complaint upon which the warrant was issued does not state facts sufficient to constitute a public offense; and, second, that chapter 26, Laws 1879, for the violation of which relator is restrained of his liberty, is in conflict with article 20 of the constitution of the state of North Dakota, and consequently repealed thereby. The writ was issued January 22, 1890. On the 30th day of January, 1890, respondent made return to said writ, admitting the restraint, and alleging the arrest and proceedings before the magistrate in justification thereof. Relator moved to quash the return.
The decision of the question hinges upon the effect, if any, that article 20 of the constitution has upon pre-existing statutes. The act of congress known as the Omnibus Bill, and under which North Dakota became a state, contains the following: “And all laws in force, made by said territories at the time of their admission into the Union, shall be in force in said states, except as modified or changed by this act, or by the constitution of the states respectively.” Omnibus Bill, § 24. § 2 of the schedule of the constitution of this state reads as follows: “All laws now in force in the territory of Dakota which are not repugnant to this constitution shall remain in force until they expire by their own limitation, or be altered or repealed.” From the first organization of the territory of Dakota it was the policy of its citizens to restrain the sale of intoxicating liquors. The earlier enactments on this subject are codified as chapter 35, Pol. Code 1877, which is a complete license law. The first section is as follows: “It shall be unlawful for any person, by himself, by agent, or otherwise, to sell in any quantity intoxicating liquors, to be drank in, upon, or about the premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building, or premises, or other places of popular resort, connected with said premises where sold, without having first obtained a license and given bond as hereinafter provided.” § 10 of that act recites the penalties for a violation thereof, declaring such violation a misdemeanor punishable by fine of not less than $20 nor more than $150. In 1879 the territorial legislature passed a new and complete act upon this subject, known as “Chapter 26, Laws 1879,” and being the law
