State v. Parker Distilling Company

• Citation: 139 S.W. 453,236 Mo. 219
• Parties: THE STATE, Appellant, v. PARKER DISTILLING COMPANY
• Decision Date: 03 July 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 453

236 Mo. 219

THE STATE, Appellant, v. PARKER DISTILLING COMPANY

Supreme Court of Missouri

July 3, 1911

Appeal from St. Louis Court of Criminal Correction. -- Hon. Wilson A. Taylor, Judge.

Affirmed.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) The traffic in intoxicating liquors in the State of Missouri is declared by law to be illegal. It is not a primary, natural or fundamental right, but is an occupation which no one has the right to pursue without a license. State v Austin, 10 Mo. 591; State v. Hudson, 13 Mo.App 61; Higgins v. Talty, 157 Mo. 287; State v Bixman, 162 Mo. 21; Black on Intoxicating Liquors, secs 51, 127, 128, 189; Crowley v. Christensen, 137 U.S 86; State v. Finney, 178 Mo. 385. (2) All statutes regulating the manufacture and sale of intoxicating liquors are enacted by virtue of the police power of the State. Every statute, State or Federal, upon the subject which has been held constitutional, was sustained upon the ground that it was the proper exercise by the Legislature of the police power of the State. State ex rel. v. Hudson, 78 Mo. 302; License Cases, 12 Law Ed. 314; 8 Cyc. 683; State ex rel. v. Mercantile Co., 184 Mo. 184; State v. Addington, 12 Mo.App. 221; State v. Beattie, 16 Mo.App. 131; Cearfoss v. State, 44 Md. 403. (3) The act of the Legislature, approved June 1, 1909, providing licenses for those engaged in the business or occupation of manufacturing, rectifying or selling intoxicating liquors is presumed to be constitutional. The Legislature is presumed to have been as careful to observe the requirements of the constitution in enacting the law as the courts in applying it. State ex rel. v. Aloe, 152 Mo. 477; State v. Cantwell, 179 Mo. 261; State ex rel. v. Railroad, 48 Mo. 471; State ex rel. v. County, 144 Mo. 280; Ex parte Loving, 178 Mo. 203; County v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357. (4) The State has the power to prohibit or to regulate and impose conditions upon persons who desire to engage in the traffic of intoxicating liquors. In doing so, the State deals not with the individual, but with men in their relations to each other. State v. Bixman, 162 Mo. 37; Black on Intoxicating Liquors, secs. 31, 39, 46, 55, 107, 108, 109, 114, 115; State v. Austin, 10 Mo. 591; State v. Lemp, 16 Mo. 389; State v. Searcy, 20 Mo. 489; State v. Hudson, 78 Mo. 302; Higgins v. Talty, 157 Mo. 280; State v. Bixman, 162 Mo. 1. Where the Legislature has power to impose a license fee or license tax on an occupation, it has the added power to make it a penal offense for any person to engage in that occupation without first paying the license fee or license tax placed thereon. Black on Intoxicating Liquors, secs. 37, 58, 107; State v. Finney, 178 Mo. 31. (5) There is a wide difference between taxation and the licensing of a business or occupation. A business may be licensed and not be taxed, or it may be taxed and yet not licensed. There is no necessary connection between them. Black on Intoxicating Liquors, secs. 108, 127, 128; State v. Bixman, 16 Mo. 1; Higgins v. Talty, 157 Mo. 287. (6) The defendant seeks to apply to this, a license law, the rule which might apply to an act purely for revenue, that is, a law levying a tax upon the property. It leaves out of view the fact that the enactment under consideration is a law within the police power of the State and directed against a traffic which is itself illegal -- a traffic which is conducted not as a primary, natural or fundamental right, as is the case in the arteries of commerce, but is conducted under a special permit or license issued by the State in the exercise of its police power. Black on Intoxicating Liquors, sec. 55; State v. Bixman, 162 Mo. 1. (7) The act does not violate sec. 28, art. IV, Constitution of Missouri, as charged in the first specification that the bill contains more than one subject, and that the subject is not clearly expressed in the title. State v. Mead, 71 Mo. 286; State v. Bixman, 162 Mo. 19; State v. Bengsch, 170 Mo. 105; State v. Bockstruck, 136 Mo. 335; Statutory Crimes (2 Ed.), sec. 36a. (8) The act is not a revenue measure, and does not undertake to impose taxes on occupations, persons and property which are not uniform on the same class or classes of subjects, and does not violate sec. 3, art. 10, Constitution. (a) "A license is essentially a grant of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the licensee belonged. A common right is not the creature of a license law." 5 Words and Phrases, p. 4137; State v. Frame, 39 Ohio 413; Youngblood v. Sexton, 32 Mich. 406; State v. Hipp, 38 Ohio 199; Sonora v. Curtin, 137 Cal. 583; Cooley on Taxation, 596. (b) The Act of 1909, licensing manufacturers and rectifiers of intoxicating liquors and wholesale and retail dealers therein, etc., in a general way provides it shall be unlawful for any person, firm or corporation to manufacture, rectify, sell or expose to sale, intoxicating liquors of any kind in any quantity without a license from the State so to do. The act prescribes where and how the applications for such licenses shall be made and the statements to be contained therein. It is immaterial whether you call it by the name of a tax, a license, a fee, a license fee, a license tax or what not. State v. Bixman, 162 Mo. 26; Black on Intoxicating Liquors, sec. 107. (c) The fact that even a large revenue may follow is of no concern. If this were not so then the State would be powerless to regulate the illegal traffic or business. The Legislature would be required to nicely gauge its every act and see that in regulating these illegal businesses no revenue should follow. Higgins v. Talty, 157 Mo. 280; State v. Davis, 108 Mo. 670; Beer Co. v. Mass., 97 U.S. 25; State v. Hudson, 78 Mo. 302; Ex parte Tuttle, 91 Cal. 589; State v. Thompson, 160 Mo. 333; Patterson v. Donovan, 20 Nev. 75; Cooley on Const. Lim. (6 Ed.), 591; Cooley on Const. Lim. (3 Ed.), 727; L'Hote v. New Orleans, 177 U.S. 596; Crowley v. Christensen, 137 U.S. 86. (d) The defendant seems to rely upon the fact that the Supreme Court in the case of State v. Bengsch, 170 Mo. 81, held the Act of 1901, providing for a State tax on distilled liquors, and creating the office of special license commissioner was unconstitutional. The court did so by reason of the fact that the act was a revenue measure, a tax upon property, and therefore not uniform in its operation upon the same class of subjects in violation of sec. 3, art. 10 of the Constitution. Troll v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo. 1. (e) The defendant objects and says the Act of 1909 exempts from the operation of the law wines or spirits made from grapes or fruits grown in this State and exempts from its operation liquors sold by dramshop keepers. The dramshop keeper is licensed under another law and pays his license to sell drinks at retail. He belongs to a special class already provided for, and it is proper to exempt him here. That does not affect the uniform operation of the law upon each of the susceptible classes provided for in the act. The act applies to manufacturers, rectifiers, wholesalers and merchants, and graduates the charge or license fee then for the various classes arising under the law. State v. Bixman, 162 Mo. 30; Clark v. Titusville, 184 U.S. 330; Black on Intoxicating Liquors, secs. 109, 232. Uniformity on all members of a class suffices, and this is true even though the business or the class is one not engaged in the selling of liquor and under bane of the law, but engaged in the ordinary business affairs, private or public. State v. Cantwell, 179 Mo. 245; State v. Swagerty, 203 Mo. 517; Hume v. Railroad, 82 Mo. 231; Railroad v. Hume, 115 U.S. 522. The question as to exempting wines and liquors made from grapes grown in this State has been held against defendant's contention in State v. Stucker, 58 Iowa 496; McGuire v. State, 42 Ohio 530; State v. Bixman, 160 Mo. 1; Refining Co. v. Louisiana, 179 U.S. 89; Williams v. Fears, 179 U.S. 270; Cox v. Thompson, 202 U.S. 446. (f) But for argument, say the provision of the law of 1909, exempting wines or spirits made from grapes or fruits grown in this State, vilates the constitutional provision under consideration, still that would be of no consequence. The challenge in that particular does not and would not affect the law in a vital way. That exemption can be stricken from the act and the bill survive, and be as valid and good for the purposes for which enacted as though it remained in the bill. Tiernan v. Treasurer, 102 U.S. 123. The information filed against the defendant by the prosecuting attorney of the city of St. Louis, does not charge it with the manufacture and sale of wines or spirits made from grapes or fruits grown in this State. On the other hand the information charges it with manufacturing, rectifying and selling other intoxicating liquors not being wines or spirits made from grapes or fruits grown in this State, etc. The information removes the defendant from the exemption named in the act. It manufactures and sells liquors other than those made from grapes and fruits. The act does not discriminate as to any class. If discrimination, it is as to liquors from other States made from grapes and fruits. But that does not affect the equal operation on the same classes. Each is affected alike. Each can go to other States and buy other liquors, etc., and uniformity on the same classes still adheres. State v. Bixman, 162 Mo. 40; Black on Intoxicating Liquors, sec. 109. The law is well settled in this State that part of a statute may be declared unconstitutional and the residue declared constitutional and valid. ...