State v. Joyner

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: State v. Joyner, 81 N.C. 534 (N.C. 1879)
• Decision Date: 30 June 1879
• Parties: STATE v. E. C. JOYNER.

81 N.C. 534

STATE

v.E. C. JOYNER.

Supreme Court of North Carolina.

June Term, 1879.

INDICTMENT for Retailing Liquor, tried at Spring Term, 1879, of NORTHAMPTON Superior Court, before Eure, J.

The defendant was indicted in the following words: “The jurors for the state upon their oath present, that E. C. Joyner late of the county aforesaid at and in the county aforesaid, on the 20th day of March, 1879, unlawfully did sell to one A. H. Reid one pint of intoxicating liquor contrary to the statute in such case made and provided.” The jury returned a special verdict, to wit, “the defendant sold to A. H. Reid in Northampton county on the 20th day of March, 1879, one pint of intoxicating liquor.” And thereupon the court held that defendant was guilty; judgment, appeal by defendant, whose counsel contended that the act under which the indictment was framed is unconstitutional.

Attorney General, for the State .

Messrs. W. Bagley, and Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

The defendant is charged with violating the first section of the local act of March 22nd, 1875 (Act 1874-'75, ch. 255, § 1), and the jury rendered a special verdict in which they find “that the defendant sold to A. H. Reid in Northampton county on the 20th day of March, 1879, one pint of intoxicating liquor,” as specified in the bill of indictment. The court being of opinion that upon this finding the defendant was guilty, pronounced judgment, from which the defendant appeals. The points made in this court and strenuously contested for the defendant, relate, first, to the validity of the enactment, and secondly, to the sufficiency of the facts charged and found to constitute an offence under it.

The first and second sections of the act are as follows:

Sec. 1. That it shall be unlawful for any person to sell within Northampton county any intoxicating liquor by the measure less than one quart; provided nevertheless that nothing herein contained shall affect any retail license already granted by the county commissioners.

Sec. 2. That it shall be unlawful for any person to sell within said county any intoxicating liquor, other than that made by him or her.

The third section makes a violation of the act a misdemeanor punishable by a fine of “not less than thirty nor more than two hundred dollars.”

It is apparent upon a proper construction of the statute, and to make the sections consistent, one with the other, that all traffic in intoxicating liquor, by the small measure less than a quart, is absolutely forbidden, and the selling in larger quantities is restricted to liquor which the seller himself manufactures. The act of selling by measure less than a quart, with which the defendant is charged, by whomsoever done, and wherein the liquor sold may have been made is under an unconditional prohibition. Consequently no negative averments in the bill are required and no additional facts need be found to constitute the offence.

The argument against the validity of the law, because of the discrimination contained in the second section in favor of the seller's own product, has no application to the general interdict found in the first. The discrimination is not against citizens of other counties nor liquors elsewhere manufactured, but every person residing in or out of the county is at liberty to sell and dispose of his own products, above the limited measure, in Northampton as in other counties. There are therefore no unequal and illegal distinctions in the act subject to condemnation under the constitution of the state or of the United States, and the learning contained in the argument for the defendant has no bearing upon the case.

But we do not concede that section two as interpreted by his counsel restrains this exercise of legislative power. The right of a state to regulate, or to prohibit wholly or in part the traffic in spirituous or intoxicating liquor has been asserted and sustained by repeated adjudications in the courts of the different states, and is recognized in numerous cases before the supreme court of the United States from the License Cases reported in 5 Wall., 452, down to the recent case of Bartemeyer v. Iowa, 18 Wall., 129, where it was contended that such restraints were imposed by the new constitutional amendments. “The weight of authority is overwhelming,” says Mr. Justice MILLER delivering the opinion, “that no such immunity has heretofore existed as would prevent state legislatures from regulating and even prohibiting the traffic in intoxicating drinks with a solitary exception. That exception is the case of a law operating so rigidly upon property in existence at the time of its passage, absolutely prohibiting its sale as to amount to depriving the owner of his property.” The subject is discussed and the authorities cited and commented on by Judge COOLEY in his valuble treatise on Constitutional Limitations at page 583 and following, and the competency of the state thus to legislate fully established.

But if the alleged repugnancy of the second section to the federal constitution did exist, it does not affect the validity of the preceding prohibitory clause, under which the indictment is framed. “When a part of a statute,” says Judge COOLEY, “is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have...