Cureton v. State

• Decision Date: 14 February 1911
• Citation: 70 S.E. 332,135 Ga. 660
• Parties: CURETON v. STATE.
• Court: Georgia Supreme Court

70 S.E. 332

135 Ga. 660

CURETON v. STATE.

Supreme Court of Georgia

February 14, 1911

Syllabus by the Court.

The act approved August 6, 1907 (Acts 1907, p. 81), commonly known as the "prohibition law," is not violative of article 1, § 1, par. 3, of the Constitution of this state, which provides that no person shall be deprived of life, liberty or property, except by due process of law, on the ground that it prohibits the manufacture of alcohol for any and every purpose, including its use for medicinal, scientific, and mechanical purposes and its use in the arts, as well as other uses than as a beverage.

(a) Nor does the act offend this constitutional provision because of its applicability to a person who owned and operated a distillery at the time of its passage.

Nor is such act violative of the fourteenth amendment of the Constitution of the United States, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

The act mentioned above does not violate article 1, § 1, par. 2, of the Constitution of this state, which declares that protection of person and property is the paramount duty of government, and shall be impartial and complete.

(Additional Syllabus by Editorial Staff.)

Alcohol is judicially recognized as a spirituous and intoxicating liquor.

Prosecution of George W. Cureton for violation of the prohibition law. Questions certified to the Supreme Court. Questions answered.

W. W Cureton, J. P. Jacoway, W. U. Jacoway, Geo. D. Lancaster Maddox, McCamy & Shumate, and Spears & Lynch, for plaintiff in error.

T. C. Milner, Sol. Gen., and Geo. W Stevens, for the State.

LUMPKIN, J. (after stating the facts as above).

If anything can be established by repeated adjudications, it is that the regulation or prohibition of the sale of spirituous and intoxicating liquors is a matter which falls peculiarly within the police power of the state. In Henderson v. Heyward, 109 Ga. 373, 376, 34 S.E. 590, 591 (47 L.R.A. 366, 77 Am.St.Rep. 384) Mr. Justice Cobb said: "That the state has a right to prohibit absolutely the sale of whisky is no longer an open question, either in this court or in the Supreme Court of the United States." See Whitley v. State, 134 Ga. 758, 773, 774, 68 S.E. 716, and citations. Alcohol is judicially recognized in this state as a spirituous and intoxicating liquor. Snider v. State, 81 Ga. 753, 7 S.E. 631, 12 Am.St.Rep. 350; Loid v. State, 104 Ga. 726, 30 S.E. 949. Indeed, alcohol is the intoxicating element of liquors generally. Were it not for the effects of alcohol, there would probably be no laws prohibiting the manufacture or sale of liquors. Under the police power, not only the sale, but the manufacture, of spirituous and intoxicating liquors may be prohibited. The wisdom and expediency of so doing is a question for the Legislature, not for the courts. In Foster v. Kansas, 112 U.S. 201, 5 S.Ct. 8, 97, 28 L.Ed. 629, it was held that "a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to the Constitution of the United States." In Mugler v. Kansas, 123 U.S. 673, 8 S.Ct. 273, 31 L.Ed. 205, a statute of Kansas which prohibited in that state both the manufacture and sale of spirituous, malt, vinous, fermented, or other intoxicating liquors, to be used as a beverage, was held not to violate the fourteenth amendment of the Constitution of the United States. See, also, 2 Story on Constitutional Law (5th Ed.) § 1954; Black on Intoxicating Liquors, § 37; Woollen & Thornton on Intoxicating Liquors, § 93, and citations.

It was argued that because, under the act of 1907, the sale of alcohol for certain specified purposes and under certain restrictions was not unlawful, therefore to prohibit the manufacture of that which may have a lawful use or sale was violative of the section of the state Constitution which provides that no person shall be deprived of life, liberty or property except by due process of law, and likewise of the fourteenth amendment of the Constitution of the United States; in other words, that, because there may be some lawful use of a thing, the Legislature cannot prohibit its manufacture. A somewhat similar argument was advanced in the Mugler Case, supra, where it was contended that "no convention or Legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others." But Mr. Justice Harlan said (123 U.S. 662, 8 S.Ct. 297, 31 L.Ed. 205): "If, therefore, a state deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medicinal, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. *** And so, if, in the judgment of the Legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their view as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the Constitution and...