Fitch v. State

167 N.W. 417, 102 Neb. 361, 1918 Neb. LEXIS 66

• Court: Nebraska Supreme Court
• Decided: April 12, 1918
• Docket: No. 20135
• Status: Published

Opinions

Morrissey, C. J.

At the election held in November, 1916, the following constitutional amendment was adopted:

‘‘On and after May 1, 1917, the manufacture, the sale, the keeping for sale or barter, the sale or barter under any pretext of malt, spirituous, vinous or other intoxicating liquors, are forever prohibited in this state, except for medicinal, scientific, or mechanical, or sacramental purposes.”

The succeeding session of the legislature enacted chapter 187, Laws 1917, the purpose and scope of the act being to carry into effect the constitutional provision hereinbefore quoted. Section 11 of this act provides:

“It shall be unlawful for any person to have, possess or permit any intoxicating liquor to be in, upon or about any room, office, building or in any other place except in such person’s private dwelling house, and except when' and where and in the manner especially authorized as herein otherwise provided.”

This' statute became operative simultaneously with the quoted section of the Constitution.

May 3, 1917, there was filed in the proper court of Douglas county an information charging: “That Paul B. Fitch on or about the 2d day of May, A. D. 1917, in the county aforesaid and within the incorporate limits of the city of Omaha aforesaid, then and there being, did then and there unlawfully keep and maintain certain intoxicating liquors .in his possession, to wit, whiskey, at 624 North Sixteenth street, Omaha, not having a permit from the governor.” A jury being waived, and on trial had to the court, defendant demurred to the complaint, which demurrer was overruled. The court found the defendant guilty as charged, and imposed a penalty in the form of a fine in the sum of $100 and costs. Defendant’s motion for a new trial was overruled, and he has brought the case here for review.

The act under which the prosecution was brought being of far reaching importance, and this being- the first prosecution brought thereunder, the questions presented are of unusual interest.

The first assignment on which defendant relies has to do with the sufficiency of the information. It is argtied that the information is defective because it does not contain the words “room,” “office,” “building,” or “other place than such person’s private dwelling house.” The act permits under certain restrictions the keeping of intoxicating liquors at a private dwelling house, and the argument is based on the theory that the information ought to have negatived the exceptions contained in the act. Under the old common-law form of information there can be little question that the point would be well taken, but in the instant case we are dealing with a special statute, drafted for the purpose of carrying into effect the aims and purposes of the constitutional amendment. By section 46 of this statute it is provided:

‘ ‘ In any indictment, information, complaint or affidavit for any violation of this act, it shall not be necessary to describe the place where the offense was committed, except to allege that it was committed in the county where the prosecution was had, .unless the particular place where the violation occurred constitutes one of the specific ingredients of the offense, nor shall it be necessary to negative any of the exceptions contained in this act, nor shall it be necessary to state the day or the hour when the offense was committed unless the day or hour constitutes a special element or ingredient of the offense.”

This provision appears to have been incorporated in the act to make easier its enforcement. Its framers were probably aware of the necessity for making more simple the drafting of informations under a statute the enforcement of which would be left to a great extent to inexperienced village attorneys and police magistrates, and without intending to invade the defendant’s constitutional right “to demand the nature and cause of the accusation” (Const., art. I, sec. 11) provided for a less technical form of information than that which has come down to us through the ages. But defendant was deprived of no constitutional right, for the exceptions in the statute are reserved to him in his defense. State v. Bartow, 95 Wash. 480.

The chief assignment challenges the constitutionality of that part' of section 11 which reads: “It shall be unlawful for any person to have, possess or permit any intoxicating liquor to be in, upon or about any room, office, building or any other place except in such person’s. private dwelling house.” It is argued that this clause discriminates between him who owns and occupies a private dwelling house -and the less fortunate who “lives in a hotel, boarding house, rents a room, sleeps in a tent or ‘hangs his hat on another’s hoolc,’ ” and' denies to. the latter class the equal protection of the law; that it violates sections 1 and 3 of the Bill of Rights, and section 1, art. XIV of the amendments of the federal Constitution.

Prior to the time when this act became operative, defendant was a registered pharmacist, licensed to dispense intoxicating liquors, and the liquor which he is charged with unlawfully having in his possession was then lawfully held by him for the purpose of sale. When the statute under consideration became effective, defendant' ceased to sell or dispense this liquor, but kept it at his place of business under the belief that he might procure from the governor a permit authorizing him to sell the liquor for medicinal purposes. At the time the complaint was filed he had not sold or offered to sell any thereof, and still contends that it is within the province of the governor to issue a permit’ for its sale for the purpose stated.

Section 17 provides : • “Any registered pharmacist * * * may keep pure ethyl alcohol to-be used by him for scientific, mechanical and medicinal purposes only, and may sell and keep for sale alcohol so treated according to some formula permitted by the United States commissioner" of internal revenue so as to render it unfit to be used as a-beverage.”

The same section makes it the duty of such druggist or pharmacist to file a monthly report with the clerk of the county in which he does business “setting forth the amount, kind and value of all intoxicating liquors in their possession and all purchases made by them of intoxicating liquors during the month immediately preceding. ’ ’

Section 18 requires wholesale druggists selling “intoxicating .liquors” to make a monthly report to the governor. Section 19 provides; “Every wholesale druggist or registered pharmacist or manufacturer of alcohol before entering into the business of manufacturing, selling or keeping intoxicating liquors for the purposes herein provided, shall first secure. a permit therefor from the governor. * * * The governor, if satis.fied with the good faith and truthfulness of said application and affidavits, and that the applicant has not been guilty of any violations of this act, * * * shall, upon payment of an annual fee of two dollars by retail druggists, and ten dollars by wholesale druggists or manufacturers of alcohol, issue to such persons a permit to engage in the business of manufacturing or selling and keeping intoxicating liquors for medicinal, me'chanical, scientific or sacramental purposes at wholesale, or at retail, as the ease may be, under all the provisions and restrictions of this act.”

Because the legislature in dealing with these different classes of business used the term “intoxicating liquors,” defendant would have us construe the statute so as to authorize the governor to issue a permit for the sale, not alone of pure ethyl alcohol, and “alcohol treated according to some formula permitted by the United States commissioner of internal revenue so as to render it unfit to be used as a beverage,” and wine for sacramental purposes, but all other intoxicating liquors as well. ■

Section 12 provides; “It shall be unlawful for any, railroad company, express company, common carrier, or any other carrier or person, or any officer, agent, servant, or employee thereof, to deliver or permit, aid, or abet in delivering, or- carry for' the purpose of delivery, any intoxicating liquor, to any person, except pure ethyl alcohol to wholesale druggists, retail druggists, scientific institutions and hospitals and wine for. sacramental purposes to wholesale druggists, church goods houses and to authorized ' representatives of churches and religious societies as provided in this act.”

This language plainly shows that it was the intention of the legislature to prohibit the transportation of all intoxicating liquors except those mentioned in section 12. Since the right to transport is- denied, it would be incompatible to hold that a license to sell may be granted.

Section 15 provides terms under which wholesale druggists may sell wine for sacramental purposes to bona fide religious organizations or churches qualified to purchase the same, and pure ethyl alcohol and “alcohol treated according to some formula permitted by the United States -commissioner of internal revenue, so as to render it unfit to be used as a beverage,” but there is no provision anywhere in the act authorizing the sale of whiskey to any person under any condition, or authorizing its possession by any person except only, as it is permitted to be kept in a private dwelling house.

Keeping in mind the purpose of the constitutional prohibition against the liquor traffic, we may well assume that it was the intention of the legislature to absolutely prohibit the traffic in- whiskey, and to limit the traffic in intoxicating liquor' even for medicinal purposes to pure ethyl alcohol and “alcohol treated according to some formula permitted by the United States commissioner of internal revenue so as to render it unfit to be used as a beverage,” with suitable provision to enable church societies to procure, keep and use-wine for sacramental purposes. Where the words “intoxicating liquors” are used, they appear to be employed so as to include wine for sacramental purposes as well as pure ethyl alcohol and' “alcohol treated according to some formula permitted by the United States commissioner of internal revenue so as to render it uufit to be used as a beverage,” but it cannot be said that it was ever contemplated that whiskey might be sold under any pretense whatsoever.

It is further argued that the statute is beyond the legislative power and violates the Constitution; that the state may not legislate against the possession of intoxicating liquor where it is not shown that the liquor is kept for an unlawful purpose; that it is an unwarranted interference with property rights, and is not within the reasonable exercise of the police power. This contention is not without respectable authority to support it. Commonwealth v. Campbell, 133 Ky. 50, and note thereto in 24 L. R. A. n. s. 172; Commonwealth v. Smith, 163 Ky. 227, and note thereto in L. R. A. 1915D, 172.

But there is also respectable authority for a contrary holding.

“It may be said in a general way that the police power extends to all great public needs. Cornfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion, to be greatly and immediately necessary to the public welfare.” Noble State Bank v. Haskell, 219 U. S. 104.

“The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity, is a power originally and always belonging to the states, not surrendered by them to the general government nor directly restrained by the Constitution of the United states, and essentially exclusive. * * # In short, it is1 not to be doubted that the power to make the ordinary regulations of police remains with the individual states, and cannot be assumed by the national government, and that in this respect it is not interfered with by the fourteenth amendment.” Barbier v. Connolly, 113 U. S. 27. See also, In re Rahrer, 140 U. S. 545.

Intoxicating liquor is universally regarded as a proper subject of application of the police power. Its power to create evils prejudicial to the highest social order and the welfare of the community is now universally admitted, and the power of the state to prohibit its manufacture or sale is no longer open to question. The general purpose of all of our laws on the subject is to promote temperance and to prevent drunkenness, and this purpose has found expression in our organic law. A statute does not interfere .with or impair “.any one’s constitutional rights of liberty or property when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society. * * * Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations ns are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.” Mugler v. Kansas, 123 U. S. 623, 663.

The fourteenth amendment was not designed to interfere with'the power of the state, sometimes termed its police power to prescribe regulations calculated to promote the health, morals and good order of all the people. Barbier v. Connolly, 113 U. S. 27. “A state may absolutely prohibit the manufacture, gift, purchase, sale, or transportation of - intoxicating liquors, and may adopt such measures as are reasonably appropriate or needful to render the exercise of this power effective.” Crane v. Campbell, 245 U. S. 304.

Tbe state having adopted a constitutional amendment forbidding the traffic in-liquor, it was left to the legislature to devise a plan to successfully put that policy into operation. In forbidding the keeping of intoxicating liquors, at any other place than a private dwelling house, the lawmakers were not attempting to make class distinctions, and, inasmuch as no person is forbidden by the law to own or occupy a private dwelling house, it did .not do So. We have only to consider whether this limitation upon the possession of liquor, even when not held for an unlawful purpose, is a reasonable one. It is idle to forbid the traffic in intoxicants and yet fail to provide an adequate method of enforcing the prohibition. It is common knowledge that officers of the law find it difficult to enforce prohibitory measures. If parties.are free to keep quantities of .intoxicating liquor in rooms, offices and buildings other than private dwelling houses, the work of the police officers is that much more difficult:

“It is also well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered 'is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a. purpose within the admitted power of the government. # * * With the wisdom of the exercise of that judgment the court has no concern; and, unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot he said that the limit of legislative power has been transcended.” Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192.

It was proper for the legislature to recognize the difficulties which would' beset the administration of the new prohibitory law, and the enactment complained of is a proper and reasonable exercise of legislative power.

The judgment is

Affirmed.