Barbour v. State
| Decision Date | 10 April 1917 |
| Docket Number | 337. |
| Citation | 92 S.E. 70,146 Ga. 667 |
| Parties | BARBOUR v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Intoxicating liquors being subject to the police power of a state, even when such liquors are acquired legally they are taken with their inherent infirmities, and subject to such legislation as the state may enact under its police power. The legislation, as an incident to the main purpose, may impair the property value of the liquor or destroy it altogether when such incidental result is necessary to the main purpose and enforcement of the law. The act of the General Assembly (Acts [Ex. Sess.] 1915, p. 90) which forbids the possession of more than a specified amount of intoxicating liquor at one time applies alike to that which was acquired before and after May 1, 1916, and is not unconstitutional for any of the reasons assigned.
Grounds of a motion for a new trial not approved by the trial judge cannot be considered. The evidence warranted the verdict.
Error from City Court of Savannah; John Rourke, Jr., Judge.
Andrew D. Barbour was convicted in the city court of Savannah on a count charging him with having in his possession at one time more than one gallon of vinous liquor. His motions for a new trial and in arrest of judgment were overruled, and he brings error. Affirmed.
Andrew D. Barbour was convicted on an accusation charging him with a violation of the prohibition law. The accusation contained six counts. The defendant was found guilty on the fourth count. He filed a motion for a new trial, and a motion in arrest of judgment. Both motions were overruled, and he excepted. The fourth count charged him with having in his possession at one time more than one gallon of vinous liquor.
Robt. L. Colding, of Savannah, for plaintiff in error.
Walter C. Hartridge, Sol. Gen., of Savannah, for the State.
GILBERT J. (after stating the facts as above).
1. Among the provisions of the prohibition law enacted at the extraordinary session of the General Assembly in 1915 (Acts [Ex. Sess.] 1915, p. 90), which became effective on May 1 1916, was that which forbids any person to have in his possession at any one time more than one gallon of vinous liquors. It was for a violation of this provision of the law that the plaintiff in error was sentenced. He insists that he possessed the wine prior to May 1st; that, having acquired the wine when it was lawful to do so, and before his property rights were affected by the law, his possession was not a violation of the act; and that to consider the law as applying to liquor in possession before the law became effective would be to give to it a construction repugnant to the Constitution of Georgia (Civil Code, § 6358), and to the Fourteenth Amendment of the Constitution of the United States. That this contention is unsound we entertain no shadow of a doubt. Intoxicating liquors are peculiarly beyond all cavil, the subject of police power of the state, and their inherent evil qualities are so well recognized as to form an unquestioned basis for such exercise of power. We will therefore not consume space for the citation of authorities on this point. The exercise of this power by Legislatures, as well as the adjudications of the courts, has been progressive toward the complete outlawing of intoxicating liquors. The present nearly harmonious view of the question did not always prevail. There was a time when many things now forbidden by law, because harmful to the public morals, were permitted to flourish without let or hindrance. Lotteries, bucket shops, and numerous other activities, as well as barrooms, were considered legitimate. Few will now be found to defend any of these. The dangerous character of alcoholic liquors is universally recognized by the courts. The fact that it is an article fraught with such dangerous perils to the morals, good order, health, and safety of the people places it upon a different plane from that of other kinds of business. It is well settled that in legislating in behalf of the public morals, health, and safety, the state by reason of its police power may enact laws which incidentally impair property values (Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205), or destroy them altogether (Cureton v. State, 135 Ga. 660, 70 S.E. 332, 49 L.R.A. [ N. S.] 182; Southern Ex. Co. v. Whittle, 194 Ala. 406, 69 So. 652, L.
R. A. 1916C, 278; Glenn v. So. Ex. Co., 170 N.C. 286, 87 S.E. 136; Preston v. Drew, 33 Me. 558, 54 Am.Dec. 639; Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539; Silz v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75). It is true that the Constitution declares, "Protection to person and property is the paramount duty of government;" but it should be noted that protection to person comes first, and also that in the very first article of the Bill of Rights it is written, "All government * * * is instituted solely for the good of the whole."
The police power of the states touching the health, morals, property, peace, good order, and dignity of the people is essential to the existence and prosperity of the states; and this power has never been delegated to the federal government, nor restrained by the Constitution of the United States. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; United States v. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325.
The impairment of property value or destruction is not the primary object, but is permitted because it is a necessary incident to the main purpose. Intoxicating liquors being subject to the police power of the state, they are, even when lawfully acquired, taken with their inherent infirmities, and subject to such legislation as may thereafter be enacted within the police powers of the state. State v. Phillips, 109 Miss. 22, 67 So. 651, L.R.A 1915D, 530. As a means of preventing the use of liquor as a beverage the state has the power, it is universally admitted, to prohibit traffic in intoxicating liquors, and this power would be futile unless there was also full power to make it effective. Since the state has the power to prohibit the manufacture and sale, it also has the power, as an incident to the right, to restrain the means by which intoxicating liquors for personal use can be obtained. Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 320, 37 S.Ct. 180, 61 L.Ed. 326. It follows as an irresistible conclusion that likewise the state may...
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