Com. v. Wells

• Decision Date: 27 October 1922
• Citation: 244 S.W. 675,196 Ky. 262
• Parties: COMMONWEALTH v. WELLS.
• Court: Kentucky Court of Appeals

244 S.W. 675

196 Ky. 262

COMMONWEALTH v. WELLS.

Court of Appeals of Kentucky.

October 27, 1922

Appeal from Circuit Court, Shelby County.

Tom Wells was charged with unlawfully giving away intoxicating liquors. A demurrer to the indictment was sustained, and the Commonwealth appeals. Reversed and remanded.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and H. B. Kinsolving, Jr., and C. G. Barrickman, both of Shelbyville, for the Commonwealth.

Charles H. Sanford, of Shelbyville, for appellee.

MOORMAN J.

Appellant Tom Wells, was indicted in the Shelby circuit court for unlawfully giving to Lason Roberts, in January, 1922 one-fourth of a pint of intoxicating liquor, not for medicinal, mechanical, scientific, or sacramental purposes. The lower court sustained a demurrer to the indictment, and the commonwealth, complaining of that decision, has appealed to this court.

The indictment was returned under an act of March 23, 1920 (chapter 81, Acts of 1920), section 1 of which reads:

"That it shall be unlawful to manufacture, sell, barter, give away, or keep for sale, or transport, spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the commonwealth of Kentucky."

The grounds on which the trial court sustained the demurrer are not shown in the record, and we have not been favored by a brief for the accused, but it is said by counsel for the commonwealth that the basis of the ruling was that the indictment did not charge a public offense, or, in other words, that it is not unlawful for a person to give away intoxicating liquor. This ground of demurrer raises two questions: First, does the charge in the indictment come within the inhibition of the statute; and, second, if it does, is it competent for the state to prohibit one of its citizens from giving intoxicating liquor, in any quantity, to another, not for medicinal, mechanical, scientific, or sacramental purposes, or not under the conditions set out in section 8 of the act?

The first question, of course, depends on the language of the act, which not only prohibits the selling, bartering, keeping for sale and transporting of spirituous, vinous, malt or intoxicating liquors, except for certain purposes therein mentioned, but also prohibits the giving away of such liquors. The inhibition against the giving of liquor is as direct and clear as it is against the selling, bartering, or doing of any of the other things denounced, and unless the act charged to Wells is excepted from the general provisions of the law, an offense within the terms of the statute has been committed. The only allowable exceptions to the language of the act quoted are contained in section 1 referred to, and section 8, which latter section provides that--

"Nothing in this act shall be construed so as to make it unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquors need not be reported, provided such liquors are for the use only for the personal consumption of the owner thereof and his family residing in such dwelling, and for his bona fide guests when entertained by him therein."

But it is further provided that in any action concerning such liquor, the burden of proof shall be on the possessor to prove that it was lawfully acquired, possessed, and used. Neither of these exceptions is applicable to the charge in the indictment, the averments of which are clearly within the inhibition of the statute, and show that an offense was committed if it is competent for the Legislature to make the gift of liquor, under such circumstances as are shown here, an offense. And this brings us to the second question stated.

In connection with that question, the effective scope of the Seventh Amendment to the Constitution of Kentucky (see Ky. St. § 226a), ratified in 1919, as it affects the power of the state to legislate on the subject of intoxicating liquors, is to be considered; and, as pertinent to the subject, it must be determined whether the amendment not only prohibits the manufacture, sale, or transportation of intoxicating liquors for beverage purposes, but also restricts the power of the Legislature, in dealing with the subject, to the enactment of such laws only as enforce the constitutional provision, and, in consequence, renders the Legislature powerless to enact any law prohibiting the giving away of liquor. The amendment prohibits the manufacture, sale, or transportation of spirituous, vinous, malt, or other intoxicating liquors, except for sacramental, medicinal, scientific, or mechanical purposes, in the commonwealth of Kentucky; and it expressly repeals and nullifies all other parts of the Constitution inconsistent with its terms. It will be noted that the inhibitions of the provision relate specifically to the manufacture, sale, and transportation of liquor, but it will also be observed that there are no restrictions on the power of the Legislature, or the methods to be used by it in effectuating the purposes of the provision. Indeed, the Legislature is enjoined to enforce the provision by "appropriate legislation," and this injunction clearly implies the right to exercise a reasonable discretion in legislating on the subject.

Even if it be assumed that the power of the Legislature to deal with this subject is derived solely from the amendment, we could not adopt the view that an inhibition against the giving away of liquor is not within the power conferred, since the constitutional mandate, under every fair rule of construction, must be deemed to carry with it the power of enacting measures that in their nature are an aid to the accomplishment of the objects sought to be attained by the amendment; and, consequently, in the exercise of that power, the Legislature, as an aid to the enforcement of the amendment, could prohibit the giving away of liquor.

But aside from the authority conferred by the amendment, it is well settled that the state, independent of any constitutional authority on the subject, has the inherent power to legislate on any subject affecting the morals of its citizens, and it has been held with...