Pardee, J.
The general “local option” act of the legislature of the state of Georgia, approved September 18, 1885, as set forth in the agreed statement of facts on file, in so far as it discriminates in favor of domestic wines, and against the importation and sale of wines manufactured in other states and foreign countries, is in violation of the constitution of the United States. Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103 U. S. 344; Salzenstein v. Mavis, 91 Ill. 391; Vines v. State, 67 Ala. 73; McCreary v. State, 73 Ala. 481. The domestic wines mentioned in the eighth section of the act arc such wines as are made within the state, and probably from fruits grown therein. See Com. v. Giltinan, 64 Pa. St. 100; Laws Ga. 1887, p. 21. If it is considered that the sixth section of the act prohibits the sale of imported wines, and wines made in other states, under the head of intoxicating liquors, or other drinks which, if drank to excess, will produce intoxication, while the eighth section permits the salo of domestic wines, then the unconstitutional discrimination is apparent on the face of the act, and it can only be eliminated by striking from the act the exception in favor of domestic wines; or, by construction, inserting in the act an exception in favor of imported wines and wines from other states. The one means to strike out something the legislature did enact, and the other is to insert something that the legislature did not enact, in terms,-but is [56] the legal implication arising from" what the legislature did enact. In McCreary v. State, supra, the supreme court of Alabama, following the case of Powell v. State, 69 Ala. 10, and citing Tiernan v. Rinker, 102 U. S. 123, held, in a case strictly analogous to the present, that the illegal proviso or exception of the statute might be stricken out, and the remainder permitted to stand unaffected thereby, and thus affirmed a conviction for doing that which the legislature of Alabama enacted might he done. In Spraigue v Thompson, 6 Sup. Ct. Rep. 988, the supreme court of the United States, in reversing the supreme court of Georgia in the Pilotage Cases, 69 Ga. 409, says in regard to the principle of construction which disregards illegal exceptions, and leaves the rest of the law to stand as a separable part of the statute;
“The insuperable difficulty with the application of that principle of construction to the present instance is that, by rejecting the exceptions intended by the legislature of Georgia, the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted, in view of the illegality of the exceptions. ”
The Case of Tiernan v. Rinker, supra, passed upon a tax law of Texas requiring an annual tax to be paid upon the occupation of liquor selling generally, but exempting wines or beer manufactured in the state, and the supreme court held "that the statute was inoperative so far as it made a discrimination against wines and beer imported from other states; that the sale of these products must stand on the same footing as to tax as the wines and beer manufactured in the state, but that there was no objection to the tax as laid on the sellers of brandies and whiskies and other alcoholic drinks. It appears to be doubtful that the legislature of Georgia intended the said act to be separable and to stand as .the law-makers’ will, without the protection therein afforded to Georgia wines. See subsequent act, approved September 12, 1887, taxing dealers in domestic wines. Laws Ga. 1887, p. 21. And no one can authoritatively say that, without such protection to Georgia wines, the people would have given the majority vote necessary to put the act in force; nor can any one say that with a provision exempting all wines that the legislature would have enacted, or the people would have adopted, the act. In the case of Weil v. Calhoun, 25 Fed. Rep. 865, decided in this court in 1885, Judge McCay, in commenting on this same Georgia law, and the unconstitutional discrimination, said:
“It is possible, as I think, to separate this obnoxious clause—protecting domestic wines from the operation of the act—from the rest of it; declare it void, and let the broad prohibition clause have its full effect. I am not, however, as clear on this branch of the subject as I would like to be.”
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Pardee, J.
The general “local option” act of the legislature of the state of Georgia, approved September 18, 1885, as set forth in the agreed statement of facts on file, in so far as it discriminates in favor of domestic wines, and against the importation and sale of wines manufactured in other states and foreign countries, is in violation of the constitution of the United States. Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103 U. S. 344; Salzenstein v. Mavis, 91 Ill. 391; Vines v. State, 67 Ala. 73; McCreary v. State, 73 Ala. 481. The domestic wines mentioned in the eighth section of the act arc such wines as are made within the state, and probably from fruits grown therein. See Com. v. Giltinan, 64 Pa. St. 100; Laws Ga. 1887, p. 21. If it is considered that the sixth section of the act prohibits the sale of imported wines, and wines made in other states, under the head of intoxicating liquors, or other drinks which, if drank to excess, will produce intoxication, while the eighth section permits the salo of domestic wines, then the unconstitutional discrimination is apparent on the face of the act, and it can only be eliminated by striking from the act the exception in favor of domestic wines; or, by construction, inserting in the act an exception in favor of imported wines and wines from other states. The one means to strike out something the legislature did enact, and the other is to insert something that the legislature did not enact, in terms,-but is [56] the legal implication arising from" what the legislature did enact. In McCreary v. State, supra, the supreme court of Alabama, following the case of Powell v. State, 69 Ala. 10, and citing Tiernan v. Rinker, 102 U. S. 123, held, in a case strictly analogous to the present, that the illegal proviso or exception of the statute might be stricken out, and the remainder permitted to stand unaffected thereby, and thus affirmed a conviction for doing that which the legislature of Alabama enacted might he done. In Spraigue v Thompson, 6 Sup. Ct. Rep. 988, the supreme court of the United States, in reversing the supreme court of Georgia in the Pilotage Cases, 69 Ga. 409, says in regard to the principle of construction which disregards illegal exceptions, and leaves the rest of the law to stand as a separable part of the statute;
“The insuperable difficulty with the application of that principle of construction to the present instance is that, by rejecting the exceptions intended by the legislature of Georgia, the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted, in view of the illegality of the exceptions. ”
The Case of Tiernan v. Rinker, supra, passed upon a tax law of Texas requiring an annual tax to be paid upon the occupation of liquor selling generally, but exempting wines or beer manufactured in the state, and the supreme court held "that the statute was inoperative so far as it made a discrimination against wines and beer imported from other states; that the sale of these products must stand on the same footing as to tax as the wines and beer manufactured in the state, but that there was no objection to the tax as laid on the sellers of brandies and whiskies and other alcoholic drinks. It appears to be doubtful that the legislature of Georgia intended the said act to be separable and to stand as .the law-makers’ will, without the protection therein afforded to Georgia wines. See subsequent act, approved September 12, 1887, taxing dealers in domestic wines. Laws Ga. 1887, p. 21. And no one can authoritatively say that, without such protection to Georgia wines, the people would have given the majority vote necessary to put the act in force; nor can any one say that with a provision exempting all wines that the legislature would have enacted, or the people would have adopted, the act. In the case of Weil v. Calhoun, 25 Fed. Rep. 865, decided in this court in 1885, Judge McCay, in commenting on this same Georgia law, and the unconstitutional discrimination, said:
“It is possible, as I think, to separate this obnoxious clause—protecting domestic wines from the operation of the act—from the rest of it; declare it void, and let the broad prohibition clause have its full effect. I am not, however, as clear on this branch of the subject as I would like to be.”
The consideration of the foregoing cases, and the reason of this particular case, lead me to the conclusion that Tiernan v. Rinker, supra, is the proper guide to follow in construing this Georgia act, and that accordingly the said act is to be held inoperative so far as it discriminates against wines imported from other states; that the sale of these products must stand on the same footing as the domestic wines of Georgia; and [57] that there is no objection to the general prohibition of the sale of alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters or other drinks which, if drank in excess, will produce intoxication, other than wines imported or domestic. This strikes out no clause, no provision, of the statute, but merely gives the statute the construction that the legislators must have intended in view of their acquaintance with arid sworn intent to support the constitution of the United States. Under this construction of the statute, as the relator shows that he was not convicted for selling wines imported or otherwise, he presents no case for relief on the ground that he is in custody in violation of the constitution of the United States. Of course, if the Alabama view be taken, and the statute held to be valid when sufficiently purged by striking out the exception as not enacted, then the relator was properly convicted, and is entitled to no relief. And I think it is proper to say that my examination of the authorities leads me to the conclusion that the. same result as to relief in this case follows if, as claimed by relator’s counsel, the said act is not separable, so as to stand as a valid law with the illegal exception stricken out. As has been already stated, according to the agreed case, tho relator, Kinnebrew, was not prosecuted and convicted under or by reason of the unconstitutional proviso or exception in the said act, but under the part of the act that the legislature had the power—if it had the will—to enact. Whether that part can stand as a separable part of the statute does not depend upon the constitution or laws of the United States, but upon general principles of legislative construction; and if it be conceded that it cannot stand because the statute is an entirety, and not separable, then the case is very similar to In re Brosnahan, decided by Mr. Justice Miller on circuit, and reported in 18 Fed. Rep. 62. In that case Mr. Justice Miller, conceding that the claim that the oleomargarine law of Missouri “is an unwarranted invasion of public and private rights, an assumption of power without authority, in the nature of our institutions, and an interference with the natural rights of the citizen and of the public, which does not come within the province of legislation,” said:
“This objection to the statute is one which we cannot consider in this case. As already stated, when a writ of habeas corpus is issued by the circuit court in behalf of one in custody of a state officer under judicial proceedings in state courts, under state laws, the only inquiry we can make is whether he is held in violation of the constitution or of a law of congress, or a treaty of the United States. The act in question may be in conflict with the constitution of the state without violating the constitution or any law or treaty of tho United States. It may bo in excess of the powers which the people of Missouri have conferred on their legislative body, and therefore void, without infringing any principle found in the constitution, laws, or treaties of the United States.”
It is clear that the relator cannot be said to be in custody in violation of the third paragraph, section 8 of article 1 of the constitution of the United States, which relates to regulations of commerce with foreign nations, and among tho several states, and with the Indian tribes, since, as has been stated, he was not convicted under that part of the statute which discriminates against the importation and sale of other than do[58] mestic wines. Relator’s case would be a very different one if he had been indicted, tried, and convicted for importing and selling foreign wines, or the wines from other states, in the state of Georgia, or if that even had been his real offense, though not shown by the indictment.
Nor do I think it can be fairly said that the relator has been deprived of his liberty without due process of law in violation of the fourteenth amendment of the constitution of the United States. He has been indicted by a grand jury for an offense punishable by the letter of the acts on the statute-books; tried by a jury, with all the forms which from time immemorial have been held to be “due process of law;” his case has beén heard in the supreme court of his state, and been rejected at the supreme court of the United States as not involving any federal question, and should be considered as finally decided. See Cooley, Const. Lám. (1st Ed.) 355; Hurtado v. California, 110 U. S. 587, 4 Sup. Ct. Rep. 111, 292. It is probably true that-not every legislative enactment is “due process of law,” but where an alleged statute does not conflict with any provision of the federal constitution, and, if void at all, is only void because of the application of general principles of legislative construction, and where under such a statute a person is indicted by a grand jury and regularly tried, convicted, and sentenced, with full opportunity to make all his defenses, in a state court, which, of course, decides upon the validity of the statute under which it proceeds, 1 am of the opinion that he has had “due process of law,” and particularly that no case is thereby made to authorize a federal court to interfere and release the convict on the ground that he is in custodj^ in violation of the constitution of the United States. To interfere in such a case would be an assumption of appellate jurisdiction by the circuit courts in criminal cases in the state courts in which no distinctive, if any, federal question is involved.
The writ of habeas corpus in this case will be discharged, and the relator remanded to the custody of the sheriff of Fulton county, Ga., with costs.