
    State of Minnesota vs. William Funk.
    November 12, 1880.
    Intoxicating Liquor — Vote of Town against License — Indictment for Selling.— After a town has voted against license, pursuant to Gen. St. 1878, o. 16, § 1, an indictment may be found under section 4 against one who sells in the town without license. The vote of the town does not affect the offence described by that section.
    Samo — U. S. Internal Revenue Receipt not a Defence. — A receipt of the United Stales internal revenue collector, for the tax on the business of retail liquor dealers, is no license or authority to sell liquor, and is no defence to an indictment under the law of the state for selling without license.
    Defendant was tried and convicted in the district court for Hennepin county, before Young, J., on an indictment charging him with selling liquor without a license, at the town of Minneapolis in that county. A motion for a new trial was denied, sentence was passed, and the defendant appealed. At the trial the defendant offered to prove that prior to the date of the sale alleged in the indictment, the town had voted against license, and also offered in evidence a receipt of the United States internal revenue collector of the proper district for the special tax paid by defendant as a retail liquor dealer. In each instance the evidence offered was excluded, and the defendant duly excepted.
    
      Wilson & Lawrence, for appellant.
    
      Chas. M. Start, Attorney General, for the State.
   Gilfillan, C. J.

Gen. St. 1878, c. 16, § 1, empowers boards of county commissioners to grant licenses to sell spirituous, vinous, or fermented and malt liquors, with the proviso that if the people of any municipal township shall, on the question being submitted to them as therein authorized, vote against license, then the board of county commissioners shall grant no license in said township. Section é makes the selling of liquors, spirituous, vinous, fermented or malt, in less quantity than five gallons, without license ob-tamed agreeably to the provisions of tbe chapter, a misdemeanor, and prescribes the punishment. Whether a town votes for or against license, or not at all on the subject, the offence, when one who has no license sells, must be just as it is described in section 4 — that of selling without a license. The statute describes no other offence. The fact that a town has voted against license does not affect the character of the offence; it is no constituent of it. The sale and want of license constitute the crime. Why the seller did not obtain a license, or why the commissioners would not grant one,— and that is all that proof of a vote by the town against license would show, — is immaterial. State v. Cron, 23 Minn. 140.

The decision in the case of State v. Hanley, 25 Minn. 429, cited in support of the proposition that in this case the indictment should have been for selling after the town had voted against license, and the offence should have been described in the indictment as a selling after such vote, was upon a special statute, relating only to the village of Iiasson. That statute provided that any person wrho should, in that village, sell for other than medicinal purposes, after the village should have voted against license, should be deemed guilty of a misdemeanor; and this court held that after a vote against license by the village of Hasson, the liability of one selling in that town thereafter was under that statute, and not under the general law. The decision has no application to this case. The indictment alleging a sale by defendant, and. that he was not then and there a person licensed to sell, was sufficient, and proof that the town had voted against license would not have affected the case.

The receipt to defendant of the United States internal revenue collector, for the tax on the defendant’s business of retail liquor dealer, could not authorize a sale by defendant contrary to the laws of the state. The law of the United States, imposing a tax upon dealers in liquors, is not, like the laws-of the state regulating the selling of liquors, a police regulation, but simply a tax law, enacted not to license or authorize or regulate the sale of liquors, but to raise revenue by a tax on those who are in the business of selling.

Order and judgment affirmed.  