CLARK, C. J., and HOKE, J., dissenting.
By chapter 24, Laws, 1907, the Legislature enacted a statute declaring that it shall be unlawful for any person to "manufacture, sell, or otherwise dispose of for gain" spirituous, vinous, or malt liquors in the county of Burke. The act contains the usual exceptions in regard to sales by druggists. It is also provided that neither the manufacture of domestic wines "nor the sale of such wines at the place of manufacture in quantities not less than one gallon" is prohibited. The place of delivery of any liquors brought into the county is declared to be deemed the place of sale. Common carriers are prohibited from bringing liquors into the county, etc. The statute is amended by chapter 806, Laws 1907, by adding at the end of section 1 the following: "It shall be further unlawful for any person, except to a druggist, for medical purposes, as aforesaid, to bring into said county of Burke, in any one day, more than one-half gallon of such spirituous, vinous, or malt liquors, and every person so offending shall, upon conviction, be fined or imprisoned, in the discretion of the court." The motion to quash the bill of indictment involves the proposition that chapter (621) 806 is an unwarranted interference with defendant's property and with his liberty; that it is violative of the Constitution, which declares that "Among the inalienable rights of all men are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness," of which they cannot be deprived but "by the law of the land." That the Constitution is "the law of the land," in the sense that no act of either department of the Government which violates its provisions or exceeds its powers can be enforced to deprive the citizen of his life, liberty, or property, is a fundamental truth. To deny it is to assert that constitutional government is a failure, and liberty, regulated by law, has no abiding place in our political system. The Constitution is, of necessity, as well as the declared will of the people, the supreme law, and in no proper, legal sense can any act of either department of the Government which violates its provisions or exceeds the powers delegated be the law. To state the same proposition affirmatively, an act of the Legislature which finds no support in the Constitution or is not an exercise of the power conferred therein, imposes no duty, deprives the citizen of no right, and subjects him to no penalty. This is a "first principle," the recognition of which is essential to the preservation of liberty.
"If the Constitution prescribes one rule, and the law another and a different rule, it is the duty of the courts to declare that the Constitution, and not the law, governs the case before them for judgment."Curtis, J., Scott v. Sanford, 19 How., 628.
"An unconstitutional law is void and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous,
but is illegal and void, and cannot be a legal cause of imprisonment."Bradley, J., Ex parte Siebold, 100 U.S. 376.
"The limitations imposed by our constitutional law upon the action of the Governments, both State and National, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions." Matthews,, (622)J., Hurtado v. California, 110 U.S. 356.
"An unconstitutional act is not a law; it binds no one and protects no one." Filed, J., Huntington v. Worthen, 120 U.S. 101.
"No court is bound to enforce, nor is any one legally bound to obey, an act of Congress inconsistent with the Constitution. In this country the will of the people as expressed in the fundamental law must be the will of the courts and legislatures." Harlan, J., Robertson v. Baldwin,165 U.S. 297.
"Whatever the people, framing their organic act, have declared to be the limits of legislative power, and the modes in which that power shall be exercised, must always be recognized by the courts, State and National, as obligatory." Brewer, J., Stearns. v. Minnesota, 179 U.S. 241.
It is the right of the citizen, when called to the bar of the court, to appeal to the Constitution and demand that the court declare whether the statute which he is charged with violating be "the law of the land." To make this right of any value or protection to the citizen, it must be the duty of the court to declare its judgment thereon. To deny this is to keep the promise to the ear and break it to the hope — to make of none effect the declaration that ours is a government of law and not of men.
"It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violation of the principles of the Constitution." Harlan J., Downes v. Bidwell, 182 U.S. 382.
Judge Iredell, in Calder v. Bull, 3 U.S. 399 (1798), referring to the omnipotence of the British Parliament and its unrestricted power, from which they had suffered so much, and against which they waged successful war, said: "In order, therefore, to guard against so great an evil, it has been the policy of the American States, which (623) have individually framed their State Constitutions since the Revolution, and of the people of the United States when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress or of the Legislature of the State violates those constitutional provisions, it is unquestionably void."
"It is axiomatic that the judicial department of the Government is charged with the solemn duty of enforcing the Constitution, and, therefore, in cases properly presented, of determining whether a given manifestation of authority has exceeded the Constitution as against any legislation conflicting therewith, and it has become now an accepted fact in the judicial life of this Nation."
The people, in the evercise [exercise] of their political sovereignty, established the Government, delegated to it certain enumerated powers, assigned to it appropriate functions, established departments and assigned to them appropriate powers and duties, imposed such limitations as experience had taught to be necessary for the preservation of liberty, and, to the end that the Government should not, by construction, implication, or otherwise, deprive them of unenumerated but "inalienable rights," declared: "This enumeration of rights shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people." Art. I, sec. 37. This Court, in Bayard v. Singleton, 3 N.C. 42
(1787), after most careful consideration "and with great deliberation and firmness," unanimously declared that no act which the Legislature could pass could by any means repeal or alter the Constitution. However much we may desire to sustain the acts of the Legislature as a coordinate department of the Government, we may not, without being recreant to the duty imposed upon us and the rights of the citizen, refuse to decide firmly and fearlessly (624) the issues which he makes with the Government. In the discharge of the duty and the exercise of the power to pass upon the validity of the statute, we are admonished by the uniform decisions of the courts that we should "approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in our judgment, beyond reasonable doubt." Shaw, C. J., inWellington, Petitioner, 16 Pick., 95; Cooley Const. Lim., 182. Another great judge has said: "It is but a decent respect due to the wisdom, integrity, and patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt." Washington, J., Ogdenv. Saunders, 12 Wheat., 270.
"Necessarily, the power to declare a law unconstitutional is always exercised with reluctance; but the duty to do so in a proper case cannot be declined, and must be discharged in accordance with the deliberate judgment of the tribunal in which the validity of the enactment is directly drawn in question." Fuller, C. J., Pollock v. Farmers L. and T. Co., 157 U.S. 554.
"It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case." Waite, C. J., Sinking Fund Cases,99 U.S. 718.
The same principle has been announced and uniformly followed by this Court. Before, however, discussing the principal question, we deem it proper to call attention to the vague and uncertain terms in which the bill of indictment is drawn.
The defendant is charged with bringing into the county of Burke, "on one certain day, more than one-half gallon, to wit, one gallon of spirituous, vinous, or malt liquors." The names of two witnesses are marked on the bill. Under this indictment it is held, by frequent (625) rulings of this Court, that the defendant may be convicted, upon the testimony of witnesses other than those marked on the bill, of bringing into the county, on any day within two years prior to 10 July, 1907 (except for the fact in this case that the act was not passed until 8 March, 1907), of more than one-half gallon of either wine, whiskey, brandy, beer or other liquor. While de do not hold that the bill is fatally defective, we think that it barely corresponds to the letter or spirit of the constitutional provision that "in all criminal prosecutions every man has the right to be informed of the accusation against him." The courts have wisely given a liberal interpretation to statutes relaxing the rigid rules regarding the particularity required in the bill of indictment which formerly prevailed. It would seem that the grand jury could have made its presentment more specific by saying which of the prohibited kinds of liquors the defendant brought into the county. It is hardly probable that he brought all of them in "on one certain day." The disjunctive "or" would indicate that the grand jury could not ascertain from the witnesses which of them he "brought in." Indictments against citizens subjecting them to imprisonment in default of bail awaiting trial, annoyance, mortification, and expense, be they never so innocent, are serious matters. It is a vain thing to preserve in our Constitution guarantees of personal liberty, such as that general warrants shall not issue, persons shall not be put to answer any criminal charge except upon indictment by a grand jury, etc., if the substance of them may be explained away by legal fictions and expedients based upon real or imaginary necessity. We would not put unnecessary restrictions upon the Government in the prosecution of crime, but substantial rights are not to be sacrificed. It would be very easy to make the several allegations in separate counts in the bill, thus enabling the grand jury to ascertain from the witnesses the very truth of the charge which "upon their oaths" they make against the citizen. (626)
Under our statutes, all manner of counts, which are but separate bills, may be included and a "dragnet" thrown out to insure the conviction of guilty men.
Coming to the discussion of the question presented by the motion to quash the bill of indictment — i. e., whether the carrying into the county of Burke, without any unlawful purpose, more than one-half gallon of wine, brandy, etc., is reasonably related to its sale — certain questions may be regarded as settled.
The Legislature, in the exercise of the police power, may, by appropriate enactments, regulate and, if they deem it conducive to the public health, morals, peace, or safety, entirely prohibit the manufacture and sale of intoxicating liquors. For the purpose of making effective such legislation, they may make it criminal for any person to have such liquors in his possession, within the territory wherein the sale or gift is prohibited, with intent to sell or give away. They may prescribe or change the rules of evidence by making such possession prima facie evidence of a guilty intent. This Court has uniformly sustained legislation of this character. Paul v. Washington, 134 N.C. 363; S. v. Barrett, 138 N.C. 630;S. v. Patterson, 134 N.C. 612.
In S. v. Dowdy, 145 N.C. 432, we held that a certified copy of the record kept by the collector of internal revenue was competent, not only as evidence, but sufficient to sustain a conviction for selling liquor in violation of the statute.
We have endeavored to give full force and effect to the legislation enacted in this State for the suppression of the liquor traffic, resolving, as was our duty, every reasonable doubt regarding its validity in favor of the enactment. This legislation finds its support in the police power vested in the State Government. It is exercised primarily by the Legislature, which may adopt any measure within the extent of the power appropriate and needful for the protection of the public morals, (627) the public health, or the public safety. Mugler v. Kansas, 123 U.S. 623.
That there is a limit to the police power which the courts must, when called upon in a judicial proceeding, ascertain and declare, is as well settled as the existence of the power itself. In Mugler v. Kansas, supra, wherein the question underwent a most thorough investigation, Mr. JusticeHarlan says: "It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police power of the State. There are, of necessity, limits, beyond which legislation cannot rightfully go. . . . . If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to these objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts so to adjudge, and thereby give effect to the Constitution." S. v. Redmon (Wis.), 114 N.E., Rep., 137. Recognizing the difficulty of fixing any definite limitation upon the police power, the courts have refrained from doing more in cases which have arisen than inquiring whether "the real purpose of the statute under consideration has a reasonable connection with the public health, welfare, or safety." People v. Havnor, 149 N.Y. 195; 52 Am. St., 707, cited in People v. Lochner, 171 N.Y. 145; 101 Am. St., 973. The result of the decisions has been well stated in 22 A. E. Enc., 938: "In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil, or the preservation of the public health, safety, morals, or general welfare, and that there is some clear, real, and substantial; connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do, in some plain, appreciable, and appropriate manner, tend towards the accomplishment of the object for which the power is exercised." In S. v. Moore, 113 N.C. 697, Shepherd, C. J., says: While (628) it is for the Legislature to determine what regulations are needed to protect the public health and secure public comfort and safety (and its measures calculated and intended to accomplish these ends are generally within its discretion and not the subject of judicial review), it is, nevertheless, true that this extensive authority must be exercised in subordination to those great principles of fundamental law which are designed for the protection of the liberty and the property of the citizen." S. v. Moore 104 N.C. 714.
In the entire range of legislation in the exercise of the police power, no subject has received more consideration or found more varied forms of expression than the efforts to prevent the manufacture and sale of intoxicating liquor. Beginning with the Maine liquor law, the statutes and codes of every State in the Union abound with every conceivable variety of legislation having for its object the regulation, restriction, or prohibition of the liquor traffic. The courts, both State and Federal, have been called on to construe, interpret, and pass upon the validity of many of these statutes. They have, with remarkable uniformity, sustained them, and, when of doubtful meaning, given them such interpretation as would suppress the evil and advance the remedy. An unusually careful and diligent examination by the Assistant Attorney-General and ourselves fails to discover any statute, either in terms or scope, similar to the one under discussion. While the legislatures have resorted to many expedients to control, regulate, restrict, and prohibit the manufacture and sale, either in entire States or counties, towns,
cities, or districts, we do not anywhere find any suggestion that the possession of intoxicating liquor without any unlawful purpose, or carrying it into the territory wherein its sale is prohibited, with no unlawful purpose, is made indictable. While by no means decisive of the power to do so, the fact that no such attempt has been made is worthy of (629) note in seeking the basis of the asserted power. It will be well to note the unusual, if not unprecedented, terms of the statute — what it prohibits and the penalties imposed for its violation. Any person who shall bring into the county of Burke in any one day more than one-half gallon of spirituous, vinous, or malt liquor, except for the purpose of delivery to a druggist for medical purposes, is guilty of a misdemeanor. Unless we may read into the statute an exception to save it from interfering with religious liberty guaranteed by the Constitution, a minister, steward, deacon, or elder of any church bringing into the county more than the prohibited quantity of wine violates this law. A man who brings into the county more than one-half gallon of wine for domestic purpose, or of spirits, for his own use or for that of his family, for medical or for any other purposes, is guilty. If he would escape the penalty, he may bring it in to a druggist for medical purposes, but not otherwise. No possible intent, purpose, or occasion can avail as a defense. A person passing through the county on the cars or in a private conveyance, having in his trunk or baggage more than the prohibited quantity, without stopping on his journey or having the slightest intent to sell or give it away, is guilty. Upon conviction, he may be fined or imprisoned in the discretion of the court. No limits has ever been fixed by this Court to the amount of the fine which may be imposed. We have lately sustained as not excessive a sentence of two years in the county jail and hard labor on the public roads for violating the liquor law. S. v. Dowdy, supra. Surely, when we recall that, upon an indictment so vague in its terms, upon a trial in which the defendant may be convicted upon testimony of witnesses whose names he has never heard and whom he has never seen until confronted by them, and no definite time is required to be fixed in the bill, the citizen may be convicted for conduct, which, but for this statute, has neither legal nor moral guilt, may be fined in the discretion of the court or imprisoned and, in felon's garb, in company with felons, worked upon the public roads for two (630) years — the courts should carefully examine the basis upon which the power to thus restrict the liberty of the citizen rests. If the statute is within the police power, it is not within our province to question its wisdom. It is ours to declare and enforce the law of the land — the Constitution — the law which the people, in the exercise off their sovereignty, have made for their protection and our guide. It is no answer to the contention that the law will be administered with justice
and merely — that only those who are guilty will be convicted and punished. Experience taught those who founded this State, established government, and secured its limitations by written constitutions, that the liberty of freemen could not be safely instructed to the unrestricted sense of justice and mercy of any man or set of men. The test of the constitutionality of a statute is what it empowers those in authority to do.
If the quantity of intoxicating liquor which any person, for any purpose, has in his possession, except those named in the act, is a public nuisance in Burke County, it is unquestionably within the power of the Legislature to make it criminal to carry it there. No person has any legal right to create or maintain a public nuisance. This is elementary. Can it be said that the act of carrying the prohibited article into the county is, or that when carried there it becomes, per se a public nuisance? This suggestion was made in support of certain provisions of the Maine statute.Shepley, C. J., said: "There is nothing which can be regarded as a nuisance when considered by itself alone and separate from its use. It is the improper use or employment of a thing which causes it to be a nuisance. It would be not a little absurd to declare that to be a nuisance, and as such liable to be abated and destroyed, which the act allows to be sold and purchased as an article useful for medicinal and mechanical purposes." Merrimon, J., in S. v. Yopp,97 N.C. 477, says: "The exercise of the police power does not extend to the destruction of property under the form of regulating (631) the use of it, unless in cases where the property, or the use of it, constitutes a nuisance. In such cases, if the owner of the property suffers injury, it is such as happens in the unlawful use of it, or because the property itself, in its nature or application, is unlawful." S. v.Tenant, 110 N.C. 610. Does spirituous, vinous, or malt liquor cease to be property when its manufacture and sale are prohibited? Shepley, C. J., inPreston v. Drew, 33 Maine, 558 (54 Am. Dec., 639), says: "It is, however, insisted on the argument that a person, by the common law, can no more acquire property in spirituous and intoxicating liquors than he can in obscene publications and prints. There is a clear and marked distinction between them. Such liquors may be applied to useful purposes. This is admitted in the act by its authorizing their sale for medicinal or mechanical purposes. It is their abuse or misuse alone which occasions the mischief. Obscene publications and prints are in their very nature corrupting and productive only of evil. They are incapable of any use which is not corrupting and injurious to the moral sense." In Lincoln v. Smith,27 Vt. 328, in a well considered opinion, it was held that the Legislature had the power to prohibit the traffic in intoxicating liquor and subject it to seizure, forfeiture, and destruction when kept for thatpurpose. Bennett, J., says:
"The act does not declare that they (the liquors) are not property, and there is no language which should receive a construction to forbid their being property. Though there is a prohibition to sell them, yet that cannot prevent a man from having a property in them for his own use, without any intention to sell them, and they may be transported through the State when there is no intention to violate the law." In Austin v. Tennessee,179 U.S. 343, it is said: "Whatever produce has from time immemorial been recognized by custom or law as a fit subject for barter or sale, particularly if its manufacture has been made the subject of Federal regulation and taxation, must, we think, be (632) recognized as a legitimate article of commerce, although it may to a certain extent be within the police power of the State." SoTaney, C. J., in the License Cases, 5 How. 504, says: "But spirits and distilled liquor are universally admitteded [admitted] to the subjects of ownership and property."
If, then, the spirits, wine, or beer, as the case may be, which the defendant had on 10 July, 1907, was his property, he was, by virtue of the constitutional guarantee that he shall enjoy the fruits of his own labor and pursue his own happiness, entitled to carry it with him whithersoever he went, and apply it to his own use such manner as he saw fit, unless prohibited by some law enacted in accordance with and in the exercise of the power conferred upon the Legislature. The Legislature had the power to prohibit him from selling this property in the county of Burke. This it has done. It had the further power to prohibit him from having it in his possession for carrying it into the county with intent to sell, and to make the possession prima facie evidence of the unlawful intent. S. v. Barrett,supra. It has not undertaken to prohibit him from using it for himself or from keeping it for domestic purposes in his family. It has not undertaken to prohibit him from giving it away in the county. The language of chapter 24, Laws 1907, is "to sell manufacture, or otherwise dispose of for gain."
Conceding the power of the Legislature to prohibit any person from using or drinking wine, spirits, or beer as a beverage, or to have it in his possession or carry it into the county for that purpose, the prohibition imposed by the statute is not so limited. Except to deliver to a druggist for medical purposes, or to certain State and health institutions named, the carrying it into the county for any purpose is made a misdemeanor. Assuming that the wine or spirits described in the bill of indictment was the defendant's property, the fruits of his labor, he was entitled to carry it with him whithersoever he went, unless in doing so be (633) injuriously affected the public morals, health, or safety, or his doing so was so reasonably related to the sale of intoxicating liquor, which is the thing prohibited in Burke County, as to come within the
police power. It is no answer to his contention to say that, if spirits, he would probably drink it, or, if wine, permit his family to use it for domestic purposes, because the law does not prohibit him from doing either.
Viewed from any possible point of view, the sole question is, what, if any, relation has the act of carrying into the county of Burke, in any one day, more than one-half gallon of vinous, spirituous, or malt liquors, in said county, to the sale of such liquor? In view of the numerous uses to which that quantity of such liquor may be put, other than selling, and of the improbability of any reasonable person carrying into the county the prohibited quantity for sale, can it be insisted that any such real or substantial relation to the sale exists?
The only case in which a statute at all similar to the one before us has been before the Court is S. v. Gillman, 33 W. Va. 146 (6 L.R.A., 847). The defendant was indicted for violating a statute making it a misdemeanor "to keep in his possession for another" spirituous liquor. Upon a motion to quash the bill of indictment, the Court said: "The keeping of liquor in his possession by a person, whether for himself or another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public, and, therefore, the statute prohibiting such keeping in possession is not a legitimate exercise of the police power. It is an abridgment of the privileges and immunities of the citizen, without any legal justification, and, therefore, void. . . . It is simply an attempt to make the possession of liquor, for any purpose, a crime. A very different question would be presented if the act had made it unlawful for any person to keep intoxicating liquors in his possession, either for himself or for another, for the purpose of selling it."
It is unquestionably true that the Legislature may make the (634) mere possession of burglars' tools, counterfeiting outfits, gaming tables, etc., obscene pictures or prints, and probably other articles incapable of any lawful use, indictable. They are essentially injurious to the public welfare — incapable of any use consistent with the public welfare. Many articles, such as decaying animals or things emitting noisome, poisonous vapors or odors, may be summarily destroyed. They are neither not the subject of property rights or are public nuisances. We find no statute or decision of any court treating vinous, spirituous, or malt liquors within this classification. In Washington v. Ah-Lim, 9 L.R.A., 395, it is held by a divided Court that a statute prohibiting the use of opium, by smoking and inhaling the fumes thereof through an "opinion pipe" is a valid exercise of the police power. Two of the five judges dissented. In Ex parte Mon Luck, 29 Or. 421, a statute
prohibiting any person from having in his possession or offering for sale opium and other enumerated drugs made from opinion, who has not obtained a license from certain officers, was held valid. Bean, C. J., said: "Opium is an active poison and has no legitimate use except for medicinal purposes; but it is frequently used to produce a kind of intoxication by smoking or eating," etc. Noticing the case of S. v. Gillman, supra, he says: "But the principle of that case has no application here. It is a matter of common knowledge that intoxicating liquors are produced principally for beverages, and so common has been their manufacture that they are regarded by some courts as legitimate articles of property, the possession of which neither produces nor threatens any harm to the public. But the use of opinion for any purpose, other than as permitted in this act, has no place in the common experience or habits of the people of this country," etc.
It is unnecessary to further discuss these cases. The distinction, as pointed out by the courts making them, is obvious.
We do not hold that common carriers may not be forbidden to transport liquor into prohibition territory. That question is not before (635) us. Nor do we undertake to express any opinion regarding the effect of the Fourteenth Amendment upon the power of the States to deal with the manufacture or sale liquor, or the power of Congress to legislate upon the question of interstate transportation. Nor do we express any opinion in regard to the right of the State to prohibit liquor bought in nonprohibition territory with intent and for the purpose of bringing into prohibition territory in such quantities as are reasonably related to or indicate a purpose to sell. We decide nothing except the question raised upon the record. Chapter 806, Laws 1907, prohibiting any person from carrying into the county of Burke in any one day more than one-half gallon of vinous, spirituous, or malt liquor, is not a valid exercise of the police power, for that it unduly restricts the right of the citizen to the use of his property, without any intent to violate any prohibited act in relation to it; that the carrying into the county of Burke of the prohibited quantity has no reasonable, substantial relation to the sale of liquors, as prohibited by law. It may be well to repeat that we have expressly held valid the "anti-jug" law, which makes the place of delivery the place of sale, thus effectually prohibiting the sale off liquor in one place in the State for the purpose of delivering in another place. S. v. Patterson, supra.
It it [is] suggested that the defendant might, by way of defense, show that he had no unlawful intent, or that he carried in into the county for a lawful purpose. That would be to write language into the statute which is not there, and do violence to the intention of the Legislature. If its terms were doubtful and open to interpretation, it would be our
duty to so interpret it as to make it correspond to the Constitution, because we would presume that the Legislature intended to comply with the Constitution. We have retained this appeal from the last term and given to the question our most careful and anxious consideration. We are constrained, both by reason and authority, to conclude that in quashing the indictment there was (636)
No error.