Com. v. Campbell

• Decision Date: 24 March 1909
• Citation: 117 S.W. 383,133 Ky. 50
• Parties: COMMONWEALTH v. CAMPBELL
• Court: Kentucky Court of Appeals

117 S.W. 383

133 Ky. 50

COMMONWEALTH v. CAMPBELL

Court of Appeals of Kentucky.

March 24, 1909

Appeal from Circuit Court, Jessamine County.

"To be officially reported."

Peter Campbell was charged with violating an ordinance of the city of Nicholasville, and from a judgment of the circuit court dismissing the case, rendered on appeal from a judgment of conviction, the Commonwealth appeals. Affirmed.

Everett B. Hoover, Jas. Breathitt, Atty. Gen., and Tom B. McGregor for the Commonwealth.

John H Welch, for appellee.

BARKER J.

The appellee, Peter Campbell, was arraigned before the police court of Nicholasville (a city of the fourth class) under the following warrant: "Nicholasville Police Court. The Commonwealth of Kentucky, to the Chief of Police of Nicholasville, or to Any Sheriff, Coroner, Jailer, Marshal or Policeman in This State: You are commanded to arrest Pete Campbell and bring him before the Nicholasville police court to answer to the charge of said commonwealth (which sues for the use and benefit of the board of councilmen of the city of Nicholasville) of a breach of the ordinances of said city, to wit: Bringing into the town of Nicholasville spirituous vinous or malt liquors upon his person or as his personal baggage exceeding a quart in quantity, committed by him in said city on or before the 19th day of February, 1908. Given under my hand as judge of said court, this 19th day of February, 1908. John Traynor, J. N. P. C." He was tried and found guilty in the police court, and a fine of $100 assessed against him. Upon appeal to the Jessamine circuit court, the judgment of the police court was reversed, and the warrant dismissed. From this judgment the commonwealth has appealed.

The ordinance, by virtue of which the warrant was issued, is as follows:

"An ordinance to regulate the carrying, movin, delivering, transferring or distributing intoxicating liquors in the town of Nicholasville.

"Be it ordained by the board of councilmen of the town of Nicholasville:

"(1) It shall be unlawful for any person or persons, individuals or corporations, public or private carrier to bring into, transfer to any other person or persons, corporations, carrier or agent, or servant, deliver or distribute in the town of Nicholasville, Kentucky, any spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called; either in broken or unbroken packages, provided individuals may bring into said town, upon their person or as their personal baggage, and for their own private use, such liquors in quantity not exceeding one quart.

"(2) Each package of such spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called, whether broken or unbroken packages, brought into and transferred to other person or persons, corporations, carrier or agents, or servants, delivered or distributed in said town shall constitute a separate offense.

"(3) Any person or persons, individual or corporation, public or private carrier violating the provisions of this ordinance shall be fined not less than $50 nor more than $100 for each offense.

"(4) Provided the provisions of this ordinance do not apply to interstate commerce carriers when engaged in interstate commerce transportation.

"(5) This ordinance shall take effect and be in force from and after its passage and publication.

"Approved this 7th day of February, 1908.

"W. L. Steele, Mayor."

The following subsections of section 3490, Ky. St. (charter of cities of the fourth class), are referred to in the briefs of counsel as having a bearing upon the question in hand:

"The board of council shall have power *** within the city--

"(1) To pass ordinances not in conflict with the Constitution or laws of this state or of the United States, and to impose and collect license fees and taxes on stock used for breeding purposes, and on all franchises, trades, occupations and professions."

"(7) To prevent and remove nuisances at the cost of the owners or occupants, or of the parties upon whose ground they exist, and define and declare by ordinance what shall be a nuisance within the limits of the city, and to punish by fine any person for causing or permitting a nuisance."

"(27) The council shall have power, by ordinance, to license, permit, regulate or restrain the sale of all kinds of vinous, spirituous or malt liquors within the limits of the city, or to restrain or prohibit the sale thereof within one mile of the limits thereof, provided nothing herein shall be construed as granting the power or right to one town or city to license, permit, regulate, restrain or prohibit the sale of vinous, spirituous or malt liquors in any other town or city, and may fix the penalty or fine for violation of an ordinance under this section at any sum not exceeding one hundred dollars; provided, that no license to sell such liquors, to be drunk on the premises where sold, granted under this section, shall be for a less amount than two hundred and fifty dollars nor for a greater amount than one thousand dollars. For license to sell same by retail, for medical purposes, they may charge not less than fifty dollars nor more than five hundred dollars. For license to sell same by retail in quantities not less than a quart they may charge not less than one hundred dollars nor more than five hundred dollars. The board of council shall, at any time, have the power and authority to refuse to grant any license, and to suspend or revoke any license granted under or by virtue of the authority conferred by this section, when the board shall deem it necessary so to do in order to preserve the peace or good morals of said towns, and said board of council shall be the exclusive judges of the necessity."

"33. Said city council shall have legislative power to make by-laws and ordinances for the carrying into effect of all the powers herein granted for the government of the city, and to do all things properly belonging to the police of incorporated cities. Said board of council may change the boundary line of any ward or wards of any city now divided into wards, or hereafter divided into wards, under the provisions of this act, not less than sixty days previous to any November election."

It will be observed that the warrant issued against the defendant charges him with bringing into the town of Nicholasville spirituous, vinous, or malt liquors, upon his person or as his personal baggage, exceeding a quart in quantity. So far as the warrant is concerned therefore there is nothing to negative the idea but what the defendant had the liquor for his own use, and for no other purpose. We presume it will not be controverted that, if the council of Nicholasville could limit the quantity of liquor which a person might have in his possession for his own use to a quart, it could prohibit his having in his possession any quantity whatever. We are confronted therefore with the proposition as to whether or not, in this state, it is competent under the police power for any legislative body to prohibit the possession or use of liquor by one for his own necessity or comfort. Broadly stated, the question before us is whether or not it is competent for the Legislature to prohibit a citizen from having in his own possession spirituous liquor for his own use. It will not require any elucidation to show that, if the citizen may be prohibited from having liquor in his possession, he can be prohibited from drinking it, because, of necessity, no one can drink that which he has not in his possession. So that if it is competent for the legislative body of any given city or district, or even the Legislature of the state, to prohibit the citizen from having liquor in his own possession, then a new and more complete way has been discovered for the establishment of total prohibition, not only in any precinct, town, or county, but throughout the state, because, if it is competent to prohibit the citizen from having liquor in his possession, it necessarily follows that he can neither sell nor use it, as it is a physical impossibility to do either without first having had the possession of the interdicted liquor.

When the constitutional convention was in session, it was confronted with the question of how the use of spirituous liquor should be regulated. There were two forces brought strongly to bear upon the convention: First, there were the Prohibitionists, who desired to facilitate and advance in every way the means of banishing liquor from the state; and on the other hand, there were those who were engaged in the business of manufacturing and selling liquor, who strongly advocated the utmost freedom of the citizen with reference to its use. The convention gave patient and full hearing to both parties to this controversy, and, as a result, formulated a system by which the sale of vinous, spirituous, or malt liquors throughout the state was to be regulated by general laws. By subsection 27 of section 59 of the Constitution, it is provided that the General Assembly shall not pass local or special acts to provide a means of taking the sense of the people of any city, town, district, precinct, or county, whether they wish to authorize, regulate, or prohibit therein the sale of vinous, spirituous, or malt liquors or alter the liquor laws. And by section 61 it is provideed that the General Assembly shall, "by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the...