Ex parte Swann

96 Mo. 44 | Mo. | 1888

Black, J.

The act of April 5, 1887, entitled “An act to provide for the prevention of the evils of intemperance by local option,” etc., was adopted, by a majority vote, as the law of all that part of Pike county outside of the city of Louisiana, a city of more than twenty-five hundred inhabitants.

Public notice of the result of the election was duly given. Thereafter the petitioner Flem Swann was, by a justice of the peace, found guilty of selling intoxicating liquors in violation of the law. The justice assessed the punishment at a fine of three hundred dollars and three hundred and sixty-five days imprisonment in the county jail, and until said fine and costs were paid. The petitioner seeks to be discharged from imprisonment under the commitment by the writ of habeas corpus. The questions presented arise upon a demurrer to the return made to the writ by the keeper of the jail.

Some of the questions sought to be made under the general grounds of the demurrer were determined in the recent case of the State ex rel. v. Pond, 93 Mo. 606. Besides holding that the act was not a'delegation of legislative power, it was there held that the act was hot in conflict with that portion of section fifty-three, article four of the constitution, which provides : “In all other cases where a general law can be made applicable, no local or special law shall be enacted.” We adhere to what is there said in respect of both of these questions-

, It is now said the act violates that clause of the same section and article of the constitution which declares: “Nor shall the general assembly indirectly enact such special or local law by the partial repeal of a general law,” because it operates its a suspension or repeal of the “dram-shop law,” and the “druggists’ and pharmacists’ law,” both of which are general laws of the state. The dram-shop law, as amended by the act of 1883, in its general scope, regulates the traffic in intoxicating liquors. When the act in question is adopted by a majority vote, it becomes unlawful to sell or barter in any manner any kind of intoxicating liquors. The one law regulates the sale, the other prohibits it altogether, and it is also provided by the seventh section of the act of 1887, that when an election has been held and a decision had either “for” or “against” the sale of intoxicating liquors, the question shall not be again submitted within four years. It is plain that the two laws cannot be in force in the same locality at the same time, so far as the sale of intoxicating liquors is concerned. The legal effect of the adoption of the act of 1887 is to suspend the operation of the dram-shop law in the locality where the former has been adopted, so long as if remains in force. But it does not follow from all this that the law violates the provision of the constitution last quoted. If it is not a “local or special law,” as was held in the case last cited, then the enactment of it is not the enactment of a “special or local law” by the partial repeal of a general law. It remains a general law within the meaning of the constitution, though it does suspend the operation of another general law in the counties and localities where adopted.

The eighth section of the act of 1887 in express terms provides that nothing in the act shall be so construed as to prevent the sale of wine for sacramental purposes, nor to prevent licensed druggists or pharmacists from furnishing pure alcohol for medical, art, scientific and mechanical purposes. It does not, it is plain to be seen, interfere in the least with the ‘ ‘ druggists’ and pharmacists’ law,” as that law stands amended by the act of March 29, 1883. Acts, p. 89.

A further objection to the statute is, that it contravenes section one of article fourteen of the constitution of the United States, which declares that no state shall ‘ • deny to any person within its jurisdiction the equal protection of the law.” Our statute, which allows the state fifteen peremptory challenges in capital cases in cities having over one hundred thousand inhabitants, whilst elsewhere the state is allowed only eight peremptory challenges, was assailed in Hayes v. Missouri, 120 U. S. 68, as being in conflict with the above prohibitions upon state legislation. The supreme court of the United States then said: This amendment “does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and the liabilities imposed.” And again it was said in Missouri v. Lewis, 101 U. S. 30, speaking of the same constitutional provision: “ It contemplates persons and classes of persons. It has no respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the place or municipalities for which such regulations are made.”

The law in question applies alike to all persons within the territory or locality where it is adopted. There is no discrimination whatever in favor of or against persons or classes of persons within such territory. They are all treated alike. It is true the penalties for violating this law are not the same as those for violating the dram-shop law. They are, indeed, not the same offenses. In the one case the offense is the violation of a law which allows and regulates traffic in intoxicating liquors as a beverage, and in the other case the offense is for selling such liquors where the sale of it is prohibited by law. But aside from this the law makes no discrimination as to persons in the territory where it takes effect, and that is enough to show that it in no way contravenes the section of the constitution of the United States before quoted.

For a violation of the law in question the punishment is fixed at a fine of not less than three hundred nor more than one thousand dollars, or by imprisonment in the county jail not less than six nor more than twelve months, or by both such fine and imprisonment. The fine imposed in this case, and the imprisonment inflicted is within the statute, and we cannot say that the fine Is excessive or the punishment cruel or unusual within the prohibition of section twenty-five, article two, of the state constitution. This court held, in State v. Williams, 77 Mo. 311, that imprisonment in the penitentiary for two years for obtaining money by false or fraudulent representations was not cruel and unusual. The usual punishment for the violation of such statutes is a fine or imprisonment, or both.

The demurrer to the return is overruled and the petitioner remanded to the custody of the jailer of Pike county.

Ray, J., absent; Sherwood, J., dissents. The other judges concur.