67 So. 651 | Miss. | 1915
delivered the opinion of the court.
Appellee was convicted by a justice of the peace upon an affidavit charging that he — ■
“on or before the 23d of November, 1914 unlawfully did then and there carry to the club of the Benevolent Protective Order of Elks, the same then and there being a social club and organization, for the use therein as a beverage, vinous, spirituous, malt, alcoholic, and intoxicating liquor, to wit, one bottle of whiskey then and there containing more than one-half of one per cent of alcohol. ’ ’
Appellee appealed to the circuit court and there demurred to the affidavit, which demurrer was sustained. From the judgment of the circuit court sustaining appellant’s demurrer, the state prosecuted this appeal.
This prosecution was founded upon section 4, chapter 127, Laws Mississippi 1914, which read thus:
*31 “That no intoxicating liquor within the meaning of this act shall he kept in any locker or other place in any social club or organization for nse therein, and all persons carrying snch liquor to such club or locker for use therein or keeping the same for such use shall be guilty of a violation of this act.”
The demurrer of defendant below was sustained upon the theory that said section is unconstitutional because it contravenes the fourteenth amendment to the Constitution of the United States, as well as article three, section 14, of our state Constitution.
It was also urged below, and here, that chapter 127, Laws 1914, is void because it violates section 71 of the state Constitution, referring to the title of bills introduced in the state legislature.
The position of appellant, briefly stated, is that the statute under review recognizes that intoxicating liquors are property, and that one may lawfully own, possess, and use the same, and that the limitation upon this right imposed by the statute hears no reaáonable relation to the policy .of the state to suppress the sale of intoxicants, and also that the statute is discriminatory and denies to the persons involved equal protection of the laws. For these reasons, it is claimed that the statute violates the fourteenth amendment of the Constitution of the. United States and article 3, section 14, of our own state Constitution. To support his contention appellee cites the following cases, viz.: Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 26 L. R. A. (N. S.) 394; State v. Gillman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863; State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299, 14 Ann. Cas. 562; Commonwealth v. Campbell, 133 Ky. 50, 117 S. W. 383, 24 L. R. A. (N. S.) 172, 19 Ann. Cas. 159; Ex parte Mon Luck, 29 Or. 421,
Eidge v. City of Bessemer, supra, decided by the supreme court of Alabama, it seems to us, is the strongest case decided by any court in favor of appellee’s view of the law. In other words, this case carries the sanctity of the right to possess and use property much further than has any other court of last resort. This case was decided by a divided court; and, with the utmost deference to the opinion of the majority, we think the dissenting opinions are more convincing than the opinion of the court. The court in that case had under consideration an ordinance of the city of Bessemer, the first section of which is in these words, viz.:
“Be it ordained by the city council of Bessemer' as follows: That it shall be unlawful and constitute a violation of this ordinance, if any person, firm, or corporation in the city of Bessemer, have or keep on storage or deposit, or have therein, any vinous, spirituous, or malt liquors, or intoxicating beverages, or any beverage which is a product of maltace or gencase as a substantial ingredient, in or at any place where any drinks or beverages are sold or kept for sale.”
The second section of the ordinance provided that the above section should not apply to druggists of the class described thereby.'
As we interpret the opinion of the court, the gist of the court’s reasoning may be found in the following words of the opinion, viz.:
“It can be justified only, if at all, on the ground that it sustains some reasonable relation to the prohibition law in the way of preventing evasions of that law by trick, artifice, or subterfuge, under guise of which that law itself is violated. But it has no such relation. It undertakes to prohibit the keeping, in any quantity and for any purpose however innocent, of intoxicating li*33 quors and beverages in places which are innocent in themselves.”
It seems-clear to us that the court entirely underestimated the ability and cunning of the average illicit dealer in intoxicating beverages. The city council was much wiser, in our opinion, to the devious ways of this class of criminals. Given a “pop stand” or a soda fountain the blind tiger is practically immune from prosecution under any laws against the sale of intoxicating liquors. It would seem clear to us that violators of the law would have filed a dissenting -.pinion in that case, and could have pointed out with precision wherein the court erred, when it said that this ordinance sustains no reasonable relation to the prohibition law.
’The dissenting opinion, by Judge McClellan, points out the reasonable relation of the ordinance to the prohibition law in a much clearer way than we can hope to do, and we refer to his opinion and adopt the same as our own.
In State v. Gillman, supra, the supreme court of West Virginia was passing upon the validity of a statute of that state which denounced as a misdemeanor the keeping in possession of spirituous liquors of another by any person not the owner who had not obtained a license therefor.. 'The decision went off upon the court’s interpretation of the state Constitution, which declared “laws may be passed regulating or prohibiting the sale of intoxicating, liquors.” The court invoked the maxim “Expressio unius est exclusio alterius/’ holding that, the statute not having reference to the prohibition or sale of liquors, the legislature was without power to pass the statute. The court also held that the statute could not be upheld as coming within the police power of the state. We do not consider this decision of much value in this case, because the statute there reviewed is radically and substantially different
Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743, a Texas case, does not seem to be pertinent to this case. In that case the Texas court was construing a statute in the light of the state Constitution, referring directly to the question of the prohibition of the sale of intoxicants in local option territory. Referring to the constitutional provision, the court said:
“It occurs to us that this expression of the will of the people on the subject is exclusive of any other method to be pursued by the legislature. Whatever may be said as to the power of the legislatures of other states, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us: We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned.”
The court then quoted in full the opinion of the supreme court of West Virginia in State v. Gillman, supra, adopting and indorsing the same. The two courts were in accord, because of the similarity of their state Constitutions. It will be seen that the Texas case is expressly confined to provisions of the Constitution of Texas, and what would have been the decision of that court had there been no such constitutional provision it is, of course, impossible to conjecture.
State v. Goodwill, supra, we do not believe has any application here, except as a general statement of the principle requiring classification of persons .or corporations to be affected by the statute to be reasonable and not discriminatory, which principle we will discuss later.
“Spirituous, malt, or vinous liquors are property within the meaning of the Constitution, when its manufacture or sale is lawfully prohibited by statute; and when the legislature makes it an indictable offense to carry more than a certain quantity into a specified county, within a limited time, prohibiting its sale and not prohibiting its use, but authorizing its use for certain purposes, it is unconstitutional, for that it is taking of property without due process of law, and not within the police power of a state.” .
This case was also decided by a divided court. "We mention this fact for the purpose of showing that decisions along this line have usually found some judge of the court who dissents. We think the dissenting opinion in this case propounds a question hard to answer, and we quote the same, because, in our opinion it demonstrates the fallacy of the court’s reasoning, viz.:
“In limiting each person to a half gallon per day for his own use (for the law permits no sale)" the legislature was not niggardly. Besides, if the manufacture, though exclusively for one’s own use and out of one’s own apples and peaches, in the county can be forbidden by statute without breaking the Constitution, why cannot the importation of the same article across the county line, ’ in a greater quantity than a half gallon per day, even for one’s own use,- be prohibited by the same power? The truth is that, the legislature having jurisdiction of the subject, the limitations upon its exercise rest in the wisdom and sound judgment of the legislature, subject only to review by the people, not by the courts.”
Commonwealth v. Campbell, supra, a Kentucky case, the charge against the defendant was bringing intoxi
It is claimed by all the cases wherein the precise point now before this court was involved the power to enact legislation of this character was denied. We have endeavored to analyze the cases relied on to sustain this claim, and we believe no court (except possibly the Alabama and North Carolina courts), has gone so far as to condemn the legislation challenged in the present case.
Justice Holmes in Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1064, Ann. Cas. 1912A, 487, thus defines police power:
“It may be said in a general way that the police power extends to all the great public needs. ... It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and pre*37 ponderan! opinion to he greatly and immediately necessary to the public welfare.”
The supreme court of the United States has uniformly held that the adoption of the fourteenth amendment of the Constitution did not have the effect of denying to the state power to prescribe “regulations to promote the peace, health, morals, education, and good order of the people.”
It may be said that the presence and use of intoxicating liquors at a place where a number of people gather for the enjoyment of social intercourse would have a tendency to disturb the peace and quiet of the people there assembled. It is not a stretch of the imagination to assume that one intoxicated man may, and indeed frequently does, annoy, disgust, and offend the. moral sense of a large number of other people engaged in the discussion of serious and important social questions. The affectionate, or the bellicose, inebriate can do much to arouse the ire.and invite the active resentment of his victims. And so the legislature deemed it wise to protect the 'members of social clubs, and thus promote the public peace by preventing the carrying of intoxicants into the clubrooms — to be kept or used there — ■ to the discomfort of sober members and to the peril of the public peace. This thought was no doubt in the legislative mind, in so far at least as the statute might apply to the class of social clubs organized and conducted for the encouragement of social intercourse, and for tbe improvement and enjoyment of their fortunate members.
There was another thought which probably prompted the legislation in question. It is well known to those familiar with the enforcement of the laws against the sale of intoxicants that many schemes, artifices, and devices have been originated for the purpose of evading the law. Clubs and lodges have been organized for no other purpose than to sell intoxicating liquors. The
To check the pernicious and cunning activities of the professional criminal — the man who once a blind tiger is always a blind tiger — the legislature adopted a broad classification to cover any and all social clubs. This was necessary to make the statute at all efficient. In this statute the limitation upon the use of liquor is confined to social clubs. The owner may carry it anywhere else and use it to any extent. There is no attempt to destroy the personal liberty of the owner to enjoy the seductive influence of liquor, or even to get drunk. So far as this statute is concerned one may own any amount of liquor, use it as he sees fit, and even carry it anywhere except to a social club or organization. Therefore it is said the statute denies the owner, as a club member, the equal protection of the laws.
There was a time, not long ago, when many intelligent and virtuous citizens of this state resented any interference by the legislature whereby it undertook to prohibit the sale of intoxicating liquors. Even laws submitting to the people of towns or counties the option of prohibiting the sale in any given town or county was indignantly denounced as efforts to deprive the dissenters of their natural and inalienable rights. There was a time, perhaps, when this sentiment represented the “prevailing morality” of many communities. We have traveled far since, until now it' may be safely said that the “preponderant opinion,” as well as “the prevailing morality” is willing and anxious to prohibit even the possession of alcoholic liquors as a crime against peace, morality, and good government. We do not think we yield to a clamorous
We quote the words of an unknown writer as fairly representative of the present “prevailing morality” of the people of this state:
“Whiskey is a good tiling in its place. There is nothing like it for preserving a man when he is dead. If you want to keep a dead man put him in whiskey, if you want to kill a live man put whiskey in him.”
Is the writer a wag or a philosopher? This question will be answered by “dyed in the wool ‘individualists’ ” but one way, but we apprehend that their answer would not be approved in a state-wide primary.
There is abundant authority, we think, for our view. We will now cite some of the cases which are in line with our ideas of the law. These cases are collated bv the annotator of Eidge v. Bessemer, reported in 26 L. R. A. (N. S.) 395 et seq.:
“Thus, in Selma v. Brewer, 9 Cal. App. 70, 98 Pac. 61, the court said that it was of opinion that a municipal ordinance, declaring it unlawful for any person, firm, or corporation, company, club, or association to‘have, keep, possess, provide, or store’ any spirituous, etc., liquors within a town, but permitting a licensed pharmacist to sell the same, taken as a whole, is consistent with the provisions of the Constitution authorizing any city to make and enforce police regulations not in conflict with general laws, and represents only a proper exercise of the power expressly vested by that instrument in cities, counties, towns, and townships.
“An ordinance prohibiting the owner or keeper of a retail grocery store, where meat, grain, fruit, provisions or other articles are exposed for sale, from keeping therein, or in any inner 'room adjacent thereto, or*40 on the premises connected therewith, any spirituous, etc., liquors, unless licensed by the city to retail the same, is warranted by charter authority to pass any by-law or requirement that shall appear requisite for the city, or for preserving peace, order, and good government. Charleston v. Heisembrittle, 2 McMul. 233. The court said that there could be no question that the restraints imposed by such ordinance were within the ordinary powers of legislation, there being nothing in the restrictions imposed by the Constitution of the state or United States restraining the legislature from passing-a general law like that under consideration, or from granting power to do so to municipal corporations.
“So an ordinance providing that no intoxicating liquors shall be used or kept in any refreshment saloon or restaurant for any purpose whatever is valid, notwithstanding such liquors are not kept for sale, and the keeping thereof elsewhere is not restricted. State v. Clark, 28 N. H. 176, 61 Am. Dec. 611. See the quotation from this case in the dissenting opinion of McClellan, J., in Eidge v. Bessemer.
“And it. was held in Cohen v. State, 7 Ga. App. 5, 65 S. 35. 1096 (one justice, however, dissenting), that on a prosecution for the violation of a law declaring it unlawful for any one to keep on hand at his place of business any intoxicating liquor, evidence as to the respondent’s purpose in keeping it was properly excluded as irrevelant and immaterial.
“Thus it wras held in Easley v. Pegg, 63 S. C. 98, 41 S. E. 18, that a municipal ordinance enacted under the general welfare clause of a municipal charter, prohibiting' the storing or keeping possession of spirituous, etc., liquors, except as provided by the state dispensary law, was valid, it not being necessary that such liquor should be kept for an unlawful purpose; the offense being complete if there is a storing or keeping of liquor, which is contraband under the dispensary law.
*41 “And in Wright v. Macon, 5 Ga. App. 750, 64 S. E. 807, where a municipal ordinance, declaring1 it unlawful for any club, corporation, or association of persons, or number of persons, whether incorporated or otherwise, to keep, or permit to be kept, in any room or place, or in any place connected directly or indirectly therewith, in which members of such club, corporation, association of persons, or number of persons, assembled, any alcoholic, spirituous, etc., liquors, under which it was sought to prosecute one who- kept liquor owned by him and intended for his own personal use, in a locker of a club connected with, lodgerooms of a fraternal society to which he belonged, was held void, solely on the ground that the state had already regulated and licensed such clubs, the court said that ‘hut for the passage of the license tax by the state, there could be no question in our minds that ... (such ordinance could have been adopted under the general welfare clause of its charter). It is evident that the general policy of the state in the passage of the general prohibition act of 1907 was to stop, or at least to decrease, the drinking of intoxicating liquor, and, the ordinance . . . now before us being in aid of that general policy, we think it could be extended to prevemting the assembling of liquors at a place where drinking, instead of being decreased, would he increased, although the possession and property right in such liquors was legal, and the place at which such liquors were assembled was not a public place; and, although it is always to be borne in'mind that delegated powers are to be strictly construed and reasonably exercised, we think the passage of the ordinance in question ... is not an unreasonable exercise of police power, and is fully warranted by the general welfare clause.’ ”
We do not think that this act deprives members of social organizations of the equal protection of the law. It seems to us that the classification of the organiza
Before leaving this subject, we venture to say that “social clubs,” by this statute, are selected as the special favorites rather than as the victims of the law. While primarily the statute was enacted in the interest of the public welfare and to effectuate the purpose of the legislature to make the sale of intoxicating liquors more • difficult, yet it is conceivable that the immediate and direct result of the enforcement of the statute will be of special benefit to social clubs.
Lastly, it is contended that the act in question is unconstitutional, because it contravenes section 71 of our Constitution. All questions of this kind are foreclosed by the decision in City of Jackson v. State, 102 Miss. 663, 59 So. 873. If the object of prohibition of the sale of intoxicating liquors is not to prevent, as far as may be, the drinking of such liquors, then it is difficult to justify the laws prohibiting the sale. Of course the typical public saloon is demoralizing, but there would be no practical difficulties in the way of so regulating the saloon as to minimize all of the evils which flow from the-saloon, except the evils which flow from the drinking of intoxicating beverages. If it is .not a menace to the health, morals, welfare, and peace of the public for men and women to drink alcholic liquors, it would seem that the public could have no interest in prohibiting the sale. The ultimate purpose
The judgment of the trial court sustaining the demurrer to the affidavit is reversed, and the cause remanded for trial on its merits.
Reversed and remanded.