
    John Alexander v. James O’Donnell.
    January Term, 1874.
    1. Intoxicating Liquors: Sales without License: Cities. The sale of intoxicating liquors without a license is prohibited by statute, and this prohibition is operative within as well as without the limits of cities of the second class, and subsequent as well as prior to the law of 1872 concerning cities of the second class. [State v. Young, 17 Kan. 416; State v. Mugler, 29 Kan. 270.]
    
      2. -: Sales on Credit. The sale of intoxicating liquors without license being prohibited by statute, no action can be maintained to recover for Quch liquors so sold on credit, whether the quantity sold be great or small.
    Error from Nemaha district court.
    The ease is stated in the opinion.
    
      *G. W. Johnson and J. E. Taylor, for plaintiff in error.
    We rely on sections 3 and 14 of chapter 35 of General Statutes, and construction given thereto in Dolson v. Hope, 7 Kan. *162, that the sale of liquors by the quart, gallon, or hogshead are equally illegal, unless made in compliance with the dram-shop act. There is nothing in that act that even by remote implication limits its provisions to sales by the dram.
    
      Edward Purcell, also for plaintiff in error.
    It makes no kind of difference, in regard to the locality in which the liquors were sold, whether such sale was made in an incorporated city or town, or elsewhere, so it was made in the state of Kansas, if made in violation of the statutes of the state. Section 3, Dram-shop^ Act; Dolson v. Hope, supra. And upon the facts agreed on in this» case, if O’Donnell had been a licensed dram-shop keeper, grocer, or-tavern keeper, at the time of making such sale on credit, he could; not recover. Gen. St. e. 35, § 14; Dolson v. Hope, supra; Gorsuth v. Butterfield, 2 Wis. 237.
    
      Albert H. Horton, for defendant in error.
    There was no ordinance of said city of Atchison at the date of said sales requiring or demanding a license or any tax of or from liquor sellers engaged in disposing of and selling intoxicating liquors by wholesale. An ordinance previously existing requiring wholesale liquor dealers to take out a license, and pay taxes therefor, was repealed, and before the sales for which suit was brought in the court below. Said sales were made while the city charter act of March 13, 1872, was in force, and while the city council of Atchison had the exclusive authority to levy and collect from O’Donnell a license tax for selling liquor; and the court will understand that the city of Atchison, by its repeal of the law requiring license from wholesale liquor dealers, thereby, by its own action, licensed or gave permission to O’Donnell to carry on *his business as a wholesale liquor dealer in Atchison without paying any other written license or permit, and without paying any tax therefor. It follows, therefore, that O’Donnell did not make said sales of spirituous liquors in violation of any statute or ordinance, and he is entitled to recover.
   Brewer, J.

This case was tried in the district court of Nemaha county upon an agreed statement of facts. Those facts, so far as they are material, are substantially as follows: From March, 1872, to January, 1873, O’Donnell was a wholesale liquor dealer, and was not a grocer, dram-shop keeper, or tavern keeper, in the city of Atchison, a city of the second class. During that time he had no state, county, or city license, and there was no ordinance of said city requiring a license or tax of any kind from a wholesale dealer, an ordinance to that effect in force prior thereto having, in March, 1872, been repealed. During that time he sold in Atchison liquor to Alexander, to recover for which this action is brought. Can he recover ? It was decided by this court, in Dolson v. Hope, 7 Kan. *161, that “the sale of intoxicating liquors wdthout a license is prohibited by statute, whether the quantity be great or small.” To that decision we adhere. The dram-shop act remains as it was. Its penalties and prohibitions are unchanged. But this difference exists between that case and this: In 1872, and subsequent to that decision, the legislature, in enacting a charter for cities of the second class, included this provision: "The city council shall have exclusive authority to ■ levy and collect a license tax on saloons, liquor sellers,” etc. Chapter 100, Laws 1872, p. 206, § 47. Now, when that body which has exclusive authority refuses to levy and collect any license tax, and repeals a prior ordinance requiring such tax, is the sale one made in contravention of law? The question back of this, and the one upon which really the case hinges, is whether the dram-shop act is operative within the territorial limits of cities of the second class; for if it be, then section 3 prohibits the sale by any person without a license. The charter *does not, in terms, limit the operation of the dram-shop act. Exclusive authority over the liquor question is not granted, but only exclusive authority to levy • and collect licenses. The general law, in terms reaching to cities, prohibits a sale without license. The city, with exclusive authority to grant licenses, refuses to grant any. What follows, — the unre■.stricted right to sell? or .an' absolute prohibition? Manifestly the latter. The city has no authority to disturb the prohibition; it may withhold the license.

Again, the agreed statement shows only that no license was authorized to wholesale liquor dealers as such. It does not appear whether licenses were required of grocers, dram-shop keepers, or tav.ern beepers. Neither does the dram-shop act provide for a license to a wholesale liquor dealer as such. It contemplates but three kinds of licenses, that is, dram-shop license, tavern license, and grocery license. Gen. St. 399, c. 35, § 1. But it makes the sale of liquors by any one without one of these three kinds of licenses a penal offense. Gen. St. 400, § 3. So that for aught that appears in the record, the ordinances of the city of Atchison may be, upon this question, in exact harmony with the provisions of the dram-shop act.

Still, again: Seetion 1 of the dram-shop act provides for a township license, to be obtained from the county commissioners, and a city license, to be obtained from the city council. Seetion 2 provides that the license tax shall be not less than $100, nor more than $500, per annum, the amount to be determined by the tribunal granting the license, and to be paid into the treasury of the county or city granting the license. Cities of the first and second class were, in terms, under the laws of 1868, authorized to levy and collect license taxes on liquor sellers. Gen. St. p. 132, § 15, cl. 4; Id. 161, § 30, cl. 4. There was nothing in the statutes authorizing the county commissioners, or any tribunal other than the council, to grant a license to a liquor seller within the limits of the city. Hence it would seem that prior to 1872 the city council of Atchison had the exclusive *authority to levy and collect license taxes on liquor sellers within the limits of the city, and that, so far as this question is concerned, no change was made by the legislation of that year.

This case was tried upon an agreed statement of facts. It becomes our duty, therefore, not only to reverse the judgment, hut to remand the case, with instructions to enter judgment for costs in favor of the plaintiff in error, defendant below.

(All the justices concurring.)  