Territory v. Guyot

• Decision Date: 03 August 1889
• Citation: 9 Mont. 46
• Parties: TERRITORY v. GUYOT.
• Court: Montana Supreme Court

9 Mont. 46

TERRITORY

v.GUYOT.

Supreme Court of the Territory of Montana.

Aug. 3, 1889.

Appeal from district court, Silver Bow county.

Joseph Guyot was indicted for selling whisky “to a certain Indian.” The question as to the constitutionality of the statute under which the defendant was indicted having been raised, the district court upheld its validity. The defendant appeals.

McBride & Haldorn, for appellant.

The Attorney General, for the Territory.

BLAKE, C. J.

The appellant has been convicted of the crime of selling whisky at the county of Silver Bow in this territory “to a certain Indian,” contrary to the form of the following statute: “If any person shall, directly or indirectly, sell, barter, or give intoxicating liquor, whether fermented, vinous, or spirituous, or any decoction or composition of which fermented, vinous, or spirituous liquor is a part, to any Indian or half–breed Indian in this territory, he shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished.” Comp. St. div. 4, § 160. The sole question before us involves the constitutionality of this act. The counsel for the appellant and the attorney general concur in the view that the legislative assembly has no power to control this subject. The same issue was raised in the court below, where the validity of the statute was upheld. This assent of counsel would be decisive in ordinary actions, but we cannot permit any law to be adjudged null and void, or a provision of the constitution to be interpreted, without an investigation. The constitution provides that “the congress shall have power *** to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Article 1, § 8, subd. 3. In pursuance thereof a statute was passed in 1832, which has been amended from time to time, and is now comprised in the following section: “No ardent spirits shall be introduced under any pretense into the Indian country. Every person (except an Indian in the Indian country) who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent, or introduces, or attempts to introduce, any spirituous liquor or wine into the Indian country, shall be punishable.” Rev. St. U. S. § 2139. It is contended that the sale mentioned in the indictment was commerce “with the Indian tribes,” within the meaning of the words of the constitution, and that the power of congress is exclusive over the subject. The following cases are cited in support of the position which has been stated: U. S. v. Holliday, 3 Wall. 407;U. S. v. Cisna, 1 McLean, 254;U. S. v. Burdick, 1 Dak. 142;U. S. v. Shaw–Mux, 2 Sawy. 364;Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091,Robbins v. Shelby Co., 120 U. S. 489, 7 Sup. Ct. Rep. 592;Bowman v. Railroad Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062;U. S. v. Earl, 9 Sawy. 79, 17 Fed. Rep. 75.

The authorities establish certain principles, which are concisely announced in Robins v. Shelby Co., supra, by Mr. Justice BRADLEY: “The constitution of the United States having given to congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subject of it are national in their character, or admit only of one uniform system or plan of regulation. *** Where the power of congress to regulate is exclusive, the failure of congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. *** The only way in which commerce between the states can be legitimately effected by state laws is when, by virtue of the police power, and its jurisdiction over persons and property within its limits, a state provides for the security of the lives, limbs, health, and comfort of persons, and the protection of property; *** the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community.” We concede that these principles are applicable to laws which regulate commerce “with the Indian tribes,” and we must declare this statute of the territory unconstitutional if it is legislation of this nature, and not subject to any conditions. While the indictment alleges that the whisky was sold to “a certain Indian,” the testimony proves that he belonged to the tribe living upon the Flathead reservation, and in charge of Mr. Ronan as agent. These facts bring the case within the purview of the foregoing statutes of the territory and United States. The cases of U. S. v. Holliday, supra; U. S. v. Cisna, supra; U. S. v. Burdick, supra; U. S. v. Shaw–Mux, supra; and U. S. v. Earl, supra,—sustain the jurisdiction of the courts of the United States in trying and punishing persons who violate the laws of congress prohibiting the sales of intoxicating liquors to Indians, and maintain the power of congress to enact statutes governing the subject under the clause of the constitution regulating commerce with the Indian tribes. These doctrines are not questioned by this court, and do not decide that a state or territory has no right to pass laws making definite acts of its citizens in selling intoxicating liquors to Indians crimes, and prescribing penalties for their infraction.

It will be instructive to consider the exceptions in Robbins v. Shelby Co., supra, which are embraced within the police power of the states, and particularly the restrictions upon the traffic in...