Ex parte Strauch

• Decision Date: 21 March 1945
• Docket Number: A-10426.
• Parties: Ex parte STRAUCH.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

157 P.2d 201

80 Okla.Crim. 89

Ex parte STRAUCH.

No. A-10426.

Court of Criminal Appeals of Oklahoma

March 21, 1945

Original habeas corpus proceedings by Louis Strauch against George Goff, Sheriff of Oklahoma county.

Petition denied, and petitioner remanded to custody.

15. Legislative act regulating sale of 3.2 beer and operation of public dances, and exempting certain classes from provisions of Act will be sustained where such classification is neither unreasonable, capricious nor arbitrary.

16. Legislative act making its terms inapplicable to "hotels legally licensed to sell such beverages on the 15th day of March, 1943", is arbitrary and invalid in so far as it attempts to distinguish between hotels in operation before and after March 15, 1943.

17. The phrase "on the 15th day of March, 1943," being an arbitrary date, is stricken and deleted from said act; but its validity does not affect the constitutionality of the remainder of said act because of the savings clause therein.

Irvine E. Ungerman and W.C. Henneberry, both of Tulsa, and T. Jack Tellegen, of Oklahoma City, for petitioner.

Randell S. Cobb, Atty Gen., Sam H. Lattimore, Asst. Atty. Gen George Miskovsky, Co. Atty., and Norman Futor, Asst. Co. Atty., of Oklahoma City, for respondent.

John H Miley, of Oklahoma City, amicus curiae.

PER CURIAM.

Petitioner Louis Strauch, has filed his application for writ of habeas corpus, alleging that he is being unlawfully imprisoned and restrained by George Goff, Sheriff of Oklahoma County. That such restraint is by reason of his having been convicted in the Court of Common Pleas of Oklahoma County, Oklahoma, on the 15th day of July, 1943 where he was charged with the crime of selling beer in a tavern where dancing was permitted.

The statute under which petitioner was charged and convicted is Tit. 37 O.S.Supp.1943 §§ 211 to 218, inclusive, and is as follows:

"§ 211. From and after the effective date of this Act (June 30, 1943), and subject to the provisions of Section 6 hereof (§ 216 this Tit.), it shall be unlawful for any person, firm, co-partnership, association, or corporation to sell or otherwise dispense beverages at retail containing more than one-half of one per cent (1/2 of 1%) of alcohol by volume and not more than three and two-tenths per cent (3.2%) of Alcohol by weight, on premises wherein public or private dancing is conducted or permitted, whether said dancing is under the same or different ownership and management. For the purpose of this Act the word 'premises' shall mean and include the real property or building, and any adjoining property connected thereto by any private passageway, on or in which such dancing is conducted or permitted.

"§ 212. From and after the effective date of this Act (June 30, 1943), and subject to the provisions of Section 6 hereof (§ 216 this Tit.) it shall be unlawful for any person, firm, co-partnership, association, or corporation, to sell, or otherwise dispense for consumption on the premises beverages containing more than one-half of one per cent (1/2 of 1%) of alcohol by volume and not more than three and two-tenths per cent (3.2%) of alcohol by weight at any place in this State outside the limits of any incorporated city and town where the public entrance or entrances to which place are within one thousand (1000) feet of the nearest public entrance to premises outside the limits of any incorporated city or town wherein public or private dancing is conducted or permitted.

"§ 213. From and after the effective date of this Act (June 30, 1943), it shall be unlawful for any place licensed to sell beverages containing more than one-half of one percent (1/2 of 1%) of alcohol by volume and not more than three and two-tenths (3.2%) per cent of alcohol by weight to sell such beverages for consumption on the premises between the hours of 12 o'clock midnight and 7 o'clock a.m. excepting Saturday nights when such beverages may not be sold between the hours of 2 o'clock a.m. and 12 o'clock noon on Sundays.

"§ 214. Subject to the provisions of Section 6 hereof (§ 216 this Tit.) it shall be unlawful for any person, firm, co-partnership, association or corporation, from and after the effective date of this Act (June 30, 1943), to open a public or private dance hall:

"(1) In any incorporated city or town in any location, the entrance or entrances to which dance hall shall be within three hundred (300) feet, as pedestrians travel, of the nearest entrance to any place in which beverages, as defined in Section 1 of this Act (§ 211 this Tit.), are sold for consumption on the premises:

"(2) Outside the limits of any city or town in any location, the entrance or entrances to which dance hall shall be within one thousand (1000) feet, as pedestrians travel, of the nearest entrance of any place outside the limits of any incorporated city or town in which beverages, as defined in Section 1 of this Act (§ 211 this Tit.), are sold for consumption on the premises.

"§ 215. No original or renewal license shall be issued, pursuant to the laws of this State, to any applicant for the sale of such beverages defined in Section 1 hereof (§ 211 this Tit.), at any place wherein the sale of such beverages is forbidden in Section 1 and Section 2 of this Act (§§ 211, 212 this Tit.).

"§ 216. The limitations on the sale of Beverages, and issuance of licenses therefor, contained in Sections 1, 2 and 5 of this Act (§§ 211, 212, and 215 this Tit.), shall not be applicable to hotels legally licensed to sell such beverages on the 15th day of March, 1943, nor as they relate to dancing in private homes, or to private dances conducted for recreational purposes and not for profit by bona fide lodges, posts, clubs, fraternal, benevolent, or charitable organizations; nor shall the provisions of this Act prevent the sale or licensing of the sale of such beverages in drug stores, cafes, or restaurants selling food for consumption on the premises, in which drug stores, cafes or restaurants dancing is not conducted or permitted.

"§ 217. Any person violating any provision of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than five hundred ($500.00) Dollars or by imprisonment in the county jail for a term of not more than six (6) months, or by both such fine and imprisonment; and such violation shall be additional grounds for revocation of any license or permit for the sale of such beverages, as and in the manner provided by law.

"§ 218. If any section, sentence, clause or phrase of this Act (§§ 211 to 218 this Tit.) is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this Act. The Legislature hereby declares that it would have passed this Act, and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, sentences, clauses or phrases be declared unconstitutional."

It is contended by petitioner that the above statute, under which he was charged and convicted, is unconstitutional and void; and to uphold this contention, he presents, in his brief, four propositions, as follows:

"I. That the law under which the State attempts to prosecute this petitioner and upon which the prosecution and conviction was based is unconstitutional in that said law violates the Fourteenth Amendment to the Constitution of the United States of America.

"II. That the said law is unconstitutional and in violation of Article 2, Section 32 of the Constitution of the State of Oklahoma, in that it attempts to give to certain persons a monopoly as to the sale of beer where dancing is permitted.

"III. That the said law is in violation of the provisons of Article 2, Section 2, of the Constitution of the State of Oklahoma, in that said law deprives the petitioner herein of his inherent right to the enjoyment of his own industry.

"IV. That section 6 of the Act (Tit. 37 O.S.A.Sup.1943 § 216) is clearly unconstitutional and that sections 1, 2, 4 and 5 (§§ 211, 212, 214 and 215), being clearly dependent on said section 6 (§ 216) in such a manner as to indicate that the Legislature would not have passed the same independently of said section 6 (§ 216), all of said sections should be held unconstitutional."

Briefs have been filed by Petitioner, by the Attorney General for the State, and an amicus curiae brief by the Hon. John H. Miley, who represents certain parties interested in the validity of the statute about quoted; and reply briefs have been filed both to the answer brief of the State, and the amicus curiae brief.

When oral argument was presented, the question was raised as to whether this court should assume original jurisdiction in a habeas corpus proceeding to test the constitutionality of this statute, or whether the question should properly be presented by appeal from the judgment of conviction.

While the Criminal Court of Appeals does not look with favor upon testing the constitutionality of a statute by habeas corpus, nevertheless, it has the authority to pass upon the constitutionality of a statute in such a proceeding, and will exercise that authority where necessity exists and the public good demands. The Supreme Court has announced and followed the same rule.

In the case of Ex parte Herrin, 67 Okl.Cr. 104, 93 P.2d 21, the application was for habeas corpus brought for the purpose of testing the barber law (Tit. 59 O.S.1941 § 102). We assumed jurisdiction and rendered an opinion in the habeas corpus action on the merits, determining the constitutionality of the act.

The case of Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977 119 A.L.R. 1471, was an original action in the Supreme Court of this State, seeking a writ of prohibition to...