Territory of Dakota ex rel. McMahon v. O'Connor
| Decision Date | 04 February 1889 |
| Citation | 41 N.W. 746,5 Dakota 397 |
| Parties | Territory ex rel. McMahon v. O'Connor, Deputy-Sheriff. |
| Court | North Dakota Supreme Court |
Habeas corpus.
Cyrus Wellington, M. W. Greene, and W. E. Dodge, for petitioner. C F. Templeton, Atty. Gen., C. B. Pratt, and W. R. Seeby, for respondent.
The petitioner, Patrick McMahon, was arrested upon complaint before a justice of the peace of Grand Forks county, charging him with selling intoxicating liquors in violation of chapter 70, Laws 1887-88, known as the "Local Option Law." The petitioner, having been bound over to await the action of the grand jury of that county, and declining to give bail was committed to the jail of said Grand Forks county, and he sues out of this court a writ of habeas corpus, directed to the defendant, O'Connor, as the person having him in custody, alleging that he is unlawfully restrained of his liberty, in that the statute upon which this offense is based is unconstitutional and void, and was never enacted by the legislative assembly of the territory. No question is raised as to the right and power of the court to determine these questions in this manner, and, as the proceeding is a friendly one, brought as a test case to determine at an early day, and in a speedy manner, the legality of this statute the court has not seen fit to examine into, and will not pass upon, questions other than those mooted at the argument.
The plaintiff in this proceeding seeks to attack the validity of chapter 70 of the laws of the legislative assembly, passed at the seventeenth session, 1887, entitled "An act to prohibit the sale of intoxicating liquors by local option." By the provisions of the act the board of county commissioners are required to submit to the qualified voters of any county, at any general election, the question of prohibiting the sale of intoxicating liquors whenever one-third of the voters of said county, as evidenced by the vote cast at the last preceding election, petition said board therefor; and if a majority of the votes cast at such election shall be "against the sale," it shall be unlawful for such board to issue or grant a license for the sale of intoxicating liquors in such county. Section 5 of this act provides: The petitioner contends--First. That the act is within the prohibition of the constitution of the United States, in that he is deprived of his property without due process of law. Second. That the act is in violation of the organic law of the territory and the statutes of the United States, (a) in that it conflicts with the revenue laws of the United States granting licenses to sell intoxicating liquors; (b) in that it conflicts with the section of the Revised Statutes of the United States which prohibits the legislature from enacting any law "impairing the rights of private property;" [1] (c) in that it conflicts with the statute of the United States prohibiting local or special legislation; (d) in that it conflicts with the statute of the United States by delegating the legislative power conferred upon the legislative assembly. Third. That the law is inoperative, and cannot be enforced, for the reason that no penalties or punishments are prescribed for its infraction or disobedience. Fourth. That the act was never passed by the legislative assembly, and never became a law of the territory.
We will consider these objections in the order presented.
It was contended at the argument that this statute was within the prohibition of the first section of the fourteenth amendment to the constitution, which provides that no state "shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It need only be stated, what has been so often decided, that the first amendments of the constitution were limitations upon the government of the United States, and upon the powers granted by the constitution to the national government. But the fourteenth amendment was intended to be, as its language plainly expresses, a limitation upon the states in their sovereign capacity. This section can therefore be of little aid in determining the powers of the territorial legislature. The territory has no powers, legislative, executive, or judicial, except such as are conferred upon it by act of congress. It can have over a given subject no greater powers than congress itself has, and such powers may be as limited as congress may determine. It has no powers in fact except such as are expressly, or by fair implication, conferred by congress itself. The sovereignty of the territory, so called, comes from congress, not the people. If congress have not the power under the constitution, it can can confer none upon the territory. As has been aptly stated, the territory is "an outlying province of the national government," subject to its direct control through congressional legislation, or its indirect control through congressional supervision of territorial legislation. That this national sovereignty over the territories exists has never been denied. Upon what particular section of the national constitution such grant of power is based, the decisions of the court are not harmonious, but, whether it comes from the power granted "to make all needful rules and regulations respecting the territory," etc., or from whatever clause of that instrument the power is derived, it is sufficient that the power undoubtedly exists; and it must follow that the legislative power of the territory is limited, not only by the powers of congress granted by the constitution itself, but it must be confined to the powers also expressly or by necessary inference conferred by statute of congress upon the legislative assembly. Governed by this rule, and examining the powers conferred upon congress by the constitution and the limitation upon such powers prescribed by the earlier amendments, we find nearly the same language contained in the fifth amendment as that relied upon at the argument and contained in the fourteenth amendment, to-wit, that "no person shall be deprived of life, liberty, or property without due process of law." Is this law open to the objection that this defendant is deprived of his liberty "without due process of law?" Without stopping to discuss the phrase "due process of law," upon which so much learning has been expended by the courts, whose reasoning may be read with great interest and profit, it is sufficient here to say that the same clause, in substance, will be found in the bill of rights of every, or nearly every, state of this Union in which the constitutionality of this and similar local option laws has been sustained. To say by this court that this law is in conflict with such provision of the constitution is to say that the decisions of those states which deny the position taken by counsel here are wrong, and should be overruled, and that congress itself has no power to enact such a law; for if congress has attempted to grant to the legislature of Dakota a power it could not grant, or if this limitation prohibits the exercise of such power so granted by congress, it is because it has not such power itself, or, by such limitation, is restrained from the exercise of such power. The power to make laws regulating or prohibiting the sale of intoxicating liquors is undoubtedly within the police powers of the state or nation. Whatever doubt may once have existed, it is now too late to urge that these provisions of limitation in the constitution have reference to or affect the police powers of the state or nation. Cooley, Const. Lim. 720, authorities cited: Com. v. Kendall, 12 Cush. 414, Com. v. Clapp, 5 Gray, 97; Santo v. State, 2 Iowa, 202; State v. Wheeler, 25 Conn. 290; People v. Hawley, 3 Mich. 330; Jones v. People. 14 Ill. 196; State v. Prescott, 27 Vt. 194. It was questioned after the adoption of the fourteenth amendment whether its broad language was not intended to prevent the states from seeking refuge under its police powers to arbitrarily prohibit and restrain the exercise of various trades and employments as matters of municipal concern; and in Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, a case which went up from San Francisco, Cal., it was claimed that under this amendment the municipality had no power to prohibit the complainant from carrying on his business of a public laundry, in a certain portion of the city, between the hours of 10 at night and 6 in the morning, and from employing persons about the premises having infectious or contagious diseases, upon the ground both that the ordinance was a discrimination as between citizens of the same municipality, and that it deprived the petitioner of the right to labor and acquire property. The supreme court, in denying both these propositions, takes occasion to say: "But neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add...
To continue reading
Request your trial