86 Ky. 423 | Ky. Ct. App. | 1887
delivered the opinion op the court.
The application of the appellant, E. H. Bnrnside, to the Lincoln County. Court for “ a tavern license, with the privilege of retailing liquor,” was rejected upon the ground that it was absolutely forbidden by the act of the Legislature, approved April 14, 1886, and entitled “An act to authorize the people of Lincoln county to vote on prohibiting the sale of liquors, and fixing the penalty for the sale of liquors in said county.” (Acts of 1885-6, vol. 1, p. 1400.)
The circuit court, upon appeal, affirmed this ruling in so far as it denied the privilege of retailing spirituous liquors ; and doubtless in doing so was controlled by the same reason that influenced the lower court. We are now asked upon several grounds to declare the law unconstitutional.
Section 37 of article 2 of the Constitution provides: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title,” and it is claimed that in this instance this provision of the organic law has been disregarded.
It is well settled that legislation will not be declared unconstitutional by the judiciary, if it be merely of doubtful character in this respect. It must be clearly violative of the fundamental law to authorize the exercise of such power.
It is said, however, that the title does not sufficiently express the subject or object of the act; indeed, that it does not do so at all, and that the law is masquerading under a false name. It, however, states that it is an act to authorize the voters of the county “to vote on prohibiting the sale of liquor,” and' that it is also one fixing the penalty for a sale in violation thereof. The act relates to nothing else. Certainly the reading of the title would inform the hearer of the entire nature
It was settled in the case of the Commonwealth v. Weller, 14 Bush, 218, and the doctrine is supported by the text-books and other authorities, that an act of the Legislature relating to a county may be submitted to its voters, not for the purpose of determining whether it is a law, but whether they will accept its provisions.
It is insisted, however, by distinguished counsel, with zeal and ability, that liquor is property; that this act forbids its sale, and is in effect a spoliation of it; that it is an exercise of absolute arbitrary power over the property and individual right of the freeman, and is, therefore, interdicted by our Bill of Rights and the Fourteenth Amendment to the Constitution of the United States. It is now settled, however, by not only the decisions of the Supreme Court of the United States, but by the highest court of nearly every State in the Union, that the Legislature of a State may,
If an evil which destroys the morals, the fortunes, and the lives of so many of our best citizens ; one which is so fruitful of pauperism and misery, and productive of probably eight-tenths of the crime in the country, were not subject to the legislative power, it would be strange indeed. If so, then all manner of crime is to be punished, and yet the people are powerless to wipe out the active cause of it. Surely one can not exercise a right, and much less a mere privilege, which may be revoked at any time, if it be destructive of the public morals, or public health, or public peace, and yet be beyond the reach of the legislative power. No one has ever had the right to sell whisky in this Commonwealth save as a privilege. It has always been the creature of license. The police power is properly and necessarily a broad one. It is difficult, if not impossible, to fix its limit. The property-owner acquires and holds his property subject to the right of the Legislature under this power to control it, whenever the public peace or the public morals or the public health is involved otherwise the many would be at the mercy of the few ; lawlessness and disorder would take the place of law and order, and the appetites and passions of a few persons would imperil the public peace and endanger our social fabric. The individual profit of the few, arising from the wreck of fortunes, homes and lives, must give way to the happiness and security of the many. It belongs to the legislative department of the government
We have as yet not seen an official copy of the decision of the Supreme Court of the United States in the Kansas liquor cases, quite recently decided, of Mugler v. State of Kansas, and the State v. Ziebold and others, [123 U. S., 123;] but as reported in the public prints, the highest court in the land has unanimously declared that this right of protection — this police power — extends so far that the Legislature of a State 'may prohibit the manufacture of liquor for the maker’s own use as a beverage, if in its judgment this would tend to defeat its efforts to guard the community against this evil.
The prohibition of the manufacture or sale of liquor does not deprive the owner of his property. It is not taking it without due process of law. It is not an exercise of the right of eminent domain, by which the owner can be deprived of his property only upon the condition of compensation. A nuisance merely is abated, and the citizen forbidden to do that which is injurious to the community.
It is insisted, however, that the law now under consideration is unconstitutional, because of its sweeping
It was said in the case of the Commonwealth v. Wright, 79 Ky., 22: “Only those who are prejudiced by an unconstitutional law can complain of it.”
Mr. Cooley, who i's probably the most distinguished writer of the present day upon constitutional power and its limitations, enforces this view ; and in the case of Sullivan, &c., v. Berry’s Administrator, 83 Ky., 198, it was fully considered and re-affirmed upon a review of
The appellant only asks that lie be allowed “to retail” liquor by opening a bar-room in a hotel. He has no interest, so far as the record discloses, in the sale of it for medicinal or religious purposes. He makes no such question. The right he asks can not be considered as fairly involving it; and the court has neither the inclination nor the right in this character of a case to go out of its way in search of such a question, or to consider it at the instance of one who has no right to ask it, because it does not affect his rights, and is not involved in the consideration of the privilege sought by him.
Judgment affirmed.