State v. Searcy

• Decision Date: 31 March 1855
• Citation: 20 Mo. 489
• Parties: THE STATE, Plaintiff in Error, v. SEARCY, Defendant in Error.
• Court: Missouri Supreme Court

20 Mo. 489

THE STATE, Plaintiff in Error,

v.SEARCY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1855.

1. The law prohibiting the sale of liquor (R. C. 1845,) without a license is constitutional.

Error to Monroe Circuit Court.

The case is stated in the opinion. Written arguments on behalf of the State were filed by Mr. Carr and Mr. Clover. There was no appearance for the defendant.

RYLAND, Judge, delivered the opinion of the court.

At the June term, 1854, of the Circuit Court within and for Monroe county, the grand jury indicted the defendant, Searcy, for selling intoxicating liquors in quantities less than one quart, without a license. This indictment was found upon a violation of the act of 1845, entitled “An act to regulate groceries and dram-shops,” approved March 25, 1845.

The defendant appeared and moved the court to quash the indictment, assigning for reason, that the first and third sections of the said act were repugnant to the constitution of the State. This motion was sustained, and the defendant discharged. The State duly excepted to the decision of the court, and brings the case here by writ of error.

The only question before us is that involving the constitutionality of this statute. The first and third sections are as follows: Sec. 1. “No person shall directly or indirectly sell intoxicating liquors without taking out a license as a grocer or dram-shop keeper.”

Sec. 3. “No grocer shall, directly or indirectly, sell intoxicating liquors in any quantity less than a quart, nor shall he permit any intoxicating liquors sold by him to be drank at his grocery, or at any place under his control.”

Sec. 4. “A dram-shop keeper is a person permitted by law, being licensed according to the provisions of this act, to sell intoxicating liquors in any quantity less than a quart.” This last section has been repealed by an act passed in 1849, approved March 12, by which last act a dram-shop keeper is permitted to sell intoxicating liquors in any quantity less than ten gallons at any one time.

The 19th section of the act of 1845 fixes a penalty for the violation of the provisions of the act at not less than twenty nor more than one hundred dollars.

There is no provision of the constitution of the State of Missouri which denies to the legislature the power of enacting this statute. This statute is nothing more than an assertion in part of what is called or known familiarly as the police power of a State; a power to preserve the peace, promote good morals, restrain vice, and protect the property and health of the people. That the several State governments have exercised these and kindred powers to the very amplest extent, from the earliest period of their existence, is matter of history.

A similar statute in New York has been held not to conflict with the constitution of the United States. (See Ingersoll v. Skinner, 1 Denio, 540.)

In the case of Commonwealth v. Kimball, (24 Pick. 359,) the Supreme Court of Massachusetts held that the statute requiring a person to be first licensed as a retailer of spirits, before he could presume to sell in a less quantity than twenty-eight gallons, was not repugnant to the constitution of the United States. Chief Justice Shaw says, in delivering the opinion of the court in this case: “The power to pass laws for regulating licensed houses, as one of the powers of general police, is clearly vested in the state, and is as clearly not vested in the general government. But in carrying into effect a law flowing from one of the acknowledged powers of a state, they may resort to means, which, in their operation, would oppose or impede a law of the United States, made in pursuance of its acknowledged powers. In such case, the law of the state must yield, so far as it can have this effect. But such conflict is not to be presumed, but, on the contrary, it must be clearly shown and established. In the present case, it is not shown, nor can we presume that the law regulating the sale of spiritnous liquors by retail, and confining the power to sell in that form to those who shall first have obtained the recommendation of the proper officers for that employment, will frustrate, defeat or impede any law of the...