Garrigan v. Kennedy
| Decision Date | 21 December 1904 |
| Citation | 101 N.W. 1081,19 S.D. 11 |
| Parties | GARRIGAN v. KENNEDY et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County.
Action by Mary Garrigan against Samuel Kennedy and others. Judgment for plaintiff. Defendants appeal. Affirmed.
Robertson & Dougherty and Kittredge, Winans & Scott, for appellants. Joe Kirby, for respondent.
This is an action by the plaintiff, as widow of Michael Garrigan deceased, to recover of the defendants damages for the loss of support for herself and child, caused by the intoxication of her husband by intoxicants sold him or given to him by the defendant Kennedy. Verdict and judgment were in favor of the plaintiff, and the defendants have appealed.
It is alleged in the complaint, in substance, that the plaintiff was the widow of Michael Garrigan, deceased, and that she had dependent on her for support a minor son; that the defendant Kennedy was a licensed saloon keeper in the town of Dell Rapids, and that defendants Smith and Gillman were sureties upon his bond as such saloon keeper; that for a long time prior and at all times subsequent to the 1st day of July 1900, and up to the time of the death of the said Michael Garrigan, he was a person in the habit of getting intoxicated, and was for the greater part of the last year of his life in a state of habitual intoxication by and from the use of intoxicating liquors; that at divers and sundry times prior and subsequent to July 1, 1900, and up to the time of the death of said Garrigan, and while he, the said Garrigan was in the habit of getting intoxicated, and at divers and sundry times while he, the said Garrigan, was intoxicated, the defendant Kennedy did directly and indirectly, by himself as well as by his clerks, agents, and servants, sell, furnish, give, and deliver spirituous liquors to the said Garrigan; that said intoxicating liquors so sold by said defendant Kennedy to the said Garrigan were sold to him to be used as a beverage, and were by him used for such purpose in the saloon aforesaid, as well as elsewhere; that by reason of the use of such liquors aforesaid the said Garrigan was kept practically in a state of continued intoxication up to the time of his death, and was rendered an inebriate, and incapable of attending to his business and supporting his wife and child; that the said Garrigan was a barber by trade, and possessed a shop of his own in Dell Rapids, and was, when sober, enabled to earn large sums of money and support said wife and child in a respectable and becoming manner; that by reason of said intoxication, induced by intoxicating liquors sold to him by the said Kennedy, he was for a long time prior and at all times subsequent to the 1st day of July, 1900, rendered incapable of continuing his business, and incapable of carrying the same on, and was rendered thereby incapable of supporting his said wife and child; that by reason of the use of said intoxicating liquors as aforesaid the mind of said Garrigan gave way, and he became despondent and insane, and did, upon April 1, 1901, while in said condition, induced by the use of intoxicating liquors purchased from the said Kennedy, take his own life; that the plaintiff brings the action to recover of the said defendants damages which she has suffered by reason of the facts aforesaid, for herself as well as for her said child, Walter Garrigan, now dependent on her for support; that by reason of the death of said Garrigan the plaintiff and her said minor child have been left without means of support other than that obtained by her own personal exertions; that by reason of the facts aforesaid the plaintiff has been damaged in the sum of $5,000. Wherefore the plaintiff demands a judgment against the said Kennedy for the sum of $5,000 and against the said Smith and Gillman, as sureties, in the sum of $2,000, together with costs and disbursements of the action. To the complaint is annexed, and made a part thereof, a copy of the bond executed by the said Kennedy and sureties in the usual form.
The defendants, in their answer, admit the allegation that the plaintiff is the widow of Michael Garrigan, deceased; that she has a minor son; that the defendant Kennedy has been and is a duly licensed vendor of spirituous liquors, as alleged in the complaint, and that said defendants executed the bond as set forth in the complaint; that Michael Garrigan was a barber by trade during the time mentioned in the complaint, and that he committed suicide on or about the 1st day of April, 1901, and they deny each and every allegation in the plaintiff's complaint contained which is not therein expressly admitted. The case was tried to a jury, which returned a verdict in favor of the plaintiff for $2,000. The defendants seek a reversal of the judgment on the grounds: (1) That the act providing for the licensing, restriction, and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors, constituting chapter 72, p. 203, of the Laws of 1897, and being now article 6 of chapter 27 of the Political Code, is in violation of section 21, art. 3, of our state Constitution, which provides, "No law shall embrace more than one subject, which shall be expressed in its title," in that the law contains two subjects, and but one is expressed in its title; that it contains one subject which relates solely to the licensing, restriction, and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors, and another relating to an entirely new and independent cause of action, wholly unknown to the common law, which contains all the necessary provisions regarding parties, evidence, and procedure. (2) That the evidence is insufficient to justify the verdict, and that the court erred in refusing to grant defendants' motion to direct a verdict in their favor, for the reasons therein stated. (3) That the court erred in the admission of testimony. (4) That the court erred in refusing and giving instructions to the jury.
It is contended by the defendants that the provision of our state Constitution relating to the subject of titles to legislative acts is mandatory, and that it prohibits the Legislature from passing an act embracing more than one subject, and imposing upon it the duty of expressing the subject in the title. While we agree with the contention of counsel that the constitutional provision is mandatory, we are unable to agree with them in their conclusion that the act in controversy contains two subjects not expressed in the title. The act itself provides for the licensing, restriction, and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors. The provisions referred to, as stating the second subject, clearly come within the provisions for restricting and regulating the business. One method of restricting and regulating the business would naturally be the imposing of penalties and liabilities upon parties engaged in the manufacture or sale of intoxicating liquors, and in providing a method by which such penalties and liabilities on the part of persons so engaged in the traffic are to be enforced. The contention of the appellants that the prohibition of the sale or gift of intoxicating liquors to certain classes of persons mentioned in sections 11 and 16 creates entirely new causes of action, and the establishment of this very arbitrary and unfair rule of proceedings has nothing to do with, and is not germane to, the act providing a method of licensing, restriction, and regulation, and that the title to the act does not in any manner indicate these portions of it, is untenable. This is altogether too narrow a construction of the constitutional provision, and under the contention of the counsel but few acts of the Legislature could be sustained.
It will be noticed that the title to the act we are considering is broad and comprehensive, and that it provides for the licensing, restriction, and regulation of the business. Section 16 of the act, therefore, providing that a married woman may recover damages resulting from the sale of intoxicating liquors to her husband, is clearly in the nature of a restriction of the sale; and the same may be said of section 11, which provides that it shall be unlawful for parties engaged in the sale of intoxicating liquors to sell to an intoxicated person, to a person in the habit of getting intoxicated, or to minors. State v. Morgan, 2 S. D. 32, 48 N.W. 314; State v. Becker, 3 S. D. 29, 51 N.W. 1018; State v. Ayers, 8 S. D. 517, 67 N.W. 611; Stuart et al. v. Kirley et al., 12 S.D. 245, 81 N.W 147. This court, in construing statutes claimed to be in conflict with this provision of the Constitution, has uniformly held that this provision must have a liberal construction, and, where the act or provisions of the act claimed to be in violation of the Constitution are not shown to be clearly in conflict with this provision of the Constitution, the act will be upheld. In State v. Morgan this court says: "Upon a critical examination of these cases, however, it will be seen that, while it is necessary to construe this provision so as to prevent the evils intended to be met, yet it is desirable to avoid the opposite extreme, so as not to embarrass the Legislature in the legitimate exercise of its powers, and compel a needless multiplication of bills, designed to meet the same object." The court quotes with approval the following from State v. Miller, 45 Mo. 497: "The courts, in all the states where a like or similar provision exists, have given a liberal interpretation, and have endeavored to construe it so as not to limit or cripple legislative enactments any further than what was necessary by the absolute requirements of the law." This court a...
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