laws now in force in the territory of Dakota which are not repugnant to this constitution shall remain in force until they expire by their own limitation, or be altered or repealed.” From the first organization of the territory of Dakota it was the policy of its citizens to restrain the sale of intoxicating liquors. The earlier enactments on this subject are codified as chapter 35, Pol. Code 1877, which is a complete license law. The first section is as follows: “It shall be unlawful for any person, by himself, by agent, or otherwise, to sell in any quantity intoxicating liquors, to be drank in, upon, or about the premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building, or premises, or other places of popular resort, connected with said premises where sold, without having first obtained a license and given bond as hereinafter provided.” § 10 of that act recites the penalties for a violation thereof, declaring such violation a misdemeanor punishable by fine of not less than $20 nor more than $150. In 1879 the territorial legislature passed a new and complete act upon this subject, known as “Chapter 26, Laws 1879,” and being the law
From.this legislation it is apparent that the original determination of the citizens of Dakota territory to restrict the liquor traffic has constantly augmented, and such augmentation is seen in the increased restriction and increased penalties with which thejr have hedged the traffic about. No backward step has been taken. Such was the state of the law on that subject when the constitutional convention of North Dakota met, in July, 1889. That convention, with full knowledge of the past legislation, crystalized what it believed to be the desire of the people of North Dakota into article 20 of the proposed constitution, which is as follows: “No person, association, or corporation shall, within this state, manufacture, for sale or gift, any intoxicating liquors; and no person, association, or corporation shall import any of the same, for sale or gift, or keep or sell, or offer the same for sale or gift, barter or trade, as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation thereof.” This article was adopted as a portion of the constitution. Belator takes the broad position that chapter 26 of the Laws of 1879, as amended, is repugnant to the above article, and under § 2 of the schedule said chapter is no longer in force, or at least that said chapter is “changed” and “modified” by said article, in so far as it provides for the issuance of license, and hence cannot stand under the provision of the Omnibus Bill as a licensing-statute; and further, as the evident intent and purpose of said chapter 26 was to establish a license system,.that when said system is abrogated all penalties for its violation necessarily fall with it. The position of relator leads to the inevitable conclusion that there is toTday, in North Dakota, no law by which the open and notorious sale of intoxicating liquors for any purpose, and in any quantity, can be punished. "We may go further. Article 20 provides that the “legislative assembly shall by law prescribe regulations for the enforcement of this article, and shall thereby provide suitable penalties for the violation there
In the light of these elementary principles, we will examine the question of the repeal of the license law in force when North Dakota became a state. Our statutory definition of “law” is in substance in accord with that by Sir William Blackstone, to-wit, “a rule of civil conduct,-prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” 1 Blackstone Comm. 53. And Blackstone, in his introduction to his Commentaries, (book 1, p. 53,) says: “It remains, therefore, only to consider in what manner the law is said to ascer
In Cooley, Const. Dim. (5th Ed.) 98 et seq., it is said: “But, although none of the provisions of a constitution are to be looked upon as immaterial, or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The
In People v. Bradley, 60 Ill. 390, this same principle was discussed. In that state a court had been established by statute, known as the “ Becorder’s Court of the City of Chicago,” with its jurisdiction defined, judge, clerk, juries, and officers provided for. The constitution of 1870 continued this court as the “ Criminal Court of Cook County,” but with a change of judges, and enlarged geographical jurisdiction, but with á portion of the jurisdiction of the former court expressly denied, and none of the jurisdiction of that court expressly conferred. The case was habeas corpus, issued from the criminal court of Cook county. It was urged that this court was without authority to issue that writ; but the supreme court, after quoting the constitutional provision, say: “This provision, as clearly appears from the context, was intended to be self-executing, and operate upon the court in question immediately upon the constitution being adopted. * * * In short, all the machinery through which the functions of the criminal court are exercised is afforded by the statute creating the recorder’s court, or else such functions must be considered as dormant until the means for their exercise shall be provided by legislation.” In Nevada a law of 1861 provided for a homestead that should be exempt. A subsequent constitution declared “ a homestead, as provided by law, shall be exempt from forced sale under any process of law,” etc. There was also a clause similar to § 2 of schedule to our constitution. Property had been levied upon by a sheriff that was claimed as a homestead, and the position taken by the officer was that the constitutional provision repealed the former law, and, as. no homestead had been provided by legislation subsequent to the adoption of the constitution, that therefore the
¥e are, then, inevitably led to this position: Whether or not article 20 of our constitution repealed chapter 26 of the Laws of 1879 depends upon whether or not said article is self-executing, and this latter position, in turn, depends upon whether or not the legal machinery exists for its enforcement. On the argument both parties contended that the article was self-executing, but from widely different views as to the result. Relator claims it to be self-executing, and as a result the repeal of the entire license system, including penalties, follows. Respondent claims it was self-executing, but did not repeal the license law, except as to selling as a beverage, or, at most, repealed only the sections providing for license, and that the remaining provisions, being not inconsistent, stood, and that article 20 attached to it, for its own enforcement, the penalties of the old law, and in that form stood a complete penal law. Counsel for relator cites on this point Norton v. Taxing District, etc., 9 Sup. Ct. Rep. 322. The case went up from Tennessee. The constitution of 1834 of that state gave the legislature “ power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes, respectively, in such manner as shall be prescribed bylaw; and all property shall be taxed according to its value, upon the principles established in regard to state taxation.” Article 2, § 29. Under that constitution the legislature authorized the city of Brownsville, by act of Feb. 8, 1870, by a majority vote, to issue bonds and subscribe to the stock of railroad corporations. At an election held for that purpose all the votes cast were in favor of the proposition. But before the bonds were issued, or the election held, the state
We recognize the well-settled principle that when, by constitutional provisions, any personal or private right is granted to the citizen, such right is placed beyond the reach of legislative interference, the bill of rights of all the state constitutions furnishing numerous examples of this class; and the reason is plain. The common-law is the ever ready and efficient means .of enforcing private rights and redressing private wrongs. But we are considering in this case a constitutional provision that confers no affirmative rights, but, on the contrary, restricts the right of a citizen, and is strictly prohibitory in its nature;
"We must not be understood to hold that article 20 does not
Relator was properly held by the magistrate, and must be remanded to the custody of the respondent; and it is so ordered.