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taining the same, and other personal property used in connection therewith, and hold them subject to the order of the magistrate and make return of his doings to the magistrate issuing the warrant. Whereupon it shall be the duty of the magistrate to fix a time for hearing, and issue notice thereof to the officer who shall post a copy thereof on the building or premises where the liquors were found. The day so fixed shall not be less than five days nor more than ten days from the date of the issuance of said notice. If, at the time fixed for the hearing, no person appears, or if any person does appear after a hearing, the magistrate shall be satisfied the liquors were being kept, sold or otherwise disposed of in violation of this act, the magistrate shall order the same immediately destroyed, and in case there is no appearance by any one claiming to be the owner of the liquors, the costs shall be paid by the county in which the complaint is brought as in cases where the defendant is acquitted, and if any one appears and resists the complaint and is found guilty he shall be adjudged to pay the costs, and the liquors, containers and vessels mentioned hereinbefore shall be immediately destroyed. There shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, fixtures, bars, furniture and implements kept or used in violation of any provision of this act.

Any car, automobile, vehicle or means of transportation which shall be engaged in, or used for, the unlawful transportation of intoxicating liquors is hereby declared a common nuisance and may be abated as in this act provided. Any peace officer having probable cause to believe that such vehicle is being used for the unlawful transportation of intoxicating liquors, shall make search thereof with or without a warrant, and in every case where a search is made without a warrant the officer shall take the vehicle and the persons in charge thereof into custody and forthwith shall file a complaint and a warrant shall issue and the case thereafter shall proceed in all respects as is provided in this and the preceding sections.

Sec. 43. Pleading and proof. In an indictment, information, affidavit, or complaint, charging the violation of any of the provisions of this act, it shall be sufficient to charge that the accused unlawfully manufactured, sold, offered for sale, kept for sale, delivered, or otherwise unlawfully disposed of "intoxicating liquors," as the case may be, without any further or more specific description of such liquor, and proof of any kind of intoxicating

Ch. 187)

Indictment and Information


liquor unlawfully manufactured, sold, offered for sale, kept for sale, delivered, or otherwise unlawfully disposed of, as the case may be, shall be sufficient proof as to the character or kind of liquor.

Sec. 44. Same. In any indictment, information, complaint, or affidavit charging the violation of any of the provisions of this act, it shall not be necessary to allege the quantity of such liquor or the kind thereof further than to allege that the same was intoxicating liquor and in case of sale, keeping for sale, or delivering, it shall not be necessary to set out the name of the person to whom sale or delivery has been made, and in any prosecution for a second offense, it shall not be necessary to state in the indictment, complaint or affidavit the record of the former conviction, but it shall be sufficient to briefly allege such conviction. Proof of sale, delivery, or unlawful disposition of intoxicating liquors to any person, not authorized by this act to purchase or receive the same, shall be sufficient to sustain the allegation of unlawful sale, delivery, or disposition, as the case may be.

Sec. 45. Prima Facie Evidence. The possession of a receipt or stamp, showing the payment of the special tax levied by the United States upon the manufacture and sale of intoxicating liquor, by any person not authorized under this act to manufacture or sell intoxicating liquor, or a certificate from the collector of internal revenue or any of his agents, clerks, or deputies, showing the payment of such internal revenue tax, by any such person aforesaid shall be prima facie evidence of the unlawful sale, barter, exchange, giving away, furnishing, or other disposition. of intoxicating liquors in violation of this act by such person.

Sec. 46. Joinder and description of offenses. In any indictment, information, complaint or affidavit, against any one or more individuals charging the violation of any of the provisions of this act, separate offenses may set out in separate counts, and any and all offenses hereunder may be joined in the same indictment, information, complaint or affidavit, and the accused may be prosecuted and convicted upon all or any of said counts so joined the same as upon separate indictments, information, complaint or affidavits, and judgment may be rendered on each count upon which there is a conviction. In any indictment, information, complaint or affidavit for any violation of this act, it shall not be necessary to describe the place where the offense was committed, except to allege that it was committed in the county

where the prosecution was had, unless the particular place where the violation occurred, constitutes one of the specific ingredients of the offense, nor shall it be necessary to negative any of the exceptions contained in this act, nor shall it be necessary to state the day or the hour when the offense was committed unless the day or hour constitutes a special element or ingredient of the offense.

Sec. 47. Privileged testimony denied. In all cases arising under this act no person shall be excused from testifying against another person by reason of such testimony tending to incriminate the person so testifying but the testimony so given, unless voluntary, shall in no case be used against the person so testifying in any criminal prosecution or otherwise.

Sec. 48. Duties of district clerks. It shall be the duty of the clerks of the district court of the several counties of the state to report to the Governor every three months, after this act takes effect, all actions pending in the district court for the violation of the provisions of this act, stating the name of the action, the name of the persons, and offense charged, and where trial has been had, a statement of the result thereof, and the fine or penalty imposed, if any. It shall be the duty of all prosecuting officers, either public or private, to report fully at least once every three months, after this act takes effect, to the Governor, the actions or prosecutions commenced under this act, giving the name of the action and the fine or penalty imposed, and if such prosecution or action has not been disposed of, to state fully its status. Such report shall be made ten days after the first day of August, November, February, and May of each year, and shall be compiled and kept on record by the Governor.

Sec. 49. Duties of officers-Governor.-It is hereby declared to be the duty of the Governor to enforce all of the provisions of this act, and he may call to his assistance in enforcing the provisions hereof all of the powers of the chief executive officer of the state. He may direct the attorney general and all other officers of the state to enforce the provisions of this act, in any and all cases. He may call to his assistance any number of persons necessary to see that said law is enforced, including such special attorneys, assistants and clerks and provide quarters for them, as he may deem necessary, and may authorize any of them to perform any and all duties in the enforcement of this act and any person so authorized is hereby vested with all of the

Ch. 187)

Governor-Delinquent Officers


powers possessed by prosecuting and peace officers. He may contract for their services and they shall be paid out of the general funds of the state. He shall have the power to suspend any prosecuting or peace officer who shall fail, neglect or refuse to enforce the provisions of this act, and may direct the attorney general or any other prosecuting officer to bring proceedings for the removal from office of any such officer who fails, neglects or refuses to do his duty. And he shall prepare and furnish any and all forms, blanks, blank affidavits, blank statements that are provided for, or are necessary, to properly carry out the provisions of this act.

The provisions of this section shall be held to be cumulative and not exclusive and shall not be construed to in any way relieve any local officer of his obligation and responsibility for the enforcement of the provisions of this act nor the enforcement of any ordinance or local laws relating to intoxicating liquors.

Sec. 50. Action against delinquent officers.-If any magistrate, county attorney, constable, policeman, sheriff, or other officer shall neglect, fail, or refuse to do his duty in the enforcement of the provisions of this act, any citizen of the county, the county attorney, the governor, or the attorney general of the state may file a complaint in any district court in this state, setting forth specific charges of such neglect and refusal against any of said officials. Said action shall be brought in the name of the state on the relation of the complainant. If the defendant shall be convicted he shall be ousted from his office, and a decree shall be entered accordingly, and if the case be appealed by the defendant the judgment of ouster shall not be superseded. The vacancy in such office so created shall be filled as provided by law. Either party may request that a judge be appointed from outside of the district by applying to the Supreme Court and said court shall make said appointment forthwith. The answer shall be filed within ten days from the filing of the complaint. The complaint and answer shall constitute the issues, and the trial shall be begun within twenty days of the filing of the complaint. The proceedings shall be summary in character, triable to the judge.

Sec. 51. Private counsel. Any citizen, association, or society may employ an attorney to assist the county attorney to perform his duties under this act, without cost to the county, and such attorney shall be recognized by the court and said county attorney as associate counsel in the proceedings, or said

attorney may bring and prosecute actions for violation of this act upon neglect or refusal of the county attorney, and no prosecution shall be dismissed over the objection of such employed attorney until the reasons of the county attorney for such dismissal together with the objections thereto of said employed attorney shall have been filed in writing, signed by counsel, and fully considered by the court and a proper finding and order duly entered by the court.

Sec. 52. Civil damages. Any wife, child, parent, guardian, employee, or other person who shall be injured in person or property or means of support, by intoxication of any person, shall have a right of action against any person, association, or corporation, who by himself, his agent, or servant illegally furnished the intoxicating liquor that caused or contributed to the intoxication of such person, for all damages sustained. Any manufacturer, wholesale druggist, or registered pharmacist holding a permit shall pay all damages that the community or individuals may sustain in consequence of any unlawful sale by himself, his agent or servant of intoxicating liquor, and he shall support all paupers, widows, and orphans and pay the expenses of all civil and criminal prosecutions growing out of or justly attributed to such unlawful sale; said damages and expenses to be recovered in any court of competent jurisdiction by any civil action and on the bond named and required in this act, a copy of which, properly certified, shall be received in evidence in any court in this state, and it shall be the duty of the proper clerk to deliver on demand such copy to any person requesting the same. It shall be lawful for any married woman or any other person at her request to institute and maintain, in her own name, a suit against any such manufacturer, druggist or pharmacist, on his bond, for all damages sustained by herself and children on account of any such unlawful sale, and the money when collected shall be paid over for the use of herself and children.

Sec. 53. Liability of counties, cities and villages for damages. Every person, married woman, minor or other person under legal disability, who shall be injured in his, her or their property, person or support, in consequence, in whole or in part, of the intoxication of any person, and shall be able to prove that the mayor of the city, or chairman and board of trustees of the village, or the county attorney or the county board of the county or in metropolitan cities and in cities of the first class, that

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