Ex Parte Handler

• Decision Date: 30 June 1903
• Citation: 176 Mo. 383,75 S.W. 920
• Parties: Ex parte HANDLER.
• Court: Missouri Supreme Court

75 S.W. 920

176 Mo. 383

Ex parte HANDLER.

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

INTOXICATING LIQUORS — LOCAL OPTION LAW — CONSTITUTIONALITY.

1. The local option law (Rev. St. 1899, p. 765, art. 3, c. 22) is not in violation of the constitutional provision that all laws of a general nature shall have uniform operation throughout the state, on the ground that a penalty is thereby imposed, for selling and giving away intoxicating liquors, different from that inflicted for the illegal sale or giving away of such liquors in portions of the state where the law is not in operation.

2. The local option law (Rev. St. 1899, p. 765, art. 3, c. 22), authorizing cities having a population of 2,500 inhabitants to prohibit the

sale of intoxicating liquors therein, is not in contravention of Const. art. 9, § 7, in that it makes a new class of cities of the fourth class, to wit, those having a population of 2,500 inhabitants.

Application for writ of habeas corpus by Bone Handler, alias Joel Smith, to secure applicant's release from custody. Application denied.

L. D. Ramsey, T. M. Bailey, and Porter & Groves, for petitioner. Edward C. Crow, Atty. Gen., and L. J. Miles, for respondent.

GANTT, J.

The petitioner is confined in the jail of Atchison county for failure to pay a fine of $300 assessed by a jury in the circuit court of Atchison county, Mo., in the cause of the State of Missouri against said Bone Handler, for a violation of the local option law of this state by unlawfully and willfully selling and giving away intoxicating liquors in said county of Atchison on the 28th day of May, 1902, after the act of the General Assembly of this state approved April 5, 1887, and known as the "Local Option Law," had been adopted by said county and was in force.

From the judgment and sentence in that case the defendant therein, the petitioner herein, took his appeal to this court, and the same is now lodged in the clerk's office of this court; nevertheless he seeks to be discharged by virtue of a writ of habeas corpus, on the ground that the act of the General Assembly approved April 5, 1887, and now known as article 3 of chapter 22, page 765, of the Revised Statutes of 1899 of this state, is unconstitutional.

1. The constitutionality of this law was assailed in State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469 (1887), and after the most exhaustive argument, in which every proposition now advanced by petitioner and his counsel, save two, was considered and weighed by the court, it was held constitutional in an opinion by Chief Justice Norton, Judge Sherwood alone dissenting. That decision was rendered 16 years ago. The next year after that decision was promulgated, the law was again attacked in Ex parte Swann, 96 Mo. 44, 9 S. W. 10 (1888), and its constitutionality reaffirmed after reargument. Those decisions were followed and accepted as settling the validity of this law in State v. Mitchell, 104 Mo. 121, 16 S. W. 118, 24 Am. St. Rep. 324. In State v. Dillard Moore, 107 Mo. 78, 16 S. W. 937 (1891), this court was asked to overrule State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469, but the Supreme Court in Banc said: "No reason has been suggested, and none can be seen by us, for receding from the conclusion reached in the cases of State ex rel. Maggard v. Pond, 93 Mo. 617, 6 S. W. 469, and Ex parte. Swann, 96 Mo. 44, 9 S. W. 10. These cases were considered with great care, and the conclusion reached therein meets with our continued approval, and we reaffirm the constitutionality of said law." In State v. Searcy, 111 Mo. 236, 20 S. W. 186 (1892), the question being again mooted, the constitutionality of the law was reaffirmed. In State v. Watts, 111 Mo. 554, 20 S. W. 237, this Division again unanimously expressed its satisfaction with the decisions in State ex rel. Maggard v. Pond and Ex parte Swann, supra. In State v. Wingfield, 115 Mo. 428, 22 S. W. 363, 37 Am. St. Rep. 406 (1893), the constitutionality of the act was once more brought in question, but Judge Burgess, while believing the law unconstitutional, expressly deferred to the previous adjudications sustaining it, and Judge Sherwood, who had dissented up to that time, concurred in the opinion. Afterwards, in City of Warrensburgh v. McHugh, 122 Mo. 649, 27 S. W. 523, the constitutionality of this law was again raised, and, because of that contention alone, this court had jurisdiction to hear and determine the appeal therein. Judge Sherwood wrote the opinion, and, in answer to the insistence that the local option law was unconstitutional, said, "We will not enter in any discussion of the constitutionality of the local option law," and thereby sustained its constitutionality, because it is perfectly obvious that, if it was unconstitutional, the ordinance of the city imposing the fine, from which the appeal in that case was taken, was clearly invalid, and the judgment must have been reversed, whereas it was affirmed with the concurrence of every member of this Division.

Thus this law, on eight distinct occasions, has been solemnly adjudged by this court to be a valid and constitutional enactment. It is true that afterwards, in State v. Buchardt, 144 Mo. 83, 46 S. W. 150, an appeal from a conviction in a petit larceny case, Judge Sherwood, arguendo, referred to the decision in State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469, and said it was incorrectly decided and would not be followed, but in that statement the writer did not concur, as in his opinion, then and now, the correctness of the Maggard-Pond decision was not involved in the Buchardt Case. A reading of the last-mentioned case will show, we think, that the remark of the learned author of it, in reference to the Maggard-Pond Case, was obiter, and in no manner affected the judgment in that case, which was affirmed. Subsequently, in Owen v. Baer, 154 Mo. 538, 55 S. W. 644, the Maggard-Pond decision was discussed arguendo by Judges Marshall, Sherwood, and the writer hereof, and an examination of those opinions will demonstrate that Judges Brace, Marshall, Valliant, and Robinson and the writer all adhered to and approved the decisions in State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469, and Ex parte Swann, and the cases above cited which followed those decisions, and Judges Sherwood and Burgess dissented from that view. so that those decisions are still controlling authority on this question as to this law now under consideration. Surely, if anything is ever to be held settled by judicial opinion, and if the doctrine of stare decisis is not to be entirely discarded, it...