and all the proceedings for injunctions, temporary and permanent, and for fines and costs for violation of same, as defined by law, shall be applicable to such person, company or corporation, and the fact that an offender has no known or permanent place of business or base of supplies, or quits the business after the commencement of an action shall not prevent a temporary or permanent injunction, as the case may be, from issuing."

The act to enjoin and abate a nuisance can be maintained only in connection with some building or place (see annotations appearing herein following Sec. 2384 of the Code); but not so with reference to an action to enjoin a bootlegger. The statute specifically states that it is not essential that a bootlegger have a known or permanent place of business or base of supplies.

SEC. 2411 of code. Subsequent conviction after prior conviction for keeping nuisance or after being enjoined. "Any person who shall have been convicted of keeping a nuisance under this chapter, or who shall have been enjoined as herein provided, and shall again directly or indirectly engage in keeping a nuisance or selling intoxicating liquors in violation of this chapter, in any county in this state, shall, upon conviction thereof, be punished by imprisonment in the county jail not less than three months nor more than one year. But no equitable proceeding, order or judg ment shall be construed as a conviction under the provisions of this section."

An analysis of the preceding section discloses that this section applies only when the accused has been previously convicted of keeping a nuisance or enjoined for the violation of the liquor laws, and is thereafter convicted of again keeping a nuisance or selling intoxicating liquors in violation of this chapter.

Compare with section 2461-m, Supplemental Supplement, 1915, relating to "persistent violator"; also section 2383, Supplement, 1913, relative to second conviction for violation of the provisions of section 2382, Supplemental Supplement, 1915, as amended.

As to the form of indictment or information in any prosecution for second or subsequent offense see sections 2424 and 2425 of the Code.

SEC. 2461-m, Supplemental Supplement, 1915. Defining persistent violator and fixing penalty. "Any person who, having once in any district court of this state been duly convicted in a criminal action for violation of any of the provisions of chapter six, title twelve, of the code and the laws amendatory thereto, and who shall hereafter be indicted, tried and convicted for a subsequent offense under the same law, shall be considered a persistent

violator of such law, and sentence for each subsequent violation of said law shall be imprisonment in the state penitentiary or state. reformatory for not more than one year."

The definition of a "persistent violator" includes four prerequisites, namely:

(1) the accused must have been previously convicted in a criminal action in the district court for the violation of the liquor law;

(2) the accused must thereafter be indicted for a second violation under the same law-identical offense

(3) the accused must thereafter be tried for such second offense under the same law;

(4) the accused must thereafter be convicted of the second offense under the same law.

By entering a plea of "guilty" the accused is not "tried" and therefore cannot be punished as a persistent violator.

For requisites of indictment or information in any prosecution for second or subsequent offense see Secs. 2424 and 2425 of the Code.

SEC. 2461-n, Supplemental Supplement, 1915. Evidence of former conviction. "On the trial of any cause under the provisions of this act, a duly authenticated copy of the former judgment in any court in which such judgment was so had, shall be competent and prima facie evidence of such former judgment, and may be used in evidence upon the trial of said cause.

See also section 2383, Supplement, 1913, for penalty for second violation of section 2382, Supplemental Supplement, 1915, as amended, relating to manufacturing, sale or keeping for sale, etc. of intoxicating liquor. See also section 2411 of the Code for additional penalty for conviction of violation of liquor laws after having previously been convicted of keeping a nuisance or enjoined for violation of liquor laws.

SEC. 2461-f, Supplement, 1913. Drinking on passenger carsprofane language-penalty. "Any person who shall drink intoxicating liquors as a beverage on any passenger railway car or street car in service or who shall use profane or indecent language on such railway or street car shall be guilty of a misdemeanor." SEC. 2461-g, Supplement, 1913. Powers of conductor. "Any conductor of a railway train or street car carrying passengers shall have the right to refuse to permit any person, not in the custody of an officer, to enter any passenger car on his train or street car in his charge who shall be in a state of intoxication; and shall have the further right to eject from his train at any station or from his street car at any regular stop any person found in a state of intoxication or drinking intoxicating liquors as a beverage, or using

profane or indecent language on any passenger car of his train or any street car under his charge and for that purpose may call to his aid any employe of the railway or street car company."

SEC. 2461-g1, Supplemental Supplement, 1915. Carrying intoxicating liquors on trains, etc., prohibited. "Any person who shall upon any railroad, street or interurban car, carry upon his person, or in any hand baggage, suit case or otherwise, for unlawful purposes, any intoxicating liquor shall be guilty of a misdemeanor."

AUTHORITY GRANTED TO CITIES TO SUPPRESS
GAMBLING HOUSES, ETC.

The 37th G. A., chapter 393, enacted the following provisions granting additional power to cities and towns in the matter of law enforcement. An act to repeal the law as it appears in section seven hundred four (704), supplement to the code, 1913, and to enact a substitute therefor, conferring power upon cities and towns to enact ordinances for the suppression, restraining and prohibiting of gambling houses, disorderly houses or places where intoxicating liquors are either kept, sold or given away, and to punish any persons transporting others to or from the same.

Be it Enacted by the General Assembly of the State of Iowa:

SECTION 1. That section seven hundred four (704), supplement to the code of Iowa, 1913, be and the same is hereby repealed and the following substitute enacted in lieu thereof:

"They shall have power to suppress, restrain and prohibit gambling, bawdy houses, disorderly houses, houses of ill-fame, road houses where lewdness is carried on, opium or hop joints or places resorted to for the use of opium or hasheesh, or places where intoxicating liquor is illegally kept, sold or given away, and to punish the keepers and inmates thereof, or persons resorting thereto, or persons who, knowing the character or reputation of such places, transport others to or from any of the above described places."

Approved April 25, A. D. 1917, effective July 4, 1917.

SEC. 2431 of the code. Evasions. "Courts and jurors shall construe this chapter so as to prevent evasion."

For an application of this statute see Schideler v. Naughton, 163 Iowa 616; 145 NW. 280.

TRANSPORTATION OF INTOXICATING LIQUOR

The subject of transportation of intoxicating liquor has been one involved in a great deal of doubt due to both state and federal legislation and to various rules announced by the supreme courts. Since the rendering of the opinion in the case of Clark Distilling Company v. Western Maryland Railway Company and State of West Virginia, decided January 8, 1917, 242 U. S., 311, by the Supreme Court of the United States the question has been greatly simplified. This case firmly establishes the proposition that all shipments of intoxicating liquor (including those for personal use) by interstate commerce are divested of their interstate character if they are made in violation of any law of the state in which delivery is to be made. When thus divested of their interstate character such shipments are to be treated the same as if the shipments had originated wholly within the state of delivery. The sections immediately following relate wholly to intrastate commerce. The matter of interstate shipments and the Webb-Kenyon law appears in this compilation under the head of "United States Liquor Laws."

Special attention is directed to the provision of the Reed "Bone-Dry" Law. It not only prohibits the use of the United States mails for the circulating of liquor advertising matter in dry territory but further provides "whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes," is subject to the penalties of the foregoing law which is set forth at length in this compilation.

SEC. 2419 of the code. Transportation to one not holding permit. "If any express or railway company, or any common carrier, or person, or any one as the agent or employe thereof, shall transport or convey to any person within this state any intoxicating liquors, without first having been furnished with a certificate from the clerk of the court issuing the permit, showing that the consignee is a permit holder and authorized to sell liquors in the county to which the shipment is made, such company, common carrier, person, agent or employe thereof, shall, upon conviction, be fined in the sum of one hundred dollars for each offense and pay the costs of prosecution, including a reasonable attorney's fee to be taxed by the court. The offense herein created shall be held committed and complete and to have been committed in any county in the state in which the liquors are received for transportation, through which they are transported, or in which they are delivered. The defendant in a prosecution

under this section may show by a preponderance of the evidence as a defense that the character, circumstances and contents of the shipment were not known to him, or that the person to whom the shipment was made had complied with the provisions of this chapter relating to the mulet tax."

Prior to the enactment of the Webb-Kenyon Law, section 2419 was held inoperative as to interstate shipments of intoxicating liquor. Bowman v. C. & N. W. Railway Co., 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100. By the enactment of the Webb-Kenyon Law, the restriction on interstate shipments was removed and the section above set forth again came into full force. State v. United States Express Co., 164 Iowa, 112; 145 NW., 451. On April 10, 1917, the United States Circuit Court of Appeals in the case of Hamm Brewing Company v. C. R. I. & P. Railway Co., after fully considering the foregoing section, together with sections 2421 et seq of the Supplemental Supplement, 1915, held that the Iowa statutes prohibited the shipment of intoxicating liquor to anyone except a permit holder and that the permit holder must sign the common carrier's record in person. Frohibition being the rule in Iowa, it follows a strict construction must be given to these sections. According to section 2396 of the Code every permit holder is authorized to ship intoxicating liquor to registered pharmacists and manufacturers of proprietary medicines and all common carriers are authorized to receive and transport such intoxicating liquor upon presentation of a certificate from the clerk of the district or superior court of the county where the permit holder resides stating that such person is permitted to ship intoxicating liquors under the law of this state. In view of the provisions of the act of the 37th G. A., chapter 133, relative to manufacturers' permits, it may be inferred that a manufacturer would not be in lawful possession of intoxicating liquor purchased from a permit holder unless he complies with the provisions thereof.

Retail permit holders have no authority to transport intoxicating liquors to physicians, dentists or veterinarians. There is no provision in the law prohibiting a retail permit holder from selling to a physician, dentist or veterinarian but the law gives him no right to transport "such intoxicating liquor; nor can a carrier lawfully do so. However, the holder of a wholesale permit, upon proper request is authorized to transport intoxicating liquors to registered pharmacists, physicians, dentists and veterinarians and common carriers are authorized to convey and deliver such shipments. Section 2401-a, Supplement, 1913, as amended by the 37th G. A., chapter 422.

Any person in any manner directly or indirectly assisting in the sale, shipment or delivery of intoxicating liquor in violation of law is termed a "bootlegger" and is guilty of a misdemeanor. Section 2461-a, Supplemental Supplement, 1915. He may also be restrained by injunction from doing or continuing to do any of the acts prohibited by law. 2461-b, Supplement, 1913.

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