Ex Parte Swann

• Citation: 96 Mo. 44,9 S.W. 10
• Parties: Ex parte SWANN.
• Decision Date: 18 June 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 10

96 Mo. 44

Ex parte SWANN.

Supreme Court of Missouri.

June 18, 1888.

1. INTOXICATING LIQUORS — LOCAL OPTION — CONSTITUTIONALITY — SPECIAL LAWS.

The local option act of Missouri, (Acts 1887, p. 179,) applying to all the counties in the state, and to all incorporated cities or towns having a population of 2,500 or more, is not in violation of Const. Mo. art. 4, § 53, providing that no local or special law shall be passed when a general law can be made applicable. Following State v. Pond, 6 S. W. Rep. 469.¹

2. SAME.

Such act, being general, does not violate the provision of Const. Mo. art. 4, § 53, that the general assembly shall not indirectly enact a special or local law by the partial repeal of a general law, though its effect, when adopted in any locality, is to suspend therein the operation of the "dram-shop law," which regulates the traffic in intoxicating liquors.

3. SAME — EQUAL PROTECTION OF LAW.

Such act, applying alike to all persons within the locality in which it is adopted, does not contravene Const. U. S. art. 14, § 1, prohibiting a state from denying to any person within its jurisdiction the equal protection of the law, though for violation of the dram-shop law, which remains in force in other localities, different penalties are imposed.

4. SAME — DELEGATION OF LEGISLATIVE POWER.

A local option act providing that any county, town, or city of a certain class may, by a majority vote, put such county, town, or city under the operation of the act, does not delegate to them legislative power. Following State v. Pond, 6 S. W. Rep. 469.

5. SAME — EXCESSIVE FINE.

The penalty for violation of the Missouri local option act of April 5, 1887, being therein fixed at a fine of not less than $300 nor more than $1,000, or by imprisonment in the county jail not less than 6 nor more than 12 months, or by both fine and imprisonment, punishment by fine of $300 and imprisonment for 365 days is not excessive, or cruel and unusual, within the prohibition of Const. Mo. art. 2, § 25.

6. SAME — CONSTRUCTION OF ACT.

Under the provision of the Missouri local option act of April 5, 1887, § 8, that nothing in the act shall be so construed as to prevent the sale of wine for sacramental purposes, nor to prevent pharmacists from furnishing pure alcohol for medical, art, scientific, and mechanical purposes, the act in no way interferes with the druggists and pharmacists' law, as amended by the act of March 28, 1883.

SHERWOOD, J., dissenting.

Original proceedings in habeas corpus.

Gage, Graves & Aull, for petitioner. B G. Boone, Atty. Gen., and Champ Clark, for the State.

BLACK, J.

The act of April 5, 1887, entitled "An act to provide for the prevention of the evils of intemperance by local option," etc., was adopted by a majority vote, as the law of all that part of Pike county outside of the city of Louisiana, a city of more than 2,500 inhabitants. Public notice of the result of the election was duly given. Thereafter the petitioner, Flem Swann, was, by a justice of the peace, found guilty of selling intoxicating liquors in violation of the law. The justice assessed the punishment at a fine of $300 and 365 days' imprisonment in the county jail, and until said fine and costs were paid. The petitioner seeks to be discharged from imprisonment under the commitment by the writ of habeas corpus. The questions presented arise upon a demurrer to the return made to the writ by the keeper of the jail.

Some of the questions sought to be made under the general grounds of the demurrer were determined in the recent case of State v. Pond, 93 Mo. 606, 6 S W Rep 469. Besides holding that the act was not a delegation of legislative power, it was there held that the act was not in conflict with that portion of section 53, art. 4, of the constitution, which provides: "In all other cases where a general law can be made applicable, no local or special law shall be enacted." We adhere to what is there said in respect of both of these questions. It is now said the act violates that clause of the same section and article of the constitution, which declares: "Nor shall the general assembly indirectly enact such special or local law by the partial repeal of a general law," because it operates as a suspension or repeal of the dram-shop law, and the druggists and pharmacists' law, both of which are general laws of the state. The dram-shop law, as amended by the act of 1883, in its general scope, regulates the traffic in intoxicating liquors. When the act in question is adopted by a majority vote, it becomes unlawful to sell or harbor in any manner any kind of intoxicating liquors. The one law regulates the sale; the other prohibits it altogether; and it is also provided by the seventh section of the...