Trost v. State

ARNOLD, J., delivered the opinion of the court. The objections made to the indictment were properly overruled. The negation of authority to sell, as therein alleged, was broad enough to cover all the forms and sources from which license could be derived. Bish. Stat. Crimes (second edition), § 1042. There was no error in striking out the special plea of appellants. The facts therein stated constituted no defense, and if they had, [194] they might have been given in evidence under the general issue. 7 Whart. Or. L., § 558. The act approved March 11,1884, Acts of 1884, does not apply to towns, cities, or supervisors’ districts in which liquor is being sold by retail under the general laws of the State as long as it is so sold therein. The purpose of the act, deducible from its terms, was to place new restrictions on wholesale dealers of liquors only in localities in which retailing was not tolerated under the general laws of the State. The act declares the policy that where retailing is allowed and approved, and as long as it continues, that wholesale dealers may sell on the terms prescribed by prior and existing laws, but that where retailing is not allowed liquors shall not be sold in quantities’ of from one to five gallons, unless the seller conforms to the requirements of the act by obtaining license and the approval of the majority of the legal voters of the town, city, or district, and giving bond, in the same manner that retailers are required to do. Appellants’ wholesale license, procured pursuant to prior laws without conformity to the act of 1884, protected them as long as retailing was carried on under the general laws of the State in Columbus, and no longer. After that it became, in the language of the act of 1884, unlawful for any person to sell in quantities of from one to five gallons without first complying with the terms of the act. It is admitted that when the sale for which appellants were indicted occurred, retailing under the general laws of the State had ceased in Columbus, and it follows from what has been said that the judgment must be Affirmed.