
    City of Emporia v. F. W. Volmer.
    January Term, 1874.
    Municipal Corporations: Second-Class Cities: Powers Under Laws of 1872. Under the Laws of 1872 the council of cities of the second class had power to enact ordinances to prohibit and suppress tippling-shops.
    Appeal from Lyon district court.
    This action was commenced in the police court of the city of Emporia in June, 1872, and removed by Volmer to the district court by appeal, where it was tried at the March term, 1873. The facts and proceedings are nearly the same as in the case ante, *622, except that the complaint cha'rged that the appellant, Volmer, “on the fourth of June, 1872, and ever since May 31, 1872, within the corporate limits of said city of Emporia, did then and there keep, and ever since has kept, a tippling-shop at and in a certain one and one-half story frame building known as the ‘ Bismark House,’ situate on the west end of lots numbers 141 and 143, Commercial street, and fronting on Fifth avenue, and within the corporate limits of the said city of Emporia, and sold thereat by retail, to be drank upon the premises, spirituous, vinous, fermented, and intoxicating *liquors, without having at the time a license therefor, which said above-described building is a tippling-shop, and kept, used, and occupied as such by the said Volmer, against the form’of the statute in such cases made and provided, and contrary to and in violation of sections 1 and 2 of an ordinance of said city entitled,” etc., setting out the title, and the sections mentioned. Defendant was convicted, and fined $100 and costs, and from such judgment he appeals to this court.
    
      John V. Sanders, for appellant.
    
      J. Jay Buck, for appellee.
   Brewer, J.

Nearly all the questions in this case have been considered and decided in the case between the same parties in which the opinion has just been filed. Ante, *622. One question arises here which requires notice. This prosecution was commenced about a year before that just decided. At that time there was no ordinance licensing, but one prohibiting, tippling-shops. The first two sections of said ordinance are as follows:

“Section 1. All tippling-shops, and the keeping thereof, are hereby prohibited within the corporate limits of the city of Emporia, Lyon county, Kansas.

“See. 2. Whoever shall keep a tippling-shop within the corporate limits of the said city of Emporia shall, on conviction thereof, be fined in any sum not exceeding one hundred dollars.”

Under this ordinance this prosecution was had, and it is claimed by counsel for defendant that the ordinance is void because it conflicts with the dram-shop act. That authorizes the selling of liquor; this prohibits it. This ordinance is within the very letter of the authority granted by section 49 of the act incorporating cities of the second class. It reads: “The city council shall haye powrer to enact ordinances to restrain, -prohibit, and suppress tippling-shops, ’’etc. Laws, 1872, p. 206, § 49. As this law was passed subsequently to the dram-shop act, if there were a conflict it would be upheld as the last *expression of the legislative will. But we do not think there is any conflict. Under the dram-shop act the city council might grant licenses; under this section they might grant or refuse.

We see no error in the proceedings, and the judgment will be affirmed. It may, perhaps, be proper to say that no question as to the validity of the third and fourth sections of the ordinance is before us, as the city, in the district court, took only a judgment imposing a fine.

(All the justices concurring.)  