State v. Gilman
Decision Date | 09 November 1889 |
Citation | 10 S.E. 283,33 W.Va. 146 |
Parties | State v. Gilman. |
Court | West Virginia Supreme Court |
Intoxicating Liquors—Unconstitutional Act.
That portion of section 1, c. 32, Code 1887, which provides that no person, without a state license therefor, shall "keep in his possession, for another, spirituous liquors, " etc., is unconstitutional and void.
(Syllabus by the Court.)
Error to circuit court, Barbour county. Dayton & Dayton, for plaintiff in error. Atty. Gen. Caldwell, for the State.
Snyder, P. At the March term, 1889, of the circuit court of Barbour county, the grand jury found an indictment in which it is charged that J. C. Gilman, in said county, did unlawfully, and without a license therefor, " sell, offer, and expose for sale, and solicit and receive orders for, and keep In his possession for another, spirituous liquors, wine, porter, ale, beer, and drink of a like nature, This indictment is framed under the provisions of section 1, c. 32, Code 1887, and is in the precise language of the statute. It is in legal form, and, as no extrinsic facts were shown to invalidate the finding of it, I think the motion to quash was properly overruled.
The said statute was amended by chapter 29, Acts of 1887, and then, for the first time, the words, "or solicit or receive orders for, or keep in his possession for another, " were made a part of the statute. From the facts proved, it is apparent the conviction in this case must be sustained, if it is done at all, under that provision which I have italicized, "keep in his possession for another." It will be observed that this provision has no reference to the intent or purpose for which the liquor is kept in possession, but it denounces as a crime the simple fact that the liquor is kept in possession for another, however innocent the act or commendable the purpose. Has the legislature of this state the constitutional power to make such an act a crime? The fourteenth amendment to the constitution of the United States declares: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" and the same amendment makes all persons born or naturalized in the United States citizens thereof. It is conceded that the "privileges and immunities" here protected are such only as are in their nature fundamental; such as belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states of the Union, from the time of their becoming free, independent, and sovereign. What these fundamental rights are, it is not easy to enumerate; the courts preferring not to describe and define them in a general classification, but to decide each case as it may arise. The following, however, have been held to be embraced among them: " Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general good of the whole." Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380; Conner v. Elliott, 18 How. 591; In re Parrott, 6 Sawy. 349, 1 Fed. Bep. 481; 6 Myer, Fed. Dec. § 1000; Landing Co. v. Slaughter House Co., Ill U. S. 746, 4 Sup. Ct. Bep. 652. These are inalienable and indefeasible rights, which no man, or set of men, by even the largest majority, can take from the citizen. They are absolute and inherent in the people, and all free governments must recognize and respect them. Therefore it is incumbent upon the courts to give to the constitutional provisions which guaranty them a liberal construction, and to hold inoperative and void all statutes which attempt to destroy or interfere with them. Cooley,...
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