Kay, Application of
| Decision Date | 24 June 1959 |
| Docket Number | No. A-12780,A-12780 |
| Citation | 1959 OK CR 72,341 P.2d 284 |
| Parties | In the Matter of the Application of Charles Robert KAY for Writ of Prohibition. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. The control, suppression, or regulation of the liquor traffic has always been within the general powers of the State of Oklahoma, a subject for legislative control through the exercise of the police power.
2. The term 'police power' comprehends the power to make and enforce all wholesome and reasonable laws and regulations necessary to the maintenance, upbuilding, and advancement of the public weal and protection of the public interests. It is plastic in its nature, and will expand to meet the actual requirements of an advancing civilization and adjust itself to the necessities of moral, sanitary, economic, and political situations.
3. No principle in our system of government will limit the right of government to respond to public needs and protect the public welfare.
4. The legislative power to prohibit the manufacture, sale, giving away, barter, or otherwise furnishing of intoxicating liquors was not dependent upon Art. I, Sec. 7, Okla.Const., and the repeal of said section on April 7, 1959, by the people of the State of Oklahoma did not repeal existing statutes enacted under the police powers of the State to safeguard temperance, promote obedience to the law, and to control the use of alcoholic beverages in Oklahoma, which are still in force and effect, and such legislative acts can only be removed from the statutes by proper legislative action.
Original proceeding for writ of prohibition brought by Charles Robert Kay, wherein he seeks an order commanding the dismissal of a certain action pending against him in the Court of Common Pleas of Oklahoma County, Oklahoa.
Writ denied.
Francis G. Morgan, Oklahoma City, for petitioner.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for respondent.
This is an original proceeding brought by Charles Robert Kay, petitioner, against Carl Traub, Judge of the Court of Common Pleas, Oklahoma County, Oklahoma, for a writ of prohibition. In said petition it is alleged that Judge Traub is about to assume jurisdiction of State v. Charles Robert Kay, No. 24977, pending in the Court of Common Pleas on an information wherein it is alleged that the said Kay was unlawfully in possession of a quantity of intoxicating liquor on January 27, 1959; that the said case was set for trial on June 10, 1959, and unless prohibited from proceeding with same by this Court, that court will proceed to trial of said cause No. 24977. Petitioner contends it would be unlawful for the Court of Common Pleas so to do, and said attempt would constitute and amount to an exercise of jurisdiction it does not now possess by law. The reason for said contention, it is urged, is that on April 7, 1959, the people of Oklahoma, by a majority vote, repealed Art. I, Sec. 7, of the Constitution of the State of Oklahoma, by the adoption of Art. XXVII of said Constitution, providing for the repeal of state prohibition and the creation of an Alcoholic Beverage Control Board to control the licensing of the liquor traffic, etc., and thereby repealed all the laws in relation thereto, since there was no saving clause in the said repeal resolution retaining in force and effect the statutes enacted by the Legislature in relation thereto.
To the petition the state responded and in brief asserted that the repeal of Oklahoma's Constitutional prohibition provisions did not create a vacuum from April 7, 1959, until the said repeal provisions could be vitalized by the State Legislature and put in force and effect by legislative acts, but that the statutory provisions remained in full force until repealed by the Legislature, otherwise there would be a hiatus during which time the bootlegger could operate without restraint of law, or lawful license so to do.
In support of his position, petitioner relies on United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510. His reliance on this case is fundamentally erroneous. He overlooks the fact that the U. S. government is a government of limited and delegated powers, and as such has no general police power, save and except as may be specifically delegated to it by the states. 16 C.J.S. Constitutional Law § 177, p. 906. Therefore, the power exercised by Congress under the 18th Amendment was effective only during the life of the amendment. When the delegation or source of power was withdrawn, all Acts passed by Congress thereunder likewise fell with it. Without the power conferred by the 18th Amendment, the Federal Government had no police power to prohibit the use of intoxicating liquors. But, such is not the case where the repealing resolution voids a constitutional limitation of a preexisting power which the State Legislature already had.
Contrary to the limited powers of the Federal government delegated to it by the people, the states possess all the general powers not expressly delegated to the Federal government by the Constitution of the United States, or such that have not been expressly denied to the states, or reserved to the people themselves. In...
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