In re Hoover

• Decision Date: 01 March 1887
• Citation: 30 F. 51
• Parties: In re HOOVER.
• Court: U.S. District Court — Southern District of Georgia

30 F. 51

In re HOOVER.

United States District Court, S.D. Georgia, Eastern Division.

March 1, 1887

(Syllabus by the Court.)

Where the writ of habeas corpus from the United States court is sought against the sheriff of a state court by one imprisoned for the violation of a state law, the petitioner must clearly show an irreconcilable antagonism between the federal law and the state law under which he is in custody.

Where the political power of a state for the safety of its people takes the responsibility of saying that certain occupations are hurtful, and will not be permitted in its boundaries unless that declaration is so unreasonable as to be outside the domain of law, the occupation so stigmatized is no longer a right, privilege, or immunity, within the meaning of the constitution.

The right to sell intoxicating liquors is not one of the privileges and immunities of citizens of the United States which by the fourteenth amendment the states were forbidden to abridge.

The state may authorize, or refuse to authorize, the sale of liquor on such terms as it thinks proper, and the courts of the United States have nothing to do with the exercise of this police power.

The law of the state complained of in this application is reasonable necessary, and beneficial.

Charles N. West, for petitioner.

Fleming G. Du Bignon, for sheriff.

SPEER J.

On the twelfth day of February, 1887, Lemuel L. Hoover, a resident of Chatham county, and a citizen of the state of Georgia, was before the superior court of said county, the honorable A. P Adams, J., presiding, charged by indictment with retailing spirituous liquors without a license from the state. On arraignment, Hoover pleaded guilty, and thereupon he was sentenced; and the court imposed a fine on him of $250, and the costs, and ordered, in default of payment, the alternative penalty of six months' imprisonment in the common jail. Hoover refused to pay the fine and costs, and was taken into custody by John T. Ronan, sheriff; and that official, with much kindness and liberality of conduct having been apprised by Hoover that he purposed to test in this court the validity of his conviction, did not confine his prisoner, but detained him constructively. A petition for habeas corpus was immediately presented to me. Ordinarily, in cases of this character, to grant the writ is a matter of course, and the legality of the detention is determined on the return of the arresting officer. On this application, for reasons to me sufficient, I have proceeded with more hesitancy. So great is the reluctance with which the judges of the national courts interfere at any time with convictions before courts of general jurisdiction of the states, that opportunity was afforded the sheriff to show cause why the writ should not be issued. The sheriff appeared by counsel, and on this informal rule to show cause the parties were heard.

The petition alleges that Hoover is illegally restrained of his liberty because he made application to the board of county commissioners for license to sell liquor in quantities less than one gallon, at Montgomery, a suburban resort of Savannah, and the license was refused. This was done in the exercise of the power granted to the commissioners by the act of the general assembly of the state of Georgia approved October 16, 1885, entitled 'An act to change the manner of granting license for the sale of spirituous liquors, as contained in section 1419 of the Code of this state, as amended by the act approved December 22, 1884, and for other purposes;' whereby it was provided that 'persons before obtaining license to retail spirituous liquors, or sell the same in any quantity less than one gallon, must apply to the ordinary of the county, or to the county commissioners of the county, where such courts exist, in which they desire to retail or sell in any quantity less than one gallon, who have power to grant or refuse such application. Before any license shall be granted, the applicant shall present to the ordinary the written consent of ten of the nearest bona fide residents, five of whom shall be freeholders, owning land, irrespective of county lines, nearest to the place of business where such spirituous liquors are to be sold: provided, that this act shall not apply to incorporated towns or cities. ' The petitioner, having been refused a license, proceeded to sell without it.

The petitioner insists that this statute is violative of the fourteenth amendment to the constitution of the United States, and is therefore void, in that it gives an arbitrary discretion to the county commissioners to prevent him from engaging in an occupation legalized by the state, and without any sort of regard to his personal fitness for the business, or the propriety and merit of his application; that it discriminates in favor of persons residing in incorporated towns, as they need not to obtain the consent of their neighbors, and the county commissioners have no power to deny to them the license.

The powers accorded to the board of county commissioners, or to the ordinary, where there are no commissioners, are certainly unlimited. The words of the act 'who have power to grant or refuse such application,' are as broadly declaratory of absolute and final control as the anti-bar-room tendencies of the general assembly of Georgia could devise. The unreviewable character of this power is well settled. Under the old law it was held that the justices of the inferior court has no discretion to withhold the license when the terms of the law had been complied with. State v. Justices, 15 Ga. 413. But in that case the very affluent command of language for which the court at that early period was widely known utterly failed to express its regret that the inferior court did not have power to refuse the license altogether. Since the adoption of the Code, the supreme court holds uniformly that the power to refuse the license is absolute, and that they neither can nor will permit the discretion of the ordinary or of the county commissioners to be reviewed. Wiggins v. Varner, 67 Ga. 583. It is superfluous to say that this authoritative construction of a statute of the state, embracing a matter of local government, is the law to which this court deferentially, and indeed most cheerfully, conforms, in all cases where such construction is not plainly in conflict with the operative laws of the United States, or with that marvelous compendium of imperishable and dominating principles which the prophetic wisdom of our fathers embodied in the constitution of our country. To enlist the process of this court in his behalf, the petitioner must clearly show an irreconcilable antagonism between the state enactment and the constitutional declaration.

The argument of the counsel for petitioner embraces the following topics: Insistence that the liquor traffic is legalized in Georgia by the constitution of the state, art. 8, Sec. 3 authorizing the assessment of a tax on spirituous and malt liquors, and setting apart the fund arising therefrom for school purposes; by the implied sanction of the license act, (Code, 809;) and by the inspection of liquors, (Code, Sec. 1580 et seq.) This traffic, thus recognized and made lawful, must be controlled, he insists, by laws and methods uniform in character, and bearing equally upon all citizens who desire to engage in it; and this law is not equal in its operation and effect, whereas the clause of the constitution relied on declares: '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. ' Analogies were argued from precedents where the state was inhibited from restraining interstate commerce, (Railroad Co. v. Husen, 95 U.S. 465;) and from imposing a license tax on an importer, (Brown v. Maryland, 12 Wheat. 436;) and from passing ex post facto...