State v. Bradford

• Decision Date: 14 September 1899
• Citation: 80 N.W. 143,12 S.D. 207
• Parties: STATE v. BRADFORD.
• Court: South Dakota Supreme Court

80 N.W. 143

12 S.D. 207

STATE v. BRADFORD.

Supreme Court of South Dakota

September 14, 1899

Error to circuit court, Meade county; Joseph B. Moore, Judge.

Clarence L. Bradford was indicted for a violation of the liquor laws. From an order sustaining a demurrer to the indictment, the state brings error. Reversed.

John L Pyle, Atty. Gen., and J. F. McClung, State's Atty (Robert C. Hayes, of counsel), for the State.

M McMahon and McLaughlin & McLaughlin, for defendant in error.

CORSON P. J.

The defendant in error was indicted by the grand jury of Meade county for violating one of the provisions of section 12 of chapter 72 of the Laws of 1897, entitled "An act to provide for the licensing, restriction and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors." To this indictment the defendant demurred on the ground that the facts stated therein did not constitute a public offense. The demurrer was sustained, and the order sustaining the demurrer and the judgment entered thereon are now before us for review on a writ of error issued on the part of the state.

The demurrer seems to have been sustained by the learned circuit court upon the theory that the adoption of the amendment to the constitution known as "Article 27" had the effect of repealing, abrogating, and annulling the provisions of said chapter 72. That court seems to have taken the view that the provisions of that amendment are self-executing, and took effect upon its approval and ratification by the people in 1898; and this is the view urged by counsel for the defendant in error. Counsel on behalf of the state contend that the provisions of the said amendment are not self-executing, and the amendment will not become effective as such until the legislature prescribes regulations for the enforcement of the same, and provides suitable and adequate penalties for its violation.

The legislature at its session in 1897 proposed, agreed to, and submitted to a vote of the people for their approval and ratification, the following amendment to the constitution:

"Section 1. The manufacture and sale of intoxicating liquors shall be under exclusive state control and shall be conducted by duly authorized agents of the state who shall be paid by salary and not by commissions. All liquors sold shall be first examined by a state chemist and the purity thereof established. Sec. 2. The legislature shall by law prescribe regulations for the enforcement of the provisions of this article and provide suitable and adequate penalties for the violation thereof."

At the general election in 1898 a majority of the electors voting thereon approved and ratified the amendment. The legislature at its session in 1897 enacted the license law, which was approved and took effect March 3, 1897. The legislature at its session in 1899 failed to prescribe any regulations for the enforcement of article 27, and passed no law upon the subject, other than one submitting this question to the people: "Shall article 27 of the constitution be repealed?" It will be observed that, while the amendment in question provides that the manufacture and sale of intoxicating liquors shall be under exclusive state control, it also provides that such manufacture and sale shall be conducted by duly-authorized agents of the state, who shall be paid by salary, and not by commissions, and that all liquors sold shall be first examined by a state chemist, and the purity thereof established. It will be also observed that no provision is made for the appointment or election of such agents or of a state chemist; that no provision is made prescribing the qualifications, defining the duties, or providing compensation for such agents; that no provision is made prescribing the qualifications, defining the duties, or providing for compensation for a state chemist; and that no provision is made providing for the manufacture or purchase of the intoxicating liquors to be sold, nor any provision made for funds for carrying into effect the proposed new system. It would seem, therefore, from the provisions of that section, that it was the intention of the legislature in proposing, agreeing to, and submitting the proposed amendment, and of the voters in approving and ratifying it, to outline a plan or scheme for the control of the manufacture and sale of intoxicating liquors by the state, to be put in force by the legislature whenever it should prescribe regulations for the enforcement of the same. That such was the intention is also clearly apparent from the second section of the amendment, which provides that the legislature shall by law prescribe regulations for the enforcement of the said article, and provide suitable and adequate penalties for the violation thereof. The language, "prescribe regulations for the enforcement of the provisions" of said article, clearly contemplates that the same was to be given force and put into execution by the legislature. This construction of the amendment is clearly in harmony with the views of the text writers and the adjudicated cases. Judge Cooley, in his work on Constitutional Limitations, says: "A constitutional provision may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but, if it fails to indicate its range and to provide proper machinery, it is not in this particular self-executing, and legislation is essential. Rights in such a case may lie dormant until statutes shall provide for them, though, in so far as any distinct provision is made, which by itself is capable of enforcement, it is law, and all supplementary legislation must be in harmony with it." Cooley, Const. Lim. (5th Ed.) p. 100. The author of the article on "Constitutional Law" in 6 Am. & Eng. Enc. Law (2d Ed.) p. 915, states the rule applicable to this case as follows: "Where a constitutional provision furnishes no rule for its own enforcement, or where it expressly or impliedly requires legislative action to give effect to the purposes contemplated, it is not self-executing." State v. Swan, 1 N.D. 5, 44 N.W. 492; People v. Gardner, 59 Barb. 198; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re State Census, 6 S. D. 540, 62 N.W. 129; Williams v. Mayor, etc., 2 Mich. 560; Hays v. Hays (Idaho) 47 P. 732; State v. Thompson, 2 Kan. 427; McHenry v. Downer, 116 Cal. 20, 47 P. 779; State v. Ewing, 17 Mo. 515; In re State Census (Colo. Sup.) 21 P. 477; State v. Scott, 9 Ark. 270; In re House Bill (Colo. Sup.) 21 P. 470; Calhoon v. Com., 20 Grat. 733; Erie Co. v. City of Erie, 113 Pa. St. 360, 6 A. 136; Indiana Co. v. Agricultural Soc. of Indiana Co., 85 Pa. St. 357; Opinion of the Justices, 3 Gray, 601; Lehigh Iron Co. v. Lower Macungie Tp., 81 Pa. St. 482.

This doctrine was distinctly announced by the supreme court of the United States in Groves v. Slaughter, 15 Pet. 449. In that case Mr. Justice Thompson, in speaking for the court says: "This obviously points to something more to be done, and looks to some future time, not only for its fulfillment, but for the means by which it was to be accomplished. *** But there is nothing in this provision which looks like withdrawing the whole subject from the action of the legislature. On the contrary, there is every reason to believe, from the mere naked prohibition, that it looked to legislative enactments to carry it into full operation. And, indeed, this is indispensable. There are no prohibitions or sanctions provided in the constitution for its due and effectual operation. *** Admitting the constitution is mandatory upon the legislature, and that they have neglected their duty in not carrying it into execution, it can have no effect upon the construction of this article. Legislative provision is indispensable to carry into effect the object of this prohibition. *** It is unreasonable to suppose that if this prohibition was intended, per se, to operate without any legislative aid, that there would not have been some guards and checks thrown around it to insure its execution." The court held that, until the legislature enacted the necessary laws to carry the constitutional provision into effect, the same was not in force. The case of State v. Swan, supra, is directly in point. The amendment under consideration in that case provided that no person should, within that state, manufacture or sell any intoxicating liquors, and that the legislative assembly should by law prescribe regulations for the enforcement of the provisions of the article, and should provide suitable penalties for the violation thereof. The learned supreme court of the state of North Dakota, in a very exhaustive opinion, held that the provisions of the license law in force when the amendment was adopted continued in force until the required regulations were prescribed by the legislature. The opinion of the judges of the supreme court of the state of Massachusetts, reported in 3 Gray, 601, is also quite directly in point. It appears that prior to 1855 certain officers of the state of Massachusetts were appointed. In that year an amendment was...