State v. Kibling
| Decision Date | 26 March 1891 |
| Citation | 22 A. 613,63 Vt. 636 |
| Parties | STATE v. GEORGE F. KIBLING |
| Court | Vermont Supreme Court |
FEBRUARY TERM, 1891
Judgment that the respondent takes nothing by his exceptions.
Norman Paul, for the respondent.
1. The counsel for the respondent contends that there was error in admitting testimony tending to show any offences committed prior to Nov. 26, 1890, when the Legislature re-enacted the law regulating the manufacture and sale of intoxicating liquors, and in convicting the respondent for any offences committed prior to that date. He bases this contention upon the claim that under the decision of Leisy et al. v. Hardin, 135 U.S. 100, the statutes of the State relating to this subject were unconstitutional and void. He does not contend that there was any evidence in the case tending to show that any of the liquor sold by the respondent, for which convictions were had, came from without the State to the respondent, or was still in, and sold by him, in the original packages, if it did come to him from without the State, so that it was within the interstate commerce provision of the Constitution of the United States. But he contends that the statute of the State prohibiting the sale of intoxicating liquors is indivisible; that there are no separate or distinct sections or clauses, independent of each other, so that one part can be sustained and the other excluded, but all of its provisions are connected in subject matter, depending on each other and operating together for the same purpose; that the framers of the law had but one object in view, that of suppressing the liquor traffic; that they have placed all liquors whether brought into the State in original packages or not on one common ground. It must be conceded that this contention is true so far as this law relates to liquors which would fall within the interstate commerce provision of the Constitution of the United States. Until the announcement of the decision in Leisey et al. v. Hardin, it had been quite generally supposed that that clause of the Federal Constitution did not prohibit the exercise of police powers by a state. But under this decision, before the passage of the Wilson bill so-called, by Congress, the statutes of the state on this subject were unconstitutional, when applied to sales of intoxicating liquors within the scope of that decision. They were also constitutional in all other respects, and when applied to all other sales of intoxicating liquors made in violation of its provisions in this state. The evidence brought all the offences by the respondent within the constitutional operation of the law. The case, on its facts does not involve the question of unconstitutionality, within the decision of Leisey et al. v. Hardin. The law, untouched by that decision, applies without doubt or difficulty, to every offence found against the respondent. When such is the case the law is not wholly unconstitutional, but only so when the facts of the case bring it within the operation of the Federal Constitutional inhibition. There is no objection to its enforcement whenever in its application it is constitutional. The authorities cited by the respondent's counsel clearly mark this distinction. In Bank of Hamilton v. Dudley, 27 U.S. 492, Marshall, Ch. J., says: "If any part of the act be unconstitutional, the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the constitution." Says Miller, J., in Eilenbecker v. District Court of Plymouth, Iowa, 134 U.S. 31 (33 L.Ed. 801) "It is the well settled doctrine of this court that a part of a statute may be void, and the remainder may be valid."
Hardin, J., in Garrard Co. Ct. v. Navigation Co., 10 Am. L. Reg. 160, expresses the same idea in this language:
"But while it is a rule of law that if a statute attempts to accomplish two or more objects, and is void as to one, it may still be valid as to the others; yet if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion." Under Leisey et al. v. Hardin, the statute, in terms, covered sales that might fall within the inhibition of the interstate commerce clause of the Constitution of the United States. It also covered a much larger class of offences, to which this inhibition did not apply. It could be fully operative to this latter class of offences; and it was so framed that its provisions were applicable. On the underlying principle of the decisions cited, it was not void when invoked against this class of offences. Hence this contention cannot be sustained. The facts of the case do not involve the consideration of the constitutionality of this law, when in conflict with the interstate commerce provision of the constitution of the United States, and it is so framed as to be applicable and operative against the class of offences charged and proved against the respondent.
State v. Wade, heard at the last general term, involved the same question, and the decision therein covers the point here decided. Bowman v. Railway Co., 125 U.S. 465; Mugler v. Kansas, 123 U.S. 623; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Foster v. Kansas, 112 U.S. 201.
2. The re-enactment of this law by the Legislature at its session in 1890 was a precautionary measure, rendered necessary, if necessary at all, by the decision in Leisey et al. v Hardin, and was passed to make it sure that it was applicable and operative, under the Wilson bill, to that class of offences in regard to which that decision might render it void. It did not change or modify any of the provisions of the law. It simply declared that the law was re-enacted and to remain in force, as to the offences found against the respondent the same...
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