State v. Cooke

24 Minn. 247 | Minn. | 1877

C-tt.rtt.t.an, C. J.

The charter of the city of Eochester, as amended in 1867, provided (Sp. Laws 1867, p. 135, § 1) that the common council might “grant licenses for vending or dealing in spirituous, vinous, or fermented liquors, ” and might “restrain and prohibit any person from vending, giving, or ■dealing in spirituous, vinous, fermented, mixed, or intoxicating liquors of any kind, and impose such restrictions or prohibitions by fine or imprisonment. ” To the police power thus vested in the council no valid objection can be made. Under it the council might determine that no person should be permitted to deal in liquors, and impose and enforce penalties for doing so. We can see no reason to doubt that it was competent for the legislature to have given the prohibitory power to the council, and in the charter itself have prescribed the penalty for disregarding such prohibition — prescribing in such case for the contingency of a prohibition by the council; and a disobedience of such prohibition would not subject that part of the charter to the objection that it became law only upon the action of the council. In such case it would be the law, upon the passage of the act, that if the council should prohibit the traffic in liquors any one violating such prohibition should be liable to the penalty.

The charter was, in 1876, amended (Sp. Laws 1876, c. 81, § 1) by an act, the first section of which reads: “The legal voters of the city of Bochester are hereby authorized to vote upon and determine for themselves the question whether license for the sale of intoxicating liquors shall be granted in said city or not.” The second section provides for the vote of the electors upon the question, and that, if a majority of the voters shall be against license, no license for the sale of liquors in the city shall -be granted. The third section provides that if it be determined, as therein provided, that no-license shall be granted, then “any person thereafter who-shall sell, bargain, or dispose of any spirituous, malt, vinous, fermented or intoxicating liquors, within the corporate limits of said city, shall be deemed guilty of a misdemeanor, ” and shall, upon conviction, be punished as prescribed in the section.

The effect of the act is to make the vote of a majority of the voters against license a prohibition, from and after the time it is taken, against the sale of liquors. The power to-make such prohibition is taken from the council and vested in the electors. When the legislature confers any power upon a municipal corporation, it may prescribe by whom the power shall be exercised, by a particular officer or set of officers, or by the electors at large; and the removal of the power in question from the council to the legal voters was unquestionably valid.

The imposition by the amendatory act of the penalty for disregarding a prohibition by the vote of the electors, stands upon the same footing as would the imposition by the original charter of a penalty for violating a similar prohibition by the council. The part of section 3 of the act of 1876, which we have quoted, clearly makes it unlawful for any person, without any exception of those having unexpired licenses, to sell, bargain or dispose of liquors after the voters shall determine that no license shall be granted. This provides for an effectual revocation of outstanding licenses by the vote of the electors. Although penal statutes should be construed strictly, they cannot be construed contrary to the language used; and to construe this act so as to exclude from its operation those having licenses unexpired, when the language used is that “any person thereafter [that is after the vote] who shall sell,” etc., “shall be guilty of a misdemeanor,” would be contrary to the plain import of the language.

Judgment affirmed.