Bloomfield v. State
| Decision Date | 27 June 1912 |
| Docket Number | 13343 |
| Parties | Bloomfield v. State Of Ohio. |
| Court | Ohio Supreme Court |
Act to regulate liquor traffic - (100 O. L., 89) - Dean character law - Not repugnant to state or federal constitutions.
The act of March 12, 1909, (100 O. L., 89), to amend and supplement section 5 of an act entitled: "An act providing against the evils resulting from the traffic in intoxicating liquors," is a valid exercise of legislative power not repugnant to the state or federal constitutions.
At the January term, 1911, plaintiff in error was indicted by the grand jury in the common pleas of Stark for falsely answering the fourth question enumerated in the act of March 12, 1909 known as the Dean character law, 100 Ohio Laws, 89. A demurrer was filed to the indictment on the ground that it did not state facts sufficient to constitute an offense. The demurrer was overruled, trial was had, and the defendant below found guilty as charged in the indictment. A motion in arrest of judgment was filed by the defendant for the reason that the facts stated in the indictment did not constitute an offense because the statute under which the indictment was laid was unconstitutional. This motion was overruled sentence pronounced and judgment entered. That judgment was affirmed by the circuit court, and this proceeding is brought to reverse the judgments below.
Messrs Craine & Snyder, for plaintiff in error.
We contend that this act of the legislature is null and void as being in conflict with: (1) Sec- tion 18 of the Schedule to the Constitution of Ohio; (2) As being in conflict with Sections 1 and 2 of Article I of the Constitution of Ohio; (3) As being in conflict with the Fourteenth Amendment to the Constitution of the United States.
This court in State v. Hipp, 38 Ohio St. 199, laid down the principle that a statute which required the doing of some act as a condition precedent was in effect a license. This case has never been reversed, but has on numerous occasions been cited with approval. It was approved in the syllabus of Butzman v. Whitbeck, 42 Ohio St. 223, and State v. Sinks, 42 Ohio St. 345. It has been commented upon with approval in State v. Frame, 39 Ohio St. 412; King v. Cappellar, 42 Ohio St. 218; Adler v. Whitbeck, 44 Ohio St. 559; Anderson v Brewster, 44 Ohio St. 576; Friend v. Levy, 76 Ohio St. 50. It is also in accord with Sherlock v. Stuart, 96 Mich. 193.
Our supreme court has repeatedly held that while Section 2 of Article I of the Ohio Constitution does not in express words prohibit discrimination between persons, yet the section should have such a construction, and that a discrimination between persons is prohibited by these sections of the Constitution. We cite in illustration of the above, the following: State v. Gardner, 58 Ohio St. 599; Coal Co. v. Rosser, 53 Ohio St. 12; State, ex rel., v. Ferris, 53 Ohio St. 314; Harmon v. State, 66 Ohio St. 249; Miller v. Crawford, 70 Ohio St. 207.
By Article XIV of the amendments to the Constitution of the United States, it will be noticed that there are two classes recognized, viz., citizens and persons.
The supreme court of the United States in Yick Wo v. Hopkins, 118 U.S. 356, held that the word "person" as used in this article meant everybody, whether a citizen of the United States or a subject of the emperor of China.
Now, does this article deny to any person within the jurisdiction of the state of Ohio, the equal protection of the laws?
An examination of the act in question shows that an alien or unnaturalized resident of the United States cannot engage in the sale of intoxicating liquors in the state of Ohio, irrespective of how the question propounded might be answered by him. There is no reason why this distinction should be made, and it is a perfectly arbitrary distinction and discrimination, and we think the statute in question, for that reason is in conflict with the said Fourteenth Amendment. We cite the following authorities, which we think support our contention: Ex parte Virginia, 100 U.S. 356; Barbier v. Connolly, 113 U.S. 31; Missouri Ry. Co. v. Mackey, 127 U.S. 210; Soon Hing v. Crowley, 113 U.S. 703; State v. Montgomery, 94 Me. 192; State v. Mitchell, 97 Me. 66.
Mr. A. J. Freiberg and Prosecuting Attorneys Charles Krichbaum and H. C. Pontius, for defendant in error.
The somewhat curious provision in our Constitution against license is chargeable largely to the feeling of the zealot that a certificate of license from the state is a "partnership with the devil;" that it is an affirmative character given by the state to sin. Other less fanatical, but none the less ardent temperance reformers believed that a license to a limited number of persons specifically granted would make the traffic respectable, a thing regarded as baneful.
The main object, however, was to destroy the saloon, perhaps eventually to insure complete prohibition. Adler v. Whitbeck, 44 Ohio St. 539; State v. Frame, 39 Ohio St. 422.
A license granted before 1851 was looked upon as a privilege not a restraint. 2 Constitutional Debates of 1873 (part 3), 3035.
How does a law like the Dean character law differ according to the modern idea from a license system?
The approval of the modern idea is based upon the very same foundation upon which the "nolicense" people of old based their objections. The idea is, by the process of personal selection on the part of the licensing authority, to give to the limited few, of high character, a franchise which will render the occupation immune from social attack. The holder of a license not merely by disobedience of positive law, but by obnoxious conduct of any sort easily renders his franchise subject to revocation. What is the result? The result is inevitable that the licensee will have every incentive to obey not only the law but the prevailing social morality--all the more so because he with a few others will have a complete monopoly. That is the purpose of a license law.
The Dean law under consideration produces no such result. Although it may have the effect of excluding from the business gamblers, felons and foreigners, it leaves the door open to thousands of others who are neither foreigners nor yet felons nor gamblers, to the untrammeled right to carry on the business. To be sure the Dean law approaches to a limited extent some of the purposes which a license law would insure. By keeping out gamblers, foreigners and felons, it limits the business, to some extent, to that part of the population from which undoubtedly a licensing board would or should choose its licensees. But that is true of any regulatory liquor law. If it is one purpose of a license law to prevent drunkenness on the premises (Section 12813, General Code), riotous conduct (Section 4261), vicious assemblages (Section 12806), gambling in saloons (Section 13057), selling to minors (Section 12961), or keeping a place where liquor is illegally sold (Section 13195), so it is the purpose of all the sections of the statutes herewith referred to, to prevent the same thing. And yet no one has ever contended that these punitive laws constitute the lawful traffic a licensed traffic. The Dean law, through the medium of a severe penalty, seeks to accomplish to some extent the same purpose, but it falls far short of being a positive and affirmative license law.
Counsel then cite and comment upon the following authorities; State v. Hipp, 38 Ohio St. 199; Butzman v. Whitbeck, 42 Ohio St. 223; State v. Sinks, 42 Ohio St. 345; Anderson v. Brewster, 44 Ohio St. 576; Rowland v. State, 80 Ohio St., 711; Hayner v. State, 83 Ohio St. 178; License Tax Cases, 5 Wall., 462; Yick Wo v. Hopkins, 118 U.S. 356; Slaughter-House Cases, 16 Wall., 36; Brannon on Fourteenth Amendment, 315; Bell's Gap Rd. Co. v. Pennsylvania, 134 U.S. 232; People, ex rel., v. Murray, 149 N.Y. 367; Commonwealth v. Hana, 195 Mass. 262; Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 602; Chirac v. Chirac, 2 Wheat., 259; State v. Travelers Ins. Co., 70 Conn. 590; Blair v. Kilpatrick, 40 Ind. 312; In re Watson, 92 N.Y.S. 197; Templar v. Barbers' Bd. of Examiners, 131 Mich. 258; 4 Ency. U. S. S.Ct. Rep., 358, 362, 363; Bachtel v. Wilson, 204 U.S. 36; Quong Wing v. Kirkendall, 223 U.S. 59; St. John v. New York, 201 N.Y. 633.
The law whose validity is challenged is now included in Sections 6083 and 13219, General Code.
In addition to the statement required by the statute providing for a tax on the business of trafficking in intoxicating liquors, it is now further provided that the person conducting the business shall answer certain questions.
1. Are you, or if a firm, is any member of your firm an alien or an unnaturalized resident of the United States?
2. Have you, or any member of your firm or any officer of your corporation, ever been convicted of a felony?
3. Have you, within the past twelve months, knowingly permitted gambling to be carried on in, upon or in connection with your place of business?
4. Have intoxicating liquors been sold at your place of business to minors, except on the written order of their parents, guardians or family physician, or to persons intoxicated or in the habit of getting intoxicated, within the past twelve months, with your knowledge?
5. Have you knowingly permitted improper females to visit your place of business within the past twelve months?
Section 13219 provides a penalty for false answers to those questions, and Section 13221 enacts that if the questions are answered in the affirmative and the person thereafter engages in the sale of such liquors he shall be fined, etc.
Plaintiff in error suggests three reasons why the law is invalid.
1. That it is in conflict with Section 18 of the Schedule of the Constitution of Ohio, because it is...
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