Stepp v. State

32 So. 2d 447, 202 Miss. 725, 1947 Miss. LEXIS 335

• Court: Mississippi Supreme Court
• Decided: November 10, 1947
• Docket: No. 36583.
• Status: Published

Opinions

Appellant was convicted under Section 2613, Code 1942, of having intoxicating liquor in his possession, and he appeals, assigning as the sole ground therefor that the cited section is unconstitutional because in contravention of Section 32 of the Constitution of 1890, which ordains that "The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people."

We will assume that appellant had the liquor in his possession solely for his own personal use and consumption. Appellant says that at the time of the adoption of the Constitution of 1890, any person had the right so to possess intoxicating liquor, and that having that right at that time it cannot be taken away by subsequent legislation, the right being then an inherent right and thus reserved under Section 32.

It is a mistake to suppose that a constitution is to be interpreted only in the light of things as they existed at the time of its adoption. On the contrary, a constitution is intended to endure for a long time, and is interpreted in the light of developments which have appeared at the time of the interpretation, and may therefore include things and conditions which not only did not exist but were not contemplated when it was drafted, so long as the new developments are in their nature within the scope of the purposes and powers for the furtherance of which the constitution was established.

An apt illustration of the foregoing is found in Moore v. General Motors Acceptance Corp., 155 Miss. 818, 823, 125 So. 411, 413: "The power of Congress in respect to the Post Office Department and all its multitudinous activities is expressed and granted in this one short clause: `To establish post-offices and post-roads.' . . . Although not mentioned in words, the power . . . to carry the mails on steamboats upon the lakes and rivers of the country was likewise never seriously questioned; yet technically it is not within the term `post roads,' nor was the steamboat a method of transportation known or dreamed of when the Federal Constitution was ordained, and likewise today there is the new system of transportation of mails by airplanes which use no post roads."

In addition to the cited case, see Dunn v. Love, 172 Miss. 342, 354, 155 So. 331, 92 A.L.R. 1323; Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 768, 133 So. 195; and 11 Am. Jur., Const. Law, Sections 4 and 51; 16 C.J.S., Constitutional Law, Sec. 14.

Appellant relies further upon cases such as State v. Williams,146 N.C. 618, 61 S.E. 61, 17 L.R.A. (N.S.) 299, 14 Ann. Cas. 562, and Commonwealth v. Campbell, 117 S.W. 383, 24 L.R.A. (N.S.) 172,133 Ky. 50, 19 Ann. Cas. 159, and on those cited in the note to the latter report on page 168 thereof, wherein it is said by the annotator that "it has been held generally that the mere possession of intoxicating liquor, kept for one's own use, is not inherently injurious to the health, morals or safety of the public; and, therefore, that legislation prohibiting such keeping in possession is not a legitimate exercise of police power, but, on the contrary, is an abridgment of the privileges and immunities of the citizen without any legal justification and as such is void," citing the several cases.

With due respect to the decisions so noted, it is our duty here to proceed to a consideration of our own experiences as more recent developments have thrust themselves upon the problem. It is not questioned that the State has the power through its Legislature to prohibit and make punishable the sale, or the giving away, of intoxicating liquor. Statutes to that effect have existed in this State in one form or another for fifty years or more, and have been upheld time after time. But until the enactment of Section 1974, Code 1930, Section 2613, Code 1942, there had been no statute which would make it unlawful to have intoxicating liquors in possession, regardless of the quantity or the purpose of the possession.

In addition to the consideration that possession affords a prime facility towards the furtherance of sales, there was the further consideration that what had happened before the enactment of Section 1974, Code 1930, was that when prosecutions were being presented for violations of the law against sales, the defendants would assert that they did not have the liquor in their possession for the purpose of sale or to give away, but for their own personal use and consumption, and thus the statutes against sales were rendered difficult to enforce. It was in aid of the effectiveness of the statutes against sales and the giving away of intoxicating liquor that Section 1974, Code 1930, was enacted, and that it was within the authority of the Legislature so to enact has been adjudicated, in principle, in Purity Extract Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316, 317, wherein it was held that the sale of a beverage which contained no intoxicating contents whatever could be prohibited if the prohibition had a reasonable relation to the prevention of evasions of the liquor laws. Quoting from other cases, the Court said: "In enacting a police regulation it may be found necessary to include within the purview of the statute certain acts innocent and not in themselves the subject of police regulation, where the inclusion of such acts is necessary in the opinion of the Legislature to make the police regulation effective." And the Court concluded that while the police power of the State undoubtedly has its limitations, these limitations are not reached when the law is only made broad enough to make its prohibitory laws effective, and to prevent subterfuges and evasions.

As stated, the statute against possession was enacted in aid of, and to make more effective, the laws against sales and giving away, and unless we could say that manifestly the possession statute had no reasonable relation to that purpose, we would be without legitimate authority to strike it down, and we cannot so say.

Affirmed.