133 Ky. 50 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The appellee, Peter Campbell, was arraigned before the police court of Nicholasville (a city of the fourth class) under the following warrant: “Nicholasville Police Court. The Commonwealth of Kentucky, to the Chief of Police of Nicholasville, or to any Sheriff, Coroner, Jailer, Marshal or Policeman in this State: You are commanded, to arrest Pete Campbell and bring him before the Nicholasville police court to answer to the charge of said Commonwealth (which sues for the use and benefit of the board of councilmen of the city of Nicholasville) of a breach of the ordinance of said city, to-wit: Bringing into the town of Nicholasville spirituous, vinous or malt liquors upon his person or as his personal baggage exceeding a quart in quantity, committed by him in said city on or before the 19th day of February, 1908. Given under my hand as judge of said court, this 19th day of February, 1908, John Tray-nor, J. N. P. C.” He was tried and found guilty in the police court, and a fine of $100 assessed against him. Upon appeal to the Jessamine Circuit Court, the judgment of the police court was reversed, and the warrant dismissed. From this judgment the Commonwealth has appealed.
“An ordinance to regulate' the carrying, moving, delivering, transferring or distributing intoxicating liquors in the town of Nicholasville.
“Be it ordained by the board of councilmen of the town of Nicholasville:
“(1) It shall be unlawful for any person or persons, individuals or corporations, public or private carrier to bring into, transfer to any other person or persons, corporations, carrier or agent, or servant, deliver or distribute in the town of Nicholas-ville, Kentucky, any spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called; either in broken or unbroken packages, provided individuals may bring into said town, upon their person dr as their personal baggage, and for their own private use, such liquors in quantity not exceeding one quart. - .
“ (2) Each package of such 'spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called, whether broken or unbroken packages, brought into and transferred to other person or -persons, corporations, carrier or agents, or servants, delivered or distributed in -said town shall constitute a separate offense.
“(3) Any person or persons, individual dr corporation, public or private carrier violating the provisions of this ordinance shall be fined "not less than $50 nor'more than $100'for each offense. '
“(4) Próvidéd the provisions of this ordinance do not apply to interstate commerce' carriers when engaged in interstate commerce transportation.
“(5) This ordinance shall take effect and be in force from and after its passage and publication. “Approved this 7th day of February, 1908.
“W. L. Steele, Mayor.”
“The board,of council shall have power * * * within the city—
“(1) To pass ordinances not in conflict with the Constitution or laws of this State or of the United States, and to impose and ■ collect license fees and taxes.on stock used for breeding purposes, and on all franchises, trades, occupations and professions.”
“ (7) To prevent and remove nuisances at the cost of the owners or occupants, or of the parties upon whose ground they exist, and define and declare by ordinance what shall be a. nuisance within the limits of the city, and to punish by fine any person for causing or permitting a nuisance.”
“(27) The council shall have power; by ordinance, to license, permit, regulate, or restrain the sale of all kinds of vinous, spirituous or malt liquors within the limits of the city,'or to restrain or prohibit the sale thereof within one mile of the limits thereof-, provided nothing.herein shall be--construed as granting the power or right-to one-town or city to license, permit, regulate, restrain oh prohibit the -sale of vinous, spirituous or malt liquors in any other town or city, and-may fix-the penalty or fine for violation of an-ordinance under this section at-any sum not exceeding one -hundred dollars; provided, that no license to sell such liquors, to be drunk-on the premises where sold, granted under-this section, shall be for -a less amount than -two-hundred and fifty dollars nor for a greater amount-than one-thousand dollars, For -license'to'-séll'same by retail; for'medical purposes,-they-may charge-not less than fifty dollars-nor more than- five hundred dollars. For license to -sell same-by ¡retail in quantities n-o-t-less.than- a -quart -they may charge not- less than: one diundred dollars nor more- than- five- hundred dollars. ■ The board of coun*54 oil shall, at any time, have the power and authority to refuse to grant any license, and to suspend or revoke any license granted under or by virtue of the authority conferred by this section, when the board shall deem it necessary so to do in order-to preserve the peace or good morals of said town, and said board of council shall be. the exclusive judges of the necessity.”
“33. Said city council shall have .legislative power to make by-laws and ordinances for the carrying into effect of all the powers herein granted for. the government of the city, and to do all things properly belonging to the police of incorporated cities. Said board of council may change the boundary line of any ward .or.wards of any city now divided into wards,. or hereafter ■ divided into wards, under the provisions of this act, not less than sixty days previous to any November election.’'’, .
It will be observed that the warrant issued against the defendant charges him with bringing into the town of Nicholasville spirituous, vinous, or ■ malt liquors, upon his person or as,his personal baggage, exceeding a quart in quantity. So far as the warrant is concerned therefore there is nothing to negative the idea but what the defendant had the liquor for his own use, and for no other purpose. We presume it will not be controverted that, if the council of Nicholasville could limit the quantity of liquor which a person might have in his possession for his own use to a quart, it could prohibit his having in his possession any quantity whatever. We are confronted therefore with the proposition as to whether or not, in this State, it is competent under the police power for any legislative body to prohibit the possession or use of liquor by one for his own necessity or comfort. Broadly stated, the question before us is whether or not it is competent for the Legislature to prohibit a citizen from having in his own possession spirituous liquor for his own use. It will not require
When the constitutional convention was in session, it was confronted with the question of how the use of spirituous liquor should be regulated. There were two forces brought strongly to bear upon, the convention: First, there were the prohibitionists, who desired to facilitate and advance in every way the means of banishing liquor from the State; and on the other hand, there were those who were engaged in the business of manufacturing and selling liquor, who strongly advocated the utmost freedom of the citizen with reference to its use. The convention gave patient and full hearing' to both parties to this controversy, and, as a result, formulated a system by which the sale of vinous, spirituous, or malt liquors throughout the State was to be regulated by general laws. By subsection 27 of section 59 of the Constitution, it is provided that the General Assembly shall not pass local or special acts to provide a means of taking the sense Of the people of any city, town, , district, precinct, or county, whether they wish to authorize, regulate, or prohibit therein the sale of vinous, spirituous, or malt liquors or alter the liquor laws. And by section 61 it is provided that
Now, can it be contended with any show of reason that the framers of the Constitution intended to leave the question of the retailing of liquor in a given district to a vote of the majority of the qualified voters in the district, and yet-leave it in the power of the Legislature upon its own, motion to prohibit the possession of liquor by the citizen? , Before the present Constitution, it was competent for the Legislature to. prohibit -the sale of .liquor by retail in any county, town, or district without any vote being taken by the citizens, or without' giving them any voice in the mattep; but no one doubts that, under the present Constitution, it is not competent for the Legislature, without a vote of the citizens; to declare the retailing of liquor in any part ,of the state unlawful. How vain it would-be, then, for the framers of the Constitution to thus: take from the Legislature the power to regu
The fact that the Constitution, by section 154, leaves with the General Assembly the power of restricting or prohibiting the sale or gift of liquor on election days, clearly shows that the convention had it in mind that but for this special power the Legislature could not even regulate the sale of liquor on election days. The history of our state from its beginning shows that there was never even the claim of a right on the part of the Legislature to interfere with the citizen using liquor for his own comfort, provided that in so doing he committed no offense against public decency by being intoxicated; and we are of opinion that it never has been within the competency of the Legislature to so restrict the liberty of the citizen, and certainly not since the adoption of the present Constitution. The Bill of. Rights, which,declares that among the inalienable rights possesed by the citizens is that of seeking and pursuing their safety and happiness, and that the absolute and arbitrary power over the lives, liberty,, and property of freeman.exists nowhere in a republic, not even in the largest rnajority,'would be but an empty sound if the Legislature could prohibit the citizen the. right of owning or drink
The difference between the absolute and relative rights of man, and the power of the government with reference thereto, is thus set forth by Blackstone in his Commentaries on the. Laws of England: “The rights of persons considered in their natural capacities are also of two sorts, absolute and relative: Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons; relative, which are incident to them as members of society, and standing in various relations to each other. The first — that is, absolute rights — will be the subject of the present chapter. By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties which man is bound to perform, considered as a mere individual, it is not to be expected that any human mu
Cooley, in his work on Constitutional Limitations, thus states the rule with reference to sumptuary laws, and the right of the Legislature to enact them: “In former times sumptuary laws were sometimes passed, and they were even deemed essential in republics to restrain the luxury so fatal, to that species- of government. ' But the ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the-present age. The right of every man to do what he will with his own, not interfering with the reciprocal rights of others, is accepted among the fundamentals of our laws.” Pages 549, 550.
John Stuart Mill, in his gréat work on Liberty, says: “The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of
In discussing the limits of the authority of society over the individual, our author says: “Though society, is not founded .-on-a contract,, and ¡though no good purpose is answered by inventing a contract-in order to deduce social obligations-.from-it,- every, one who receives-the-protection'of society .owes' a return-for
In the case of State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, the Supreme Court of West Virginia held that a statute prohibiting the citizen to keep in his possession, for another, spirituous liquors, is unconstitutional and void. It is from the opinion in this case that Black adopted the quotation given above. The principle is rested upon the broad proposition that every person has a right to keep or use liquor for his own benefit, or to keep it for another, provided in so doing he does not attempt to sell it or otherwise use it so as to injure the public.
In the case of State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299, it was held by the Supreme Court of North Carolina that a statute forbidding one under penalty to carry into a county, where the sale of intoxicating liquors is prohibited, more than a half gallon of such liquor on any one day deprives him of his constitutional property right in case he has no intent to sell it. In the opinion in this case the question before us is most learnedly discussed in all of its phases, and the principle which we have announced is upheld after a review of all the authorities.
In discusing the question before us, we have assumed that the general council of the city of Nicholas-
The judgment of the circuit court, quashing the warrant in this case, is affirmed.