Town of Eldora v. Burlingame

Beck, J.

I. The information is in two counts, the first charging defendant with selling, contrary to a town ordinance, “intoxicating, malt, fermented and vinous liquors, to-wit: beer, porter ale, wine and mixed intoxicating liquors.” The second count charges the sale of “spirituous, malt, fermented, intoxicating and mixed liquors, to-wit: beer, ale, wine, and mixed intoxicating liquors,” contrary to the provisions of the ordinance. In the district court the defendant demurrd on the grounds: Eirst, the information charges a crime punishable by the laws of the state; second, each count is bad for duplicity, in that it charges more than one offense. The *34 demurrer was overruled, which is now complained of by defendant.

II. It is alleged that the information charges the selling of intoxicating liquors other than beer, ale and wine, which is ^“•“inform-ordinance ?er surplusage, an °ffeQse punishable under the law of the state, I’or the purposes of the case, let this position be admitted. But the information also charges the sale of beer, ale and wine, and the sale of these liquors may be punished by the town ordinance. This cannot be and is not denied. We have the case, then, of the charge of two offenses, or two classes of offenses, one of which is punishable under the town ordinance and the other is not. The allegations as to the offense* not punishable under the information will be regarded as mere surplusage, just as though it had included a charge of treason or other felony. But this would not affect the charge of the offense within the jurisdiction of the town, and its judicial officer, the mayor.

III. It is insisted that both of the counts are bad for duplicity, in that each count.charges more than one offense. So far 2. THE SAME. as this objection is based upon the fact that the in- , formation charges the offense of selling spirituous liquors, which is punishable only under the statutes of the state, it is answered by the consideration above stated, namely, that the allegation of such charge is mere surplusage, and may be disregarded. So far as it is based upon the fact that it charges more than one sale of malt or vinous liquors, it is answered by the consideration that the town ordinance authorizes “any number of violations of the ordinance to be included in one complaint.”

IY. It is insisted that the ordinance is void, for the reason that, besides prohibiting the sale of malt and vinous ^townsf ord\-iifegal-re-41 vaudder liquors, which the town has authority to do, it also prohibits the sale of other intoxicating liquors, which it has no power to do. But the ordinance will be supported and enforced so far as it is within the lawful authority of the town, and will be held for naught *35 in so far as it attempts to exercise power not conferred by tbe state. Therefore, its provisions prohibiting the sale of beer, ale and wine will be held valid, and will be enforced. The ordinance was properly admitted in evidence.

Y. Oral evidence was admitted against defendant’s objection to prove that the ordinance under which the prosecution 4. —: —: evidence publication, is had was published in a newspaper as required x x by Jaw. In the absence of a statute to the contrary, oral evidence is competent to establish the fact of publication. The ordinance, being found in the proper record of the town, in its form as published, was at least prima facie admissible. If the publication was disputed, the fact was properly established by oral testimony.

YI. The defendant offered oral evidence to prove that the 6. passage of suspension of sumptionf16 record of the council, showing the passage of the ordinance upon a motion suspending the rule requiring it to be read upon three different days, fails to establish the validity of the ordinance, for the reason that the rules were not suspended upon the vote of a competent number of councilmen. But the record recites that the rules were suspended, without showing the number of votes on the proposition, and in its support the law will conclusively presume, in a collateral action, that it is correct. See Billon’s Municipal Corporations, § 236. "We have considered all questions discussed by counsel for defendant. The judgment of the district court is

AFFIRMED.