State v. Kane

• Decision Date: 16 October 1886
• Citation: 15 R.I. 395,6 A. 783
• Parties: STATE v. KANE.
• Court: Rhode Island Supreme Court

6 A. 783

15 R.I. 395

STATE

v. KANE.

Supreme Court of Rhode Island.

October 16, 1886.

Constitutional questions certified to the supreme court, under Pub. St. R. I. cap. 220, §§ 1-9.

Edwin Metcalf, Atty. Gen., for plaintiff.

Hugh J. Carroll, for defendant.

DURFEE, C. J. This is a complaint against the defendant for keeping intoxicating liquors for sale in this state, in violation of Pub. Laws, R. I. cap. 596, of May 27, 1886, entitled "An act for the suppression of intemperance." It is certified to this court on certain questions touching the constitutionality of the act.

The defendant contends that the act is repugnant to the fifth amendment of the constitution of the state, which is as follows, to-wit: "The manufacture and sale of intoxicating liquors, to be used as a beverage, shall be prohibited. The general assembly shall provide by law for carrying this article into effect." The contention is that the amendment impliedly limits the power of the general assembly to legislation designed to carry the amendment into effect, and that the act exceeds the power so limited, inasmuch as it prohibits the sale of intoxicating liquors, and the keeping of them for sale, not only for use as a beverage, but for other purposes, except as provided in sections 3 and 4. The contention assumes two points, namely: First, that the act does prohibit for other purposes, as aforesaid; and, second, that to that extent it is not legislation designed to carry the amendment into effect. The act, however, does not expressly prohibit for other purposes as assumed, and we do not see that it does so by implication. But, admitting that it does so, it is not self-evident to us that, to that extent, it is not designed to carry the amendment into effect. The purpose of the amendment is not simply to prohibit the sale of intoxicating liquors as a beverage, but to prevent it. Any act, therefore, designed to carry the amendment into effect should be framed with a view of prevention. Now, it seems clear to us that an act which should only prohibit selling, or keeping for sale, for a beverage, leaving everybody free to sell for all other purposes, would be less effectual for prevention than an act which should confine the right to sell to a few persons, selling under strict regulations, and prohibited everybody else altogether from selling; for, if all persons are permitted to sell for other purposes, we may be sure, from our experience of human nature, that many will use the permission as a blind, and will sell for a beverage under the guise of selling for other purposes, and it will be exceedingly difficult to prove the deception. This consideration has always had its influence in prohibitory legislation. The aim of such legislation has uniformly been to prevent selling for use as a beverage, and not to prevent it for other purposes, and yet, so far as we are informed, prohibitory laws have always been framed so as to allow only a few to sell for other purposes, and to prohibit everybody else from selling at all. For this reason alone, therefore, we might well decide that the act under which the defendant is complained of is not obnoxious to the objection interposed by him. We think it is not open to the objection for still another reason.

The defendant's argument rests upon the legal maxim, expressio unius est exclusio alterius, which, literally translated, signifies, the expression of one is the exclusion of the other. The maxim is often applied in construing written instruments, particularly grants, to narrow their scope to what is expressed in them, by the exclusion of what but for the expression would be implied. Thus, if a lot, with no access to it save over the grantor's land, be conveyed with the express grant of a particular way, any way which might otherwise be implied will be excluded. This is not the manner in which the defendant seeks to have the maxim applied. His aim is to raise rather than to rebut an implication. Indeed, the amendment is not a grant. The first clause is in effect a prohibition. It prohibits the manufacture and sale of intoxicating liquors for use as a beverage, and the defendant contends that it thereby impliedly licenses their manufacture and sale for other purposes. He seeks to reverse the maxim, and apply it as if it read, the exclusion of one is the expression of another, or the prohibition of one is the permission of another, instead of "the expression of one is the exclusion of another." Perhaps a prohibition to do a thing for one purpose may imply a permission to do it for other purposes, in some circumstances, but generally such an implication is not warranted by any usage of the language with which we are acquainted. We can see nothing in the first clause of the fifth amendment which warrants such an implication. The second clause is a command to the general assembly to provide by law for carrying the first clause into effect. Of course, if the general assembly had previously had no power to legislate on the subject, this command would confer by implication the power required for its own execution. But the general assembly had power, before the amendment, not only to...