55 N.W. 883 | N.D. | 1893
The relator was informed against in the Cass County District Court for violation of the provisions of the constitution and statutes of the state prohibiting the sale of intoxicating liquors. He pleaded guilty, and was sentenced to the county jail of Cass County for the term of 90 days, and to pay a fine .of $300. To relieve himself from confinement under this sentence he procured a writ of habeas corpus from this court. The petition for the writ, with the exhibits attached, alleges, in substance, that such imprisonment is illegal, because the charge against relator does not state facts sufficient to constitute a public offense, in that the same is based upon article 20 of the constitution of the State of North Dakota, and upon Ch. no of the Laws' of said state for 1890. That said article 20, and the said act based thereon, are null and void, for the reason that said article was never adopted by the people of the state as required in the enabling act, hereinafter more particularly noticed; and for the further reason that said Ch. no, was never passed by any legally constituted legislature, and that said chapter, independant. of said article 20, is void, for the reason that the title does not embrace any object to prohibit the sale of intoxicating liquors, but only to prescribe penalties for its unlawful sale; and that the act violates § 61 of the state constitution, which provides that no bill shall embrace more than one subject, which shall be expressed in the title; and that said act violates both the federal and state constitutions, in that it inflicts cruel and unusual punishment. The writ was served on the defendant, Barnes who is sheriff of Cass County,
To understand the points made under the first proposition it is necessary to state that the enabling act, approved February 22nd, 1889, under the terms of which North Dakota, South Dakota, Montana, and Washington became states, after providing for constitutional conventions to formulate constitutions, and the submission of such constitutions to a vote of the qualified electors of the proposed states, provides in § 8 that “at the elections provided for in this section the qualified voters of said proposed states shall vote directly for or against the proposed constitutions, and for or against any articles or propositions separately submitted. The returns of said elections shall be made to the secretary of each of said territories, who, with the governor and chief justice thereof, or any two of them, shall canvass the same, and, if a majority of the legal votes cast shall be for the constitution, the governor shall certify the result to the president of the United States, together with a statement of the votes cast thereon, and-upon separate articles or propositions, and a copy of the said constitution, articles, propositions, and ordinances. And if the constitutions and governments of said proposed states are republican in form, and if all the provisions of this act have been complied with in the formation thereof, it shall be the duty of the president of the United States to issue his proclamation announcing the result of the election in each, and thereupon the proposed states which have adopted constitutions and formed state governments as herein provided shall be deemed admitted by congress into the Union, under and by virtue of this act, on an
Chapter no, Sess. Laws 1890, was enacted by our first state legislature undoubtedly in response to what the legislature regarded as its duty under the provisions of article 20 of the constitution, and to provide the necessary machinery for the proper
All the questions pertaining to defects in the title of this act in this case were raised and fully discussed in State v. Haas, 2 N. D. 202, 50 N. W. Rep. 254. These same objections are here urged,
The next point made by relator — that the statute is unconstitutional, because it inflicts cruel and unusual punishment — hardly merits mention. It is legal history that all jurisdictions that have sought to prohibit or effectually control the sale of intoxicants have found it necessary from time to time to increase the rigor of the punishment for the violation of prohibitory and regulating laws. The matter is peculiarly of legislative cognizance, and we certainly see nothing in this statute that indicates that the legislature has provided for greater punishment than is requisite to the proper execution of the law. Nor does the fact that by such statute the sale of intoxicants for lawful purposes is confined to druggists render the statute open to the charge of want o'f uniformity in its operation. It applies to all persons who come within its terms, and no person is prohibited from placing himself within its terms. That is all the constitutional provision requires. Trust Co. v. Whithed, 2 N. D. 82, 49 N. W. Rep. 318. And it was clearly a wise and proper exercise of police power to so limit the sale. If all persons indiscriminately were permitted to keep and sell intoxicants for the enumerated lawful purposes it would be quite impossible, as all experience teaches, to prevent illegal sales. The statute increases the punishment for second and third offenses. This is urged as an objection to it, but no authority sustaining the objection is cited, nor do we find any. Such statutes are'very common, and are universally upheld. Nor can we see that the fact that the increased punishment passes the arbitrary line fixed by the legislature between misdemeanors and felonies can in any manner change the principle. The writ must be discharged, and the relator remanded to the custody of the defendant, to be dealt with according to the terms of his commitment; and it is so ordered.
Note — For other cases upon the liquor law, see, State v. Swan, 1 N. D. 5; State v. Fraser, 1 N. D. 425; State v. Haas, 2 N. D. 202.