Vinson v. Town of Monticello

Mitchell, J. The town of Monticello instituted a suit against Vinson to recover a penalty prescribed by an ordinance alleged to have been enacted by “ the town, by its board of trustees,” on the 1st day of June, 1886, prohibiting any person from selling, bartering or giving away any intoxicating liquor in a less quantity than a quart, without first procuring a license from the proper municipal authority. For the appellant it is now contended that the court erred in overruling a demurrer to the complaint. It is said it does not appear with sufficient certainty what officers of the town enacted the by-law or ordinance. The suggestion is altogether without force. It is averred that the ordinance was enacted by the board of trustees, and, as the trustees alone are authorized' to enact ordinances, it follows that the averment is certain and definite. Hardenbrook v. Town of Ligonier, 95 Ind. 70. Lastly, it is said the ordinance is void because it assumes to prohibit the sale, barter or giving away of intoxicating liquor without a license, .while the statute only authorizes towns to license, regulate and restrain the sale of spirituous, vinous, malt and other intoxicating liquors within the corporation. The substantive grant contained in the statute is the power to license, regulate and restrain the sale of intoxicating liquor, but as a necessary incident to the power to restrain and regulate the sale, and to prevent the evasion of any ordinance against selling without license, is included the power to prohibit the bartering or giving away of any intoxicating liquor. State v. Adamson, 14 Ind. 296; Williams v. State, 48 Ind. 306. This is upon the principle that a grant carries with it by implication all that is neces [105] ■sary to make the power granted effectual. The ordinance is, therefore, valid as a whole. Filed Jan. 26, 1889; petition for a rehearing overruled March 26, 1889. The judgment is affirmed, with costs, and five per cent, ■damages.