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which it commands or ratifies. That the servant may also be punished does not relieve the corporation.
In a decision handed down in October, Judge Ellis, Superior Court of Atlanta, declared the law imposing a $200 license for the privilege of selling the so-called “near beer” and $500 for the right of manufacturing the article constitutional. The act imposing this tax was passed by the last legislature and designed to raise revenue for the support of convicts. An appeal will be taken from the decision.
Indiana: The Supreme Court of Indiana declared in a recent
"In the absence of legislation, the business of selling intoxicating liquors has universally been recognized as lawful, but there is no inherent right in the people to engage in such a traffic in any such sense as to remove it from the sphere of legislative control. * * * In the absence of constitutional inhibition it is competent for the legislature of a State to delegate to municipal corporations power to control and regulate the liquor traffic within prescribed territory."
The important point is the recognition of the power to restrict. It is held that cities have a right to enact ordinances restricting the sale of liquor to the business district by boundaries. Under the new statute, boundaries may be defined and their establishment must be left to the discretion of the municipality.
Iowa: In a decision adverse to the United Brewers' Company, of Davenport, which was seeking an injunction against the Civic Federation to prevent its interfering with saloon fixtures and leasehold rights in Scott County, Judge Smith McPherson, of the United States Court, declared that the Iowa liquor law which permits saloons to sell by paying the so-called "Mulct tax", and complying with certain strict regulations, is in no sense a license law. He ruled that the Iowa prohibitory law is still in effect, the "Mulct system" simply giving the saloons a defense against prosecutions, but specifically providing that it shall not be considered in any way as legalizing saloons.
The Court said:
Complainants are wholly mistaken when insisting that this is a license system. There is no liquor license system in Iowa and has
not been for a quarter of a century. For that length of time there has never been a lawful sale of liquor in the State. No person to-day can lawfully sell liquor as a beverage. Of course this Court will not discuss the propriety of State legislation. The legislature has power under our constitution to prohibit the manufacture, use or sale of liquor as a beverage. Under the Iowa "Mulct System" absolute compliance with its provisions by saloons simply gives the saloon keepers and their clerks a method of escaping criminal prosecution.”
Maine: Chief Justice Emery has made a very sweeping ruling in regard to what constitutes a liquor nuisance. The ruling arose out of a suit against a social club. According to the ruling, any place where liquor is kept for sale or to be given away for drinking purposes is a liquor nuisance and the custodian of such a place is guilty of maintaining a liquor nuisance. The Chief Justice held, furthermore, that it is not necessary to prove a sale in order to prove a nuisance, that the giving away of liquor or the keeping of liquor, or the keeping of a place resorted to for purposes of drinking is a nuisance; that a man found in charge of a place in which liquors were kept for unlawful purposes was guilty of maintaining a nuisance and that it does not make any difference for how long or short a period he has been in charge of such a place.
In the case of the State against the J. R. Bass Publishing Company, of Bangor, Maine, Chief Justice Emery, of the Maine Supreme Court, Thursday, handed down a rescript which in effect affirms the constitutionality of the Maine statute prohibiting the advertising of intoxicating liquors in Maine publications. This case has been in the courts for six or seven years and has attracted considerable attention. It was prosecuted on complaint of officers of the Maine Civic League. The rescript was as follows:
"If a penal statute is equally susceptible of two interpretations, that should be adopted which gives the statute the effect evidently intended by the legislature. The statute R. S., chapter 29, section 45, forbidding the publication of advertisements of the sale or keeping for sale of intoxicating liquors, includes advertisements of intoxicating liquors sold or kept for sale without the State. By the act of Congress (United States statute, 1901, page 3177) known as the Wilson act, intoxicating liquors are to a great extent withdrawn from the protection of the commerce clause of the United States Constitution and made subject to the police powers of the States.
Since that act the State in the exercise of its police powers may lawfully prohibit the advertising within the State of intoxicating liquors, sold or kept for sale without the State."
Michigan: The Supreme Court has confirmed the validity of the so-called Watson ordinance in Detroit prescribing certain city territory in residence districts which shall be exempt from the saloon business. The ordinance by its own terms did not affect the status of saloons existing in the designated territory, but had as its object the prevention of the establishment of additional saloons.
New Jersey: The decision handed down by the Supreme Court, Justice Parker, reversing the action of the Elizabeth Excise Board in forfeiting the license to sell liquor, held by an Elizabeth woman, shows that the "bishops' law" is not a simple one to enforce. The woman was accused of failure to remove the screens from her barroom on Sundays after the Excise Board had passed a resolution putting into effect the anti-screen provision of the "bishops' law." There was no dispute as to the fact that the screens were not removed, but the woman claimed that as she held an inn and tavern license, she was exempt from the provision of the anti-screen law. Justice Parker upholds this contention, though he intimates that if it had been proved by the Excise Board that the defendant did not maintain on her premises ten spare rooms and beds for the accommodation of boarders, transients and travelers, she would have been properly liable to forfeiture of her license.
Ohio: In August, Judge Thompson, of the United States Court, refused to restrain the government from branding as "imitation whiskey" such rectifiers' packages as are compounded of neutral spirits, colored and flavored. In an earlier case in which the ruling of the Internal Revenue Commissioner relative to the branding of spirits as alcohol" was attacked by the distiller, a decision was rendered against the government. After that defeat the Commissioner of Internal Revenue made another ruling applying particularly to rectifiers, and which in effect had the same bearing, as it provided that the products of rectifiers must be labeled by their correct designation, that is, as a compound, blend, or imitation, as the case may be.
On the motion of the Union Distilling Company for a rehearing on the grounds of insufficient testimony and vested rights which
was denied, Judge Thompson expressed himself as follows on the question of vested rights:
"The misrepresentation of diluted spirits as whiskey for a long time will not establish a right to continue the misrepresentation in violation of the pure food act."
Pennsylvania: In a case brought at York, Judge Warner decided that a liquor license is not an asset, the transfer of which may be prevented by creditors of the holder in an effort to secure payment of debts. The case involved a bottler's license. The judge stated that the court of quarter sessions which has sole jurisdiction of the granting of licenses has no authority to adjudicate a civic issue, nor to make any man pay his debts before allowing his license to be transferred. A liquor license is not granted by the court as an asset to help a man in his private business, but solely on the ground of public necessity. The court can no more make a proposed transfer or pay his debts as a condition of the transfer than it can make an original applicant for license clear himself of debts before granting him a license.
Relative to shipping liquor into no-license towns: An agent of an Erie brewery had been taking orders for beer from persons living in Franklin, and it was shipped to them direct. The agent, however, took charge of the beer when it arrived, placed it in cold storage and delivered it to the purchasers as they desired it. Payment was made direct to the brewery. Judge Criswell held this to be a scheme to evade the law, and ordered the jury to find the defendant guilty of illegal selling, which it did.
South Carolina: In September the United States Circuit Court of Appeals sustained the Circuit Court in appointing receivers to wind up the affairs of the liquor monopoly so long held by the State of Carolina.
The decision is a voluminous one, and holds that the proceeding is not a suit against the State, and that the complainant is not forbidden to maintain his action by the eleventh amendment of the federal constitution.
It holds that the framers of that amendment to the constitution never conceived that a sovereign State could engage in the liquor business and become a trader by buying and selling an article of common traffic in competition with the citizens of the country.
The court questioned, therefore, whether the State was exercising a governmental prerogative or performing a function necessarily or properly incident to the autonomy as a State.
It declared that the fund in controversy, which the complainant claims it should be paid from, being in the hands of the commission charged with the duty of abolishing the dispensary, the State has no interest in so much thereof as is necessary to pay the just debts. The members of the commission, according to the Court, hold the funds in trust for payment of all just debts of the State dispensary and the creditors of the dispensary "have a property interest in the funds in the hands of the commission to the extent that the debts are shown to be just and a judicial determination of the true amount of such debts can in no way affect the rights and interests of the State."
Texas: Attorney-General Davidson held in an opinion addressed to Mayor Landes, of Galveston, that it would not be a violation of the anti-trust law for the agents of breweries to agree with the chief of police not to sell beer within certain prescribed territory in Galveston, pending a test of the city ordinance prohibiting beer being sold within certain limits. The opinion follows:
"Replying to your favor of the 14th inst., wherein you request my opinion as to whether the proposed agreement between the agents of the several breweries and the chief of police of Galveston that beer should not be sold to persons to be resold by them within the prohibited territory defined by the Galveston ordinance was tested in the courts would be in violation of the anti-trust laws of Texas, I beg to say that I have given your letter, the accompanying letters and also the opinions of Duncan and McGregor, my con sideration, and beg to say that in my opinion such agreement or the carrying the same into effect would not be a violation of such laws.
'Section 3, Subdivision 1, of the anti-trust laws set forth, in the opinion of Messrs. Duncan and McGregor, is as follows:
"Section 3. That either or any of the following acts shall constitute a conspiracy in restraint of trade: First, if any two or more persons, firms or corporations or associations of persons who are engaged in buying or selling any article of merchandise, produce or