State v. Scampini
| Decision Date | 15 November 1904 |
| Citation | 59 A. 201,77 Vt. 92 |
| Parties | STATE v. SCAMPINI |
| Court | Vermont Supreme Court |
January Term, 1904.
INFORMATION for selling intoxicating liquor without a license in violation of No. 90, Acts 1902. Heard on general and special demurrer to the whole information, and to each count thereof, at the September Term, 1903, Washington County Stafford, J., presiding. Demurrers overruled, pro forma. The respondent excepted. The opinion fully states the case.
The pro forma judgment affirmed, and cause remanded.
J W. Gordon, R. A. Hoar, H. W. Scott and William Wishart for the respondent.
Present: ROWELL, C. J., TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.
The respondent is informed against by the state's attorney for the unlawful sale of intoxicating liquor. The information contains eight counts. A general and special demurrer is interposed to the whole information, and also to each count. The information is based upon section sixty-eight of No. 90, Acts 1902. The act was approved December 11, 1902. Therein it is provided,
It is contended that by the provisions of these sections there is such a delegation of legislative power as renders the act unconstitutional. But with this contention we cannot agree. In answer to inquiries by the Governor the judges of the Supreme Court expressed the opinion that sections 100, 101, 102, and 103 took effect from the passage of the act, December 11, 1902. Except certain sections which were governed by special provisions, the act was to take effect as provided in section one hundred. The time there specified is the first Tuesday of March, 1903, unless a majority of the ballots cast by the legal voters under the provisions of section one hundred and one should be No, in which event it is the first Monday in December, 1906. Hence the Legislature gave life to the act regardless of the votes of the people, and it took effect on the former date contingent only upon the fact that a majority of such votes should be in the negative in which case the time was postponed to the latter date. The law by its terms was to become operative in any contingency. It is unnecessary to look outside of our own State for authorities, for the same question has been decided by this Court. The act of 1852, entitled "An Act to Prevent Traffic in Intoxicating Liquors for the Purpose of Drinking, " contained a provision for the vote of the people to be taken in the same way and with like effect. In State v. Parker, 26 Vt. 357, it was urged that by reason of this provision the law was unconstitutional. But upon a careful review of the authorities and a full consideration of the case, it was held to be within that class of statutes where the time of taking effect is made to depend on a future contingent event, and therefore valid. We treat the decision in that case as determinative of the question now before us.
Nor was an allegation of the time when the act took effect necessary; for courts are bound to take notice of every public statute and the facts they recite or state. 1 Chit. Pl. 215; Richardson v. Fletcher, 74 Vt. 417, 52 A. 1064. This principle of law is none the less applicable where the time of a statute's becoming operative depends upon the result of a popular vote, to be declared together with the time when the act shall take effect by proclamation issued by the secretary of state as is provided in the law under consideration. Slymer v. State, 62 Md. 237; Jones v. State, 67 Md. 256.
By section 2 every town was required to vote at its town meeting held on the first Tuesday of March, 1903, and annually thereafter, whether licenses should be granted for the sale of intoxicating liquors therein, and if a town voted in favor of license, then, by section 3, the selectmen upon the application of six voters were required to call a special town meeting to determine the kind of license to be issued. By section 4, the licenses issued in such town shall conform to the vote cast and shall be in all respects subject to the provisions of the act. By section 7, when a town votes to issue licenses, the selectmen shall appoint a board of license commissioners consisting of three persons. "One member shall be appointed from each of the two leading political parties, and the third member may also be appointed from one of said parties."
Under the provisions of other sections of the act, this board, when duly organized, upon public hearing, may grant licenses to applicants therefor, pursuant to the vote of the town and within the provisions of the law; but it may at any time refuse to issue a license to an applicant whom it considers an unfit person to receive the same. The board of commissioners constitutes an important part of the machinery of the law, and when acting within its provisions, the power to issue licenses or to withhold them from any particular persons, rests exclusively with it.
It is contended that by reason of the provision in section 7. that "One member shall be appointed from each of the two leading political parties, and the third member may also be appointed from one of said parties," the act is unconstitutional. It is said that this is so because the Legislature cannot give preference to members of "leading political parties"; that it is class legislation; and that the Legislature cannot deprive a portion of the freemen of the State of the right to hold office. Here the respondent relies upon Article 8, Chapter 1, of the Declaration of Rights, which provides "that all elections ought to be free and without corruption, and that all freemen, having a sufficient, evident, common interest with, and attachment to the community, have a right to elect officers, and be elected into office, agreeably to the regulations made in this Constitution."
Whatever might be said upon this question in a case where it was properly involved, it is clear that the case before us does not legitimately present it.
By section 21 of the act in question, "No person shall furnish or sell or expose or keep for sale any intoxicating liquors except as authorized in this act." Excluding such sales as are, under subsequent provisions of this section, without the operation of the act, unless a town votes in favor of license under the provisions of section 2, or a license of the fifth class is issued to a retail druggist and apothecary by the selectmen under sections 25 and 31, the act is prohibitory. And if a person within the provisions of the act for any reason is not licensed, or if he has a license but sells, exposes, or keeps for sale intoxicating liquor except as therein authorized, he is guilty of a violation of the law regardless of whether the license commissioners, if any, have been appointed from "the two leading political parties" or otherwise. Bishop's Stat. Cr. § 1006; Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391; Erb v. State, 35 Ark. 631; Reese v. Atlanta, 63 Ga. 344. Hence the law requiring the board of commissioners to be constituted as specified in section 7, does not affect the rights of the respondent in this case, and he cannot be heard to complain. The constitutionality of an act cannot be contested by a party whose rights it does not affect and who therefore has no interest in defeating it. Cooley Const. Lim. (7 ed.) 232; Clark v. Kansas City, 176 U.S. 114, 44 L.Ed. 392.
It is urged however that if the provisions relating to a license are constitutional, the information should show that the city of Barre had voted in favor of license, had determined the kind of licenses, and that the selectmen had appointed license commissioners. But such allegations are not essential. It has already been seen that a license can afford the license protection only when he keeps within its scope and the law under which it was granted. And it is no defence to a seller without a license that the city or town did not vote license, nor that there were no commissioners to whom application for it...
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