State v. Pittman

| Kan. | Jan 15, 1873

The opinion of the court was delivered by

Valentine, J.:

This was a criminal prosecution under § 3 of the dramshop act, (ch. 35, Gen. Stat., 400.) The defendant was found guilty, and the court arrested the judgment on the ground that the information upon which the defendant was tried did not state facts sufficient to constitute a public offense. The information charges that the defendant sold intoxicating liquor in the town of Jacksonville, Neosho county, Kansas, “without taking out and then having a license as grocer, dramshop-keeper, or tavern-keeper from the tribv/nal transacting the county business of said county of Neosho.” This information was not sufficient. The dramshop act permits both the tribunal transacting the county business and the council of any incorporated town or city to issue licenses to dramshop-keepers, tavern-keepers, and grocers. (Gen. Stat., 399, §§ 1, 2.) But the act clearly does not require that any person should procure more than one license. If the person ■desiring the license proposes to sell liquors in an incorporated town or city he must procure the license from the city council; if he proposes to sell in some other place than an incorporated town or city, he must procure the license from the tribunal transacting the county business; and in either case license will’ be a sufficient protection to him from any prosecution under ■§ 3 of said act. That portion of said section third applicable to this question reads as follows:

“Any person without taking out and having a license as grocer, dramshop-keeper, or tavern-keeper, who shall directly ■or indirectly sell any spirituous, vinous, or fermented or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offense.”

The information in this case merely charged that the defendant did not have a license from the tribunal transacting the county business, and it did not charge that he did not have a license from the council of some incorporated town or city. In this the information was defective. If the information had omitted the foregoing words in italics, or if it had added these words, “or from the council of any incorporated town or city,” or some other words which would have shown that the liquor was not sold in any incorporated town or city under a license from the town or city council, the information would have been sufficient. Of course, the court cannot take judicial notice whether the town of Jacksonville, or any other town or city in Kansas, is incorporated. Towns and cities in Kansas are incorporated only under general laws. Before they can be incorporated under such laws they must have the requisite population. Whether Jacksonville has the requisite population or not, or whether it has all the other requisites or not, or whether it has ever been incorporated or not, we cannot take judicial notice. The judgment of the court below is affirmed.

All the Justices concurring.