That part of the language above quoted, to wit, "in the first instance" is not very specifie, and might be said to be somewhat uncertain, and yet I am satisfied that it was intended to cover the special election to be held April 2, 1918, to fill the vacancy in the United States senate. The language of this bill regarding special elections undoubtedly contemplates the case of a special election to fill the vacancy in any office that ordinarily is filled at a full term for that office at the general fall election.

Intoxicating Liquors-A transfer of license in question to a new location is void and license is still in force in old location; a new license may be granted the new location July 1st, next.

MARION F. REID,

District Attorney,

Hurley, Wisconsin.

March 11, 1918.

I have your letter of March 7, in which you answer some of the questions submitted to you by me under date of January 26. They relate to the statement of facts upon which was based the official opinion to you under date of January 21, 1918. It now appears that the owner of the building which was destroyed by fire did not have the license in his own name but the license was in the name of a tenant and the tenant had been licensed at the same location since the 30th day of June, 1907; that the building was destroyed on the 27th day of December, 1917; that the license to the tenant was granted on the first day of July, 1917; that a new license was not granted to the tenant in the new location, neither did the tenant pay another license fee but he was given permission to transfer his saloon business from the old location to the new location, on January 10, 1918, which clearly appears from a copy of the board proceedings enclosed in your letter.

From the facts in your letter, it appears that the license granted to the old location was a 'valid license. The transfer to the new location was absolutely void. See Opinions of Attorney General for 1912, p. 497, in which it was held that a

* Page 31 of this volume.

liquor license cannot be legally transferred to a new location, and if it is transferred there is no protection to the holder of the license for the new location. See also Opinions of Attorney General for 1908, p. 547.

The attempted transfer was, therefore, absolutely void, and the license is still in force in the location for which it was granted. There is nothing to prevent the granting of a new license in said location beginning the first day of July, at the expiration of the former license. The tenant who has sold liquor in the location to which it was attempted to transfer his license has violated our excise law in selling liquor in the new location and 'may be prosecuted therefor.

Intoxicating Liquors-Liquor taken from an intoxicated man riding on train can be disposed of only as provided in sec. 1565-3.

In your communication of March 6 you state that you have had some trouble in your city, which is dry, with some fellows who go to La Crosse or Chaseburg and come home in an intoxicated condition with a suitcase full of intoxicating liquor. You state that you have had them arrested and that they have pleaded guilty of having ridden on a railway train while intoxicated, and have been punished, but you desire to know what disposition can be made of the liquor. You inquire whether there is any law that will permit you to permanently dispose of the liquor and not return it to them.

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Sec. 1565-3, Wis. Stats., is the only one applicable to the situation and provides as follows:'

"The conductor of any railway train may take from any person found violating any of the provisions of section 1565-1, any 'intoxicating liquor then in the possession of such person, and deliver the same to the nearest station agent, giving the person from whom it is taken a receipt therefor. Upon the presentation and surrender of such receipt, within ten days. thereafter, such liquor shall be delivered to the person present

ing same, and if not so delivered within such time shall be destroyed by such agent." ."

I find no authority 'in any other statute authorizing a confiscation and destruction of the liquor. In view of that fact, the above section of the statutes must be followed where the liquor is taken away from the parties in question.

Intoxicating Liquors-If a license is surrendered for a location which may be legally licensed a new license may be granted therein within a reasonable time.

A. L. STENGEL,

District Attorney,

Fort Atkinson, Wisconsin.

March 11, 1918.

In your communication of March 7 you inquire whether the common council of a city which grants more licenses than one for every five hundred or fraction of the inhabitants, as authorized by the Baker Law, has the power to grant a saloon license to another party upon a location in which a license was granted on July first of the preceding year, but which said license has been surrendered by the one to whom it was given. This question must be 'answered in the affirmative, provided it is done without any unreasonable delay after the surrender of the license.

What will be an unreasonable' delay will depend upon all the circumstances in each case. In New York it was held that two months' delay was unreasonable where a license could have been taken out immediately after the surrender of the former license. In the case of Koch v. State, 157 Wis. 437, our court intimated that under the Baker Law it was necessary to keep the premises under license continuously, for it italicized the word "continued" twice in its opinion. A reasonable time. would undoubtedly be permitted to get out a new license after the former license is surrendered. It may be that our court would hold that a reasonable time would be a sufficient time to make the necessary application and publication of 'said application for a license, unless there is some reason in the circumstances that would necessitate a 'longer delay without fault or neglect on the part of the party interested.

Municipal Corporations-Ordinances-Criminal Law-Fines -Fines in criminal cases go to the state but local ordinances may cover criminal acts; fines collected upon such ordinances belong to the municipality.

Offender's 'may be prosecuted under both the statute and the ordinance in such cases.

HONORABLE HENRY JOHNSON,

State Treasurer.

March 12, 1918.

You have transmitted with 'your letter of March 11, 1918, report of the Kenosha county treasurer upon fines received by him during the year 1917.

It appears from said report that fines aggregating $1,676 were imposed by the municipal court of Kenosha county for violations of the speed limit. You say, as the fact is, that these fines seem to have been paid into the county treasury, and you inquire whether the state is entitled to such fines, or

"Is there a special state ordinance whereby we can prosecute that class of offenders and retain these fines for state purposes?" The clear proceeds of all fines collected in the several counties for any breach of the penal laws, * shall be exclusively applied to the following objects, to wit: "1. To the support and maintenance of common schools. Sec. 2, art. X, Const.

This same direction is given by statute, and our supreme court has repeatedly held that the legislature has no power to divert these funds or use them for any other purpose. However, this provision of 'the constitution and the statutes made pursuant thereto applies only to penalties or fines for breaches of penal statutes and does not apply to penalties imposed for violations of a municipal ordinance and which are made payable to the municipal treasury. Platteville v. Bell, 43 Wis. 488.

But the common council of a city may enact ordinances for the government 'and good order of the city and for the prevention of crime, which ordinances impose penalties for acts which are also crimes or misdemeanors. In that situation the offender is open to prosecution under 'both the ordinance and the statute, and the satisfaction of a judgment under one prose cution is not a bar to the prosecution' under the other law. For the offense against this ordinance the city recovers the pulty

provided by the ordinance. For violation of the 'state statute which results from the same act, the state may also recover a fine if the statute imposes one. Ogden v. City of Madison, 111 Wis. 413.

The affidavit attached to the report of the Kenosha county treasurer, and also his letter of transmittal, indicate that all of such moneys were received by him. Yet I doubt that such is the fact. If it is a fact, then the fines imposed for violating the statutes regulating the use of motor driven 'vehicles were collected in prosecutions under the state statute and belong to the state. It is possible, if not probable, that the fines imposed for violating the speed limit were imposed in prosecutions under a city ordinance. That is a question of fact which should be investigated by you before closing this settlement with the county treasurer.

In addition to the general power of cities to pass ordinances of the character above mentioned there is specific statutory authority for city councils to pass such ordinances regulating automobile traffic.

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The provisions of sections 1636-47 to 1636-57, inclusive [which regulate the use of motor driven vehicles], shall not prohibit any city, village, county, town, park board or other local authorities from passing any ordinance, resolution, rule or regulation in strict conformity with the provisions of sections 1636-47 to 1636-57, inclusive, imposing the same penalty for a violation of the provisions of said seetions, where such violation occurs within such city, county, town or village," etc. Sec. 1636-55, Stats.

If an ordinance of that character relative to the speed limit is in force in Kenosha, the fines imposed thereby may be recovered by it for violations thereof. But, as before stated, the same act is also a misdemeanor and may be prosecuted in behalf of the state, and a' recovery therefor would go to the school fund.

There is a reason why the county treasurer in his report showed fines recovered under such an ordinance. The municipal court of Kenosha county, which was created by ch. 18, laws of 1909, sec. 22, requires:

"All fines and costs collected by the clerk of said court in actions for violation of the charter or any ordinance of the city of Kenosha, or any other action in which the city of Kenosha shall be a party, shall be accounted for and paid by such clerk