Ex parte Swann

• Decision Date: 18 June 1888
• Citation: 9 S.W. 10,96 Mo. 44
• Parties: Ex Parte Swann
• Court: Missouri Supreme Court

9 S.W. 10

96 Mo. 44

Ex Parte Swann

Supreme Court of Missouri

June 18, 1888

Prisoner remanded.

Gage Graves & Aull for petitioner.

(1) The provisions of this act contravene section twenty-five article two, of the bill of rights of the state of Missouri which provides "that excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishment inflicted." Also article eight of the amendments to the constitution of the United States, which provides that "excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishment inflicted." It inflicts punishment different from and in excess of that prescribed by the "Downing act," which is the law of the land. Cooley's Const. Lim. [5 Ed.] 432; Wally v. Kennedy, 2 Yerg. 554; Bull v. Conroe, 13 Wis. 233; Norton v. State, 3 So. 665; Longbridge v. State, 3 So. 667; Geebrick v. State, 5 Clarke [Iowa] 491. (2) This act is local or special. It affects only the counties or cities adopting it, and only operates therein. The Downing law and the pharmacists' and druggists' act are in force throughout the state save wherein their operation is suspended by the adoption of this act. Potter's Dwar. 52, 53. To the same effect see 1 Kent Com. 459, 460; 1 Blackst. Com. 85, 86; Sedgwick on Stat. and Const. Constr. 529; People v. Supervisors, 43 N.Y. 10. See also cases cited in point 1, supra; Earle v. Board, 55 Cal. 489; State v. The Judges, 21 Ohio St. 11; State v. Toole, 71 Mo. 650; City v. Clark, 68 Mo. 589. (3) The force and effect of this act is to repeal two general laws, i. e., the "Downing Law" and the "Pharmacists' and Druggists' Law" in counties and cities where adopted. See cases cited in point 1, supra; State ex rel. v. Heidorn, 74 Mo. 410; Railroad v. County, 53 Mo. 28; Gorman v. Hammond, 28 Geo. 85; Mullen v. People, 31 Ill. 444; State v. Horsey, 14 Ind. 185; State v. Pierce, 14 Ind. 302; Flaherty v. Thomas, 12 Allen, 428; State v. Smith, 7 Clark [Ia.] 244; People v. State, 32 Barb. 102; State v. Stoll, 2 Rich. [N. S.] 538. For if this be not so, both laws being in force in a given county, a violation of one constitutes a violation of the other, and thereby the offender would be subjected to two criminal prosecutions contrary to section twenty-three, article two, of the bill of rights. (4) Therefore this act contravenes section fifty-three, article four, of the constitution of Missouri, which provides, "In all other cases where a general law can be made applicable, no local or special law shall be enacted. * * * Nor shall the general assembly indirectly enact such special or local law by the partial repeal of a general law." Cooley's Const. Lim. [5 Ed.] 484; Davison v. Johonot, 7 Met. [Mass.] 393, and cas. cit. (5) This law contravenes section one, article fourteen, amendment of the constitution of the United States, which provides, "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 law." Because the violation of this law in a county wherein it is in force is visited with a greater punishment than could be inflicted for a violation of the "Downing Law" and the "Pharmacists' and Druggists' Law," which are the general law of the land, save where abrogated by the adoption of the "Wood Law." Ah Kow v. Nunan, 5 Saw. 552; Pierson v. Portland, 69 Me. 278; State v. Hays, 81 Mo. 586; Ward v. Flood, 48 Cal. 51. (6) If the law be unconstitutional for any of the foregoing reasons, the court will entertain jurisdiction of this proceeding. Ex parte Page, 49 Mo. 291; Feelig's case, 12 Cush. 598; Ex parte Bethurum, 67 Mo. 545; People v. Ruff, 3 Parker [C. R.] 216; Ex parte Marmaduke, 91 Mo. 228; Ex parte Burnett, 30 Ala. 461; Ex parte Slater, 72 Mo. 102; Gurney v. Gufts, 37 Me. 130; Ex parte McDonald, 19 Mo.App. 370; Ex parte Gibson, 31 Cal. 619. (7) This act is void, because it delegates to the people the power of legislation. Lammert v. Lidwell, 62 Mo. 188; State v. Field, 17 Mo. 529; Cooley's Const. Lim. [5 Ed.] 139; Rice v. Foster, 4 Har. [Del.] 479; Parker v. Commonwealth, 6 Pa. St. 507; Gibson v. Mason, 5 Nev. 283; State v. Court, 36 N. J. Law, 72; State v. Geebrick, 5 Iowa, 491; State v. Weir, 33 Iowa 134; State v. Morris, 36 N. J. L. 72.

B. G. Boone, Attorney General, and Champ Clark, Prosecuting Attorney of Pike County, contra.

(1) This court, at an early day, declared the retail liquor traffic to be "a demoralizing and pauper-making business," and a mere privilege, and that, in determining the extent to which the privilege goes, the law should be strictly construed against the traffic. Schmidt v. State, 14 Mo. 137, and cases cited. (2) This court has decided: "The state has the right, in the exercise of its police power, to prohibit the sale of intoxicating liquors without license." State ex rel. v. Hudson, 78 Mo. 302; Austin v. State, 10 Mo. 591; State v. Lemp, 16 Mo. 389; State v. Searcy, 20 Mo. 489. (3) This court has affirmed the constitutionality of "The Wood Local Option Law," with the exception of the ninth section -- on which no opinion was expressed. State ex rel. v. Pond, 93 Mo. 606. (4) The local option law does not violate any provision of the constitution of the United States, or any amendment thereto. This proposition is establishsd and sustained by a long line of decisions. Houston v. Moore, 5 Wheat. 1; Barron v. Baltimore, 7 Pet. 243; New York v. Miln, 11 Pet. 102; Pervear v. Massachusetts, 5 Wall. 475; Slaughter House cases, 16 Wall. 36-130; Wilkinson v. Utah, 9 Otto, 130-137; Bowman v. Lewis, 11 Otto, 22-23; Barbier v. Connelley, 113 U.S. 31; Hayes v. Missouri, 120 U.S. 68-72; Schmidt Bros. v. Cobb, 119 U.S. 286-295; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Foster v. Kansas, 112 U.S. 205; United States v. Cruikshank, 2 Otto, 542-569; Cooley's Const. Lim. [2 Ed.] 397, 581-584; Mugler v. Kansas, 123 U.S. 623; State v. Shricker, 29 Mo. 265; Railroad v. Maguire, 49 Mo. 490; State v. Ebert, 40 Mo. 186; License Tax cases, 5 Wall. 471; Livingston v. Moore, 7 Pet. 551; Twitchell v. Commonwealth, 7 Wall. 321; Kelly v. Illinois, 104 U.S. 78; Presser v. Illinois, 116 U.S. 252, 265; Shies v. Illinois, 123 U.S. 131, and cases cited. (5) The penalty, as prescribed by section nine, is not cruel and unusual, and the fine is not excessive within the meaning of section twenty-five, article two, constitution of Missouri. State v. Williams, 77 Mo. 310; James v. Commonwealth, 12 Serg. and Rawle, 220; Commonwealth v. Hitchings, 5 Gray, 482; Pervear v. Massachusetts, 5 Wall. 475; State v. Miller, 94 N.C. 904. This North Carolina case was one, "where defendant kept a retail liquor-shop, in which he suffered games of cards to be played for money and articles of value; held, that a fine of two thousand dollars and imprisonment for thirty days and thereafter, until the fine and costs are paid, is not excessive punishment." Cooley's Const. Lim. (2 Ed.) 328-330. (6) The chief objection urged against the local option law is, that in different localities in the state there are or may be different penalties, and unequal for illegally selling intoxicating liquors. Where the Wood law is in force the punishment is "by a fine of not less than three hundred dollars, nor more than one thousand dollars, or by imprisonment in the county jail not less than six months, nor more than twelve months, or by both such fine and imprisonment;" but, in places where the Wood law has not been adopted, the punishment consists of a fine ranging from forty to two hundred dollars; provided, the criminal is not a licensed druggist and does not fall within any of the other exceptions to the common rule. The decisions of the supreme court of the United States above cited, abundantly prove that a state law which "affects all citizens alike within a given locality or district or territory," is not in conflict with the constitution of the United States in general, and the fourteenth amendment in particular; and the following cases show conclusively that the fact of there being different penalties in different localities or counties in Missouri for the same offense does not render the Wood law unconstitutional. Hayes v. Missouri, 120 U.S. 68-72; State v. Hayes, 88 Mo. 344; Bowman v. Lewis, 11 Otto, 22-23; Rutherford v. Heddens, 82 Mo. 388; Kelley v. Meeks, 87 Mo. 396; Laws of 1881, pp. 69, 70 and 71; Laws of 1885, pp. 63, 64. (7) At the very time this local option law was enacted there was not even the semblance of uniformity and equality in the laws and punishments regarding the illegal traffic in intoxicating liquors.

Black, J. Ray, J., absent; Sherwood, J., dissents.

OPINION

Habeas corpus.

Black J.

-- The act of April 5, 1887, entitled "An act to provide for the prevention of the evils of intemperance by local option," etc., was adopted, by a majority vote, as the law of all that part of Pike county outside of the city of Louisiana, a city of more than twenty-five hundred inhabitants.

Public notice of the result of the election was duly given. Thereafter the petitioner Flem Swann was, by a justice of the peace, found guilty of selling intoxicating liquors in violation of the law. The justice assessed the punishment at a fine of three hundred dollars and three hundred and sixty-five days imprisonment in the county jail, and until said fine and costs were paid. The petitioner seeks to be discharged from imprisonment under the commitment by the writ of habeas corpus. The questions presented arise upon a demurrer to the return made to the writ by the keeper of the jail.

Some of the questions sought to be made under the general grounds of the demurrer were determined in the recent case of the State ex rel. v. Pond, 93 Mo....