State v. Fountain

• Decision Date: 30 January 1908
• Citation: 22 Del. 520,69 A. 926
• Court: Court of General Sessions of Delaware
• Parties: STATE v. JOHN WESLEY FOUNTAIN (NO. 40) JAMES MASON (NO. 41) v. VAUGHAN BALLARD (NO. 43)

69 A. 926

22 Del. 520

STATE v. JOHN WESLEY FOUNTAIN (NO. 40)

STATE v. JAMES MASON (NO. 41)

STATE v. VAUGHAN BALLARD (NO. 43)

Court of General Sessions of Delaware, New Castle County

January 30, 1908

Court of General Sessions, New Castle County, January Term, 1908.

DEMURRERS to indictments and information.

The first two defendants above named were indicted at this term respectively, for illegally registering as a voter, and illegally offering to vote at the Local Option Election held in Delaware on November 5th, 1907. Against the defendant Ballard there was an information filed at the said term for violation of Section 7, Article 5 of the Constitution of the State of Delaware, charging him with illegally inducing another to vote at said election.

The facts and contentions of counsel appear in the opinion of the Court.

Robert H. Richards, Attorney-General, for the State.

Willard Saulsbury for the demurrants.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

PENNEWILL, J.

At the present term of this Court of General Sessions indictments were found, or informations filed, against the defendants charging them with illegally offering to vote, or illegally registering or illegally inducing another to vote in violation of Section 7, Article 5 of the Constitution of this State. To such indictments and informations general demurrers have been filed by the defendants, which allege that the indictments and informations are insufficient in law because they do not charge any indictable offense, inasmuch as the election at which the defendants offered to vote, or became registered to vote, was held under a statute which is unconstitutional and invalid, so far as that election was concerned.

The specific question, therefore, to be determined by this Court is whether that part of the said act under which the election was held, was an unconstitutional exercise of legislative power, and for that reason void and uninforceable.

The parts of the act referred to which are material to this case are the title and Sections 1, 11 and 12, Chapter 65, Vol. 24 which are as follows:

"An Act Providing for the Submission to the vote of the qualified Electors of the Several Districts of the State Mentioned in Section 2, Article XIII., of the Constitution of the State of Delaware, the question Whether the Manufacture and Sale of Intoxicating Liquors Shall be Licensed or Prohibited Within the Limits of the said Several Districts, in Accordance with said Article XIII. of said Constitution, and Fixing the Penalties for the Illegal Manufacture and Sale of Intoxicating Liquors in any of said Districts wherein there shall be a Majority of Votes Cast Against License."

"Section 1. That on the Tuesday next after the first Monday of November in the Year of our Lord one thousand nine hundred and seven, in each of the several districts of the State mentioned in Section 2, of Article XIII. of the Constitution of the State of Delaware, the question, Whether the Manu facture and Sale of Intoxicating Liquors shall be Licensed or Prohibited within the limits of said several Districts, shall be submitted to the vote of the qualified electors of said several districts. In every such district in which there shall be, upon said vote a majority against license, no person, firm or corporation shall thereafter manufacture or sell spirituous, vinous, or malt liquors, except for medical or sacramental purposes within said district, until, at a subsequent submission of such question, a majority of votes shall be cast in said district for license."

"Section 11. That if it shall appear at said election that a greater number of votes have been cast against license than for license in any of said Local Option Districts of this State, it shall be unlawful for any person or persons, firm, company, association or corporation, or the agent, officer or servant of any firm, company, association or corporation, to manufacture or sell spirtuous, vinous or malt liquors, except for medicinal or sacramental purposes within said districts, until at a subsequent submission of such question a majority of votes shall be cast in said district for license. Any person or persons, or any agent, officers or servant of any firm, company, association or corporation who shall violate any of the provisions of this Section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for the first offense, be fined not less than Fifty Dollars ($ 50.) nor more than Two Hundred Dollars ($ 200.) and the cost of prosecution and shall be imprisoned for a term not exceeding six months; and for each and every subsequent offense shall be fined not less than One Hundred Dollars ($ 100.) nor more than Five Hundred Dollars ($ 500.) and the cost of prosecution, and shall be imprisoned for a term not less than three months nor more than one year."

"Section 12. That all prosecutions for any and all violations of any of the provisions of this Act shall be upon presentment and indictment to the Court of General Sessions of the County within which the Local Option District wherein the said majority of said vote was against license is located; and any Justice of the Peace of any of said Counties shall have the same authority to receive information of any violation hereof and to hold to bail for appearance to said Court, as is now exercised by them under the laws of this State in other matters of criminal nature."

It is urged by the defendants that the said act must be declared unconstitutional and void for the following reasons:

1. "The General Assembly has no power to submit the question of license or no license to the people anywhere, in all the districts, or in any district, except at the General Election."

2. "Before the General Assembly has the power under Article XIII. of the Constitution to submit to the voters of any or all the districts of the State the question of license or no license, a majority of the members of the General Assembly in each House from each district in which such question is to be submitted must, as a condition precedent, submit a request as provided in said Article for the submission of the question. This request is necessary to give the General Assembly the power to submit the question of license or no license under Article XIII. of the Constitution."

3. "The Act is unconstitutional in that by Sections 11 and 12 thereof an unconstitutional delegation of legislative power is attempted to be made to the voters in each separate district, the penalties and processes provided by said sections being enforceable only if a majority of the electors in any district vote to enforce the same. This is clearly unconstitutional under the decisions of our Courts."

4. "The Act is unconstitutional because it violates Section 16 of Article II. of the Constitution prohibiting more than one subject being embraced in an Act or in the title thereof. The Act under consideration embraces two subjects, both of which are expressed in the title."

The briefs submitted by counsel on the respective sides are exhaustive, and the oral arguments made before this Court were remarkably able and forceful. In view of this fact, and also because of the deep and general interest felt in the decision of the question, we have given the matter the most careful consideration of which we were capable in the time at our command.

We shall consider the objections made by the defendants against the Act on the ground of its unconstitutionality, in the order in which they were argued and as above stated.

But before doing so we may say that although it does not appear that the defendants contend that the act is in conflict with any provision of the Federal Constitution, a portion of the plaintiff's brief is devoted to that subject, and it may be proper, therefore, to notice it briefly. We think it will not be denied in this day that a State Legislature, in the exercise of the police power of the State, may enact such laws as are necessary to preserve the peace and good order of society, and the safety of its members; and if the public safety or morals requires the discontinuance of any manufacture or sale, the legislature may provide for its discontinuance notwithstanding some persons may be injuriously affected or inconvenienced thereby. The police power, which is exclusively in the states, is competent to prohibit the sale and manufacture of an article of commerce which they believe to be pernicious in its effects, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.

There can be no distinction in principle in the application of the provisions of the Federal Constitution to a prohibitory statute and to a local option statute, the one being a direct and express prohibition of the sale of intoxicating liquors, and the other a conditional prohibition thereof, the condition being the result of a vote to be taken upon the question.

It can be said, therefore, as the result of an examination of many authorities, that a local option statute, such as the one in question, is not obnoxious to any provision of the Constitution of the United States.

Boston Beer Company vs. Massachusetts, 97 U.S. 25, 24 L.Ed. 989; Gundling vs. Chicago, 177 U.S. 183, 44 L.Ed. 725, 20 S.Ct. 633; Gray vs. Conn., 159 U.S. 74, 40 L.Ed. 80, 15 S.Ct. 985; Mugler vs. Kansas, 123 U.S. 623, 31 L.Ed. 205, 8 S.Ct. 273; Bartemeyer vs. Iowa, 85 U.S. 129, 18 Wall. 129, 21 L.Ed. 929; Kidd vs. Pierson, 128 U.S. 1, 32 L.Ed. 346, 9 S.Ct. 6; Giozza vs. Tiernan, 148 U.S. 657, 37 L.Ed. 599, 13 S.Ct. 721; Miller vs. Ammon, 145 U.S. 421, 36 L.Ed. 759, 12 S.Ct. 884; State vs. Allmond (Del.) 7 Del. 612, 2 Houst. 612; State vs. Wickenhoefer, 22 Del. 120, 6 Penne. 120, 64...