State v. Neeper
State v. Neeper
Opinion of the Court
Opinion by
The defendant was indicted for selling liquor in less quantity than one gallon, without a license under the general law of 1849. The indictment charges the defendant with having sold the liquor within the incorporated limits of the town of Bellevue. The court decided that the defendant was not liable under the law of 1849, for selling liquor within the limits of that town.
It is urged by the attorney for the state that this decision is erroneous. By the laws of 1844, 149, §§ 2 and 3, the trustees of the town of Bellevue are authorized to grant licenses in the town. If a person sells spirituous liquors -without a license, agreeable to that law, he is liable to its penalties for the use of the corporation. The power of the the trustees over such licenses is adequate, and a party armed with their license would be authorized to sell in less quantities than one gallon, unless other concurrent laws
As the town of Bellevue had the authority to grant licenses, the question arises, was a citizen of that town amenable to the general law of 1849?
Independent of the proviso to the fifth section of this law, we could readily arrive at the conclusion, that such citizen would not only he required to obtain a license from tbe town but also from tbe county. But in that section it is provided “ that no provision of this act shall be so construed as to interfere with, or in any way to abridge the powers and privileges granted to cities or incorporated towns,” «fee. Laws 1849, 81, § 5,
It will be readily observed that if so construed as to require parties to pay for a license from the county as well as the town, such increased expense would preclude some parties from obtaining the requisite licenses, and thus the power and privileges of the town would be interfered with or abridged. This proviso shows quite conclusively, the intention of the legislature not todnterfere, either by repealing clause or by penal restriction, with any incorporated town, and hence it was not intended that citizen&of Bellevue should be amenable to any other than the law of 1844.
Judgment affirmed.
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