Austin v. State
| Decision Date | 31 March 1847 |
| Parties | AUSTIN v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS CRIMINAL COURT.
LESLIE, for Appellant.
STRINGFELLOW, Attorney-General, for The State.
This was an indictment for selling spiritous liquors, in quantities less than one quart, without license. The indictment charged that the defendant, at, &c., did unlawfully carry on the trade and business of a dramshop-keeper, and that he did then and there unlawfully sell intoxicating liquors in a quantity less then a quart, without having any license therefor. contrary, &c. The defendant appeared, and pleaded, 1st, that he had never resided in the State of Missouri for the space of two years before the finding of the indictment; 2nd, that he was a natural-born citizen of the United States, and had never resided in this State for two years before the finding of this indictment; 3rd, that he is a natural-born citizen, &c., and never resided in this State, &c., and that he made application to the County Court of the county of St. Louis for a license to carry on the business of a dramshop-keeper, and had complied with all the requirements of the law in such case made but that the said court refused to grant him said license; 4th, that he was duly and legally licensed to keep the dramshop in the said indictment mentioned, by the city of St. Louis, by virtue of a certain ordinance recited in the plea. The circuit attorney filed a demurrer to these pleas, which the Criminal Court sustained. The defendant was found guilty and fined. the defendant moved in arrest of judgment, because of the deficiency of the indictment. This motion was overruled.
The first two pleas, we understand, are designed to call in question the constitutionality of an act passed by our Legislature, in 1843 (see Rev. Code of 1845, app. p. 1099), restricting the County Court of St. Louis county, in granting dramshop licenses, to persons who have resided for two years in the State and three months in the county. We do not see very clearly how these pleas would furnish any defense to the indictment if it were conceded that this law was unconstitutional, unless we further admit that the business of dram selling is an occupation which the Legislature either have no power to prohibit or have failed to place under any legal and constitutional restrictions. Passing by these questions, however, for the present, we have no hesitation in acknowledging our inability to see any conflict between the act of the Legislature alluded to and the Constitution of the United States. The second section of the fourth article is the cause relied on as conflicting with the statute. That section declares, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. This provision was taken from the old articles of confederation and seems to have encountered no opposition or discussion in the Convention where it was framed, or in those to whose deliberations the Constitution was subsequently submitted. Nor has it given occasion to any of those judicial interpretations which so many other clauses in the same instrument, affecting the rights of the States or the power of the Federal government, have from time to time elicited. In Abbott v. Bayley, 6 Pick. 89, Chief-Justice Parker incidentally alludes to this clause of the Constitution, and seems to think it very manifest that it is to be understood in a qualified sense. It was merely designed to declare that the citizens of the different States should not be aliens to each other, but that they might take and hold real estate without the necessity of becoming naturalized, and eventually enjoy the full rights of citizenship, by complying with the laws of the State to which they may transfer their residence. It was not intended to prevent the States from requiring such length of residence for the enjoyment of political or municipal rights as they might deem conducive to their welfare.
The whole history of State legislation shows that the interpretation of this clause in the Federal Constitution, which has been contended for at the bar, does not embrace the sense in which it has been generally understood. There is scarcely a State, we apprehend, which has not thought proper to require some length of residence as requisite to the exercise of political and municipal rights by emigrants from the sister States. It is true, that in point of practice, few of the States have thought it advisable to place any restrictions upon the learned professions or upon any class of industrial pursuits. But it is equally true, that the State Legislatures have the power, unless there be something in their own Constitutions to prohibit it, of entirely abolishing or placing under restrictions any trade or profession which they may think expedient. Can there be any doubt that the Legislature of Missouri might declare the practice of law or medicine an unlawful calling, if they thought fit so to do; or that the professors of these sciences should have certain qualifications, of age, length of residence, moral character, &c., which in their wisdom might seem proper? Of course we will not be understood as extending these remarks beyond the particular clause of the Federal Constitution of which we are now speaking. There may be other clauses in that instrument--and there certainly are provisions in all our State Constitutions, which will not permit legislative bodies wantonly to interfere with or destroy many of the natural or conventional rights of the citizens. Of this class, are those provisions which secure the freedom of the press and of speech, and the freedom of debate. But we are not aware that there is any provision in our Constitution which would prevent the Legislature from prohibiting dram selling entirely; nor have the Legislature been prevented from placing such restrictions upon this business as they may think fit. They have exercised this power, not of prohibiting, but of restricting it. They have virtually declared that selling spiritous liquors in quantities less than one quart is illegal, and subjects the seller to heavy penalties, unless he has taken the steps required by the law. To sell drams without a license, is not a privilege which either our citizens or strangers can enjoy in this State. The Legislature...
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...this prerogative for the legislative department. To deny it is to depart from well-settled principles. Since the decision in Austin v. State, 10 Mo. 591, it has been the established law of this state that the right to sell spirituous or intoxicating liquors is not a natural right, but is a ......
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