Com. v. Smith

• Citation: 163 Ky. 227,173 S.W. 340
• Parties: COMMONWEALTH v. SMITH.
• Decision Date: 26 February 1915
• Court: Court of Appeals of Kentucky

173 S.W. 340

163 Ky. 227

COMMONWEALTH v. SMITH.

Court of Appeals of Kentucky.

February 26, 1915

Appeal from Circuit Court, Warren County.

Harry Smith was prosecuted for an offense. After a judgment discharging him, the Commonwealth appeals. Affirmed.

G Duncan Milliken, of Bowling Green, James Garnett, Atty. Gen and Chas. H. Morris, Asst. Atty. Gen., for the Commonwealth.

T. W. &amp R. C. P. Thomas, of Bowling Green, for appellee.

CLAY C.

At the 1914 session the General Assembly passed an act entitled "An act prohibiting the shipment of liquors for sale in local option territory and prohibiting persons from having in possession for sale liquors in such territory." Acts 1914, c. 7, p. 25. The act was approved March 9, 1914.

Section 1 makes the payment by any person in prohibited territory of the United States internal revenue tax permitting the sale of intoxicating liquors, an intent to violate the prohibitory law, and makes it unlawful for any such person to buy, bargain for, accept, receive, hold, or possess intoxicating liquors.

Section 2 makes it unlawful for any person to consign, ship, or transport intoxicating liquors to any person in prohibited territory, or for any person residing in such territory to receive such liquors, unless the packages containing the same shall be marked and labeled in a certain manner.

Section 3 requires railroad, express, or other transportation companies doing business in the state to keep certain records of the transportation and delivery of all intoxicating liquors in prohibited territory.

Section 4 is as follows:

"In any county, district, precinct, town or city in this state where the sale of any of the liquors mentioned in section 1 is prohibited, it shall be unlawful for any person to keep, store or possess any such liquors in any room, building or structure other than the private residence of such person, and which is not used as a place of public resort: Provided, that none of the provisions of this section shall apply to druggists authorized to sell such liquors, nor to persons possessing such liquors for medicinal mechanical, chemical, scientific or sacramental purposes, nor apply to such liquors in the process of transportation or in the possession of a common carrier, nor any wholesale dealer in, or brewer, or distiller engaged in the manufacture of such liquors in said prohibition territory."

Section 5 provides that all liquors consigned, shipped, transported in any manner, received, held, or possessed contrary to the provisions of this act shall be deemed contraband.

Section 6 defines the word "person" as used in the act.

Section 7 prescribes certain penalties for violation of the act.

Section 8 repeals all acts inconsistent with the provisions of the act.

Defendant Harry Smith, was charged with a violation of section 4 of the act, and was fined by the county court. On appeal to the circuit court, section 4 of the act was held unconstitutional, and the defendant discharged. The commonwealth appeals.

The facts on which the prosecution is based are admitted, and are in brief as follows:

Between the 1st and 9th days of June, 1914, Harry Smith and three of his friends arranged to go camping. They made up a fund to purchase beer for the trip. The beer was ordered from the City Bottling Works of New Albany, Ind., with directions to consign it to defendant. The beer arrived on June 11, 1914. The expenses incident to the purchase and transportation of the beer were paid by Smith and his three friends. When the beer was received, it was carried to a room in the rear of the office of a local physician, and in the latter's control, and placed there with his consent. The fishing trip was abandoned, and the parties proceeded to drink, and invite some of their friends to drink, the beer. The last few remaining bottles were drunk on June 16th, after the act above set out went into effect. No part of the beer was taken from the room where it was placed. No person became intoxicated from drinking any of the beer, and no person other than Smith and his three friends contributed any portion of the expense incurred in purchasing the beer or in its preparation for use.

It will be observed that section 4 of the act in question makes it unlawful for any person to keep, store, or possess intoxicating liquors in any room, building, or structure other than the private residence of such person, which is not used as a place of public resort, in prohibited territory. In view of the evident purpose of the Legislature, as expressed in the title to the act, it is insisted that the words "for sale" should be interpolated in section 4, and the act construed so as to prohibit the possession for sale of intoxicating liquors in any room, building, or structure other than the private residence of the person possessing them. It is also argued that where an act is susceptible of two constructions, one of which will render the statute unconstitutional and the other constitutional, that construction which sustains the constitutionality of the act should be adopted. It must be remembered, however, that we already have in force a statute making the possession of intoxicating liquors for the purpose of sale in local option territory unlawful. In view of this fact, and of the further fact that, if the words "for sale" are interpolated in section 4, the necessary effect of that section will be to give persons the right to keep intoxicating liquors at their private residences for the purpose of sale in prohibited territory, we conclude that the section in question is not susceptible of such a construction, but that the Legislature intended to make the possession of intoxicating liquors in prohibited territory at any other place than the private residence of the person possessing the same unlawful, irrespective of any purpose or intention to sell the same.

In view of this conclusion, it is necessary to determine whether or not under our Constitution the Legislature has this power. For the commonwealth it is insisted that the act is aimed at the bootlegger, who generally hides or secretes intoxicating liquors at places other than his own residence, and in order to prevent sales by the bootlegger it is within the police power of the Legislature to make unlawful the possession in prohibited territory of intoxicating liquors at places other than the private residence of the person owning the same. On the other hand, it is insisted for the defendant that under our Constitution the police power of the General Assembly is somewhat restricted, and that the broad power of prohibiting or limiting the place of possession does not exist, unless the possession is for an unlawful purpose. A question very similar to the one here involved was before this court in the case of Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383, 24 L.R.A. (N. S.) 172, 19 Ann.Cas. 159. There the city of Nicholasville, where local option prevailed, enacted an ordinance making it unlawful for any person to deliver or distribute in the town of Nicholasville any intoxicating liquors; provided, however, that any person might bring into the town on his person and as his personal baggage and for his own use such liquors in quantities not exceeding one quart. The ordinance was held unconstitutional, on the ground that the police power did not extend to the deprivation of a citizen of his right to have intoxicating liquors in his possession for his own use, and on the further ground that our Constitution deprives the Legislature of the power of forbidding citizens to have such liquors in...