State v. Deschamp

• Decision Date: 01 November 1890
• Parties: STATE v. DESCHAMP
• Court: Arkansas Supreme Court

14 S.W. 653

53 Ark. 490

STATE v. DESCHAMP

Supreme Court of Arkansas

November 1, 1890

APPEAL from Scott Circuit Court, JOHN S. LITTLE, Judge.

Judgment affirmed.

W. E Atkinson, Attorney General, for the State.

Every presumption must be indulged in favor of the constitutionality of the act. Mugler v. Kansas, 123 U.S. 661.

The most that has been claimed for the commercial power of the Federal government, under the inter-state commerce clause of the constitution, was the right of introduction into the State and affording the facilities belonging to similar articles in the State with the same restrictions and burdens imposed. Welton v. Missouri, 1 Otto, 275; Tiernan v. Rinker, 12 Otto, 123; Webber v. Virginia 13 Otto, 344.

The protection is from discrimination on account of their foreign origin. Complaint cannot be made if they take their place with other similar articles produced in the State. Their foreign origin must be the basis of discrimination. Domestic articles are excluded from local option districts in the same class with the foreign.

In Kohn v. Melcher, 29 F. 433, Judge Shiras, in discussing an Iowa statute, which provided that no one could sell liquor in Iowa without a permit, and that no one could obtain a permit but a resident of the county in which it issued, said "It will be noticed that the limitation on the right to sell affects the citizens of the State as well as those of other States, in that the permit can only be procured by a resident of the county in which the permit is issued, and limits the right to sell in a particular house to be named in the permit. There is no doubt that the result of the statute is to entirely deprive citizens of other States of the right to sell in Iowa intoxicating liquors," etc. He discusses it and shows that the object was not to discriminate against citizens of other States nor against foreign products, but that the intent and purpose was to prevent violations of the prohibitory law, which were within the police power of the State, and did not violate any provision of the constitution. He held the statute valid.

In enforcing prohibition, he maintains the right of the State to restrict the sale of liquors to such persons and places as they may deem safe. He notices that, while citizens of other States are deprived of the right to sell, the same is true of a majority of the citizens of the State.

However, should the court think that the first clause of the second section of the wine act is unconstitutional, it should treat it as stricken from the act. We think the only effect of this clause is to give the producer the right to sell on the premises in local option districts. It could be separated from the other parts of the act without inconvenience or detriment. Tiernan v. Rinker, 12 Otto, supra; Ex parte Kinnebrew, 35 F. 52; Weil v. Calhoun, 25 F. 869; McCreary v. State, 73 Ala. 480; Marsh v. State, 37 Ark. 356. As to the probability of the passage of the act with the clause omitted, see reasoning in Weil v. Calhoun, 25 F. supra.

OPINION

BATTLE, J.

Appellee, Deschamp, was indicted for a violation of the act of the general assembly of the State of Arkansas, entitled, "An act to regulate the sale of wine in the State of Arkansas," approved April 3, 1889, which provides:

"Section 1. That it shall be unlawful for any person to sell wine at any place in this State except as authorized in this act.

"Sec. 2. Any person who grows or raises grapes or berries may make wine thereof, and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart; such person may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart. Provided, This shall not authorize the sale of wine in any district or locality where its sale is prohibited under special act of the general assembly.

* * * *

"Sec. 4. Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than two hundred dollars nor more than five hundred dollars."

He was indicted for unlawfully selling one quart of wine. The act which rendered the sale unlawful is set out in the indictment as follows: "The said sale not being made upon the premises where the grapes and berries were grown and the wine made, and said sale not being made in any place where the sale of intoxicating liquors are licensed and authorized by law." A demurrer to the indictment was sustained, and the State appealed.

The only question presented for our consideration is, is the act of April 3, 1889, in violation of the Federal constitution? We think so. The effect of it is to allow any person to grow or raise grapes or berries within any district now or hereafter formed under section 4524 of Mansfield's Digest and...