OCR Interpretation

The herald and news. (Newberry S.C.) 1903-1937, February 04, 1916, Image 2

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One Gallon a I
Constitutionality of
General Peeples and
eral Dominick in th(
haustive Review <
of All the Stai
Bearing <
morals, or safety of the pi
for it only transfers the pos
The fact is that the harm c
sale, but in the consumptio
people of Idaho, acting thr
eradicate, and since 'it will
that, if the citizcn may be
his possession, he can be pre
necessity, no one can drint
session.' and since ?*reat di
forcing the prohibitory law:
jurist in the case of Mugh
manufacture of intoxicatin
as a beverage, might well b
which would make it real:
" 'And so, if in the judg
sion of intoxicating liquors
if it did not defeat the eff(
the evils attending the exce<
the Courts, upon their viev
the community, to disrega
that question.'
"We have reached the
contravention of Section i
the Constitution of the Uni
of the Constitution of Idah
lature with a view to the
public morals, and the publ
stantial relation to those <
reasonable exercise of the p
Counsel for appellant ii
hearing- contended that un
exists in the United States,
of the adult citizen not un<
government, and that certa:
Virginia amendatory statul
in violation of the fundarru
and Federal Constitutions;
contention against the statul
a ?
i~\unjug uuiti ov^m
they cited State z\ Gilman,
the decision of the highest
prescribed a rule of constr
&iate which should be adop
The Gilman case was de
stitution of 1912 in the f
passed, regulating or prohib
- - - - - i* .? /-?*
within the limits ol this M
decision was a correct cor
Constitution, it must be noi
ive July 1st, 1914, entirely
in West Virginia in respect
In State v. Si.ro, 2895,
Appeals of West Virginia
ported), the Court took occ
say of. the case of State v.
? ?? ? -j * J.
proposition tnar a stature o
tional and void "under the
further, used the following.
"Since the case of State
tution of the State has be
amended prohibits the ma:
malt, vinous and spirituous
islature to 1 enact such lazvs
rities, and penalties as math
e provision of this section
ive July i, 1914. It is th<
such laws as may be necess;
of the Constitution as amei
to this provision of the G
require liquors brought im
place to another within the
Ion or more, to be 7narked
is a wise policy is not for
Legislature has not e.rcced
interfere. The Courts may
latnre had the power to es
can not prescribe the policy,
zvould be to subordinate t
? _ r , 7 _ _ yy
opinion oj inc c ouris.
The Court then cited tli
Co. z\ Lynch, 226 U. S. 15
with a recognized evil whict
measures having- reasonable
inhibited transaction separat
The Court therefore took a
Constitution of West Yirg
in the Oilman case of the C
Furthermore, in State v.
Virginia Court, November
vision against advertising
valid under the amended C
that Section 8 of the Yosi
"privileges or immunities"
ment to the United States C
It must be evident, thei
Month Law
yre Supreme Court
Law Argued by Attorney
Assistant Attorney Gen2
Supreme Court?An Exit
the Prohibition Law
tes and Cities Cases
on the Subject.
From Last Issue.)
ibh\.' the sale is equally harmless;
;session from one person to another,
onsists neither in the possession nor
n of it. That is the evil which the
ough the Legislature, are trying to
not require any elucidation to show
' prohibited from having liquor in
jhibited from drinking it, because of
: that which he has not in his posfikultv
has been encountered in en5,
the statement made by the learned
cr v. Kansas, supra, relative to the
g liquors for the maker's own use,
e said with respect to its possession,
jnent of the Legislature, the posses*
* * would tend to cripple,
)rt to guard the community against
>sive use of such liquors, it is not for
ys as to what is best and safest for
rd the legislative determination of
conclusion that this Act is not in
of the Fourteenth Amendment to
nr*r of Sfrfinn T"2. Art. 1
io; that it was passed by the Legisprotection
of the public health, the
ic safety; that it has a real and subobjects;
and that it is, therefore a
olice power of the State.''
i their reply brief upon the former
der constitutional government as it
the regulation of the personal habits
der a disability is not a function of
in regulations proposed by the West
te, approved February 5, 1915, arc
intal law as set forth in both iState
they will no doubt make the same
:e of May 24th, 1915.
e of which we have already noticed,
33 W. Va. 146, and contended that
Court of West Virginia in said case
uction for the Constitution of that
)ted here.
cided under a provision of the Con'ollo
wing words: "Laws shall be
iting the sale of intoxicating liquors
:ate." Without conceding that the
istruction of that provision of the
at said that the Amendment, effect
changed the constitutional.situation
to the subject matter in hand,
decided by the Supreme Court of
November 30th, 1915 (not yet reasion
to refer to this change and to
Gilmm, that it is authority for the
f the kind involved was unconstitu'
Constitution then in forceand
v. Gihnan was decided, the Constien
amended. The Constitution as
nufacture and keeping for sale of
liquors, etc., and requires the Leg,
with regulations, conditions, secu1'
be necessary to carry into effect
i.' This amendment became cffecti
duty of the Legislature to enact
ary to n. ' e effective this provision
tided. The Legislature, responsive
Dnstitution, has deemed it wise to
to the State, or carried from one
State, in quantities of one-half galor
labeled. Whether or not this
the Courts to determine. Jf the
ed its pozvers, the Courts can not
' decide zvhether or not the Legistablish
these regulations, but they
if within the legislative limits; this
he will of the Legislature to the
. !
ie case of Purity Extract & Tonic j
2, holding- that a State, in dealing
1 it is free to suppress, might adopt
relation to that end, although the j
:ely considered might be innocuous. |
much broader view of the present
inia than was taken by the Court
onstitution of T912.
. Davis, 2864, decided by the West
30th, 1915, it was held that a proliquors,
under the Yost Act, was
Constitution of West Virginia and
c Act of 1913 did not violate the
clause of the Fourteenth Amendronstitution.
-efore, that the Gil man case is no
longer to be deemed an author:
broader Held for legislative actior
tained in the W est Virginia I
doubt it was bcausc of the narro
ginia Court in the Gil man ease
framed flint the Legislature, w
I "to enact such laws, with reg
| and penalties, as may be necessa
! vision of the section."
i As to the decision in the Gihti
| was offensive to the Fourteent
i Constitution, we must say that
Court was too narrow and henc
subsequent decisions of the Supr
j which will be followed here.
Nezi' Vnrk v. Hcstcrbcrg, 21
Patsonc v. Pcnn., 232 V. S
Purity Ex. & T. Co. v. Lyn
Hugler v. Kansas, 123 U. S
It thus appears that three ca
in litigation of this character,
appellant's counsel in their for
explained and limited by the C<
that appellant's counsel can nc
sistaince as authorities: since
cause: that is to say. Ridge v. (
S has been superseded by Southa
| So. Rep. 652; State JVilliau,
! nlainprl. limited mid sunerseded
Co. (N. C). decided December
33 W. Ya. T46, lias been explai
the cases of State v. Si.vo and
We need only refer to the K
bell. 133 Ky. 50, 24 L. R. A. 1
from that State but follow the 1
case shows very plainly that
! the construction which the Co
placed upon certain sections of
Court saying expressly, it coul
of the Constitution intended to
lature the power to regulate th
with that department of the !.
power of prohibiting the posses
The Court further said that
Constitution, containing u bill c
Court set forth, the guarantie:
empty sound, if the Legislatur
right to own or drink liquor wh
the laws of decency by being in
the Court seeming to be that a
enjoy the inalienable rights dec
he were permitted freely to bee
to there consume intoxicating
The decision of the Kentuck
visions of the State Constitutic
row view of the police power
unsafe guide to this Court in c
tion of West Virginia establish
that State, and conferring upoi
pass all laws necessary to make
The further general remarl
the rights of man in his natural
over the individual, are clearb
declared by this Court in the ca<
ley v. Christensen, Purity Exti
Holden v. Hardy, which have s
The Kentucky Court in the
a potent force of the Constitut
was composed of those engaged
ing and selling liquors. It coi
Virginia Prohibitory Amendme
persons engaged in the liquor tr
nnnrvcprl tn trsffir' ^nrl Vif>n1
kllV, VI U4A1V UiiVl WViil
West Virginia; the Amendmen
| ture ample power to enact all
the desired end.
The case of Ex parte Wilson
I UTAO 4- ^ frv1lAit?n/l 1 n f
151 Pac. 1006; we deem it prof
the decision.
The case was decided Decern
sage of the Webb-Kenyon Act.
The agreed facts were that
had been engaged in the livery
! foe had there in his possession c
of liquor shipped to him from F
use, in excess of the quantity f
citizen of Oklahoma by the stat
p Under these facts, it is tru
properly convicted, for the reasc
of the opinion based upon the cai
I/O U. S. 438, which held, undei
1 had the right to import liquor
| delivered to him, and to keep ii
was conclusive of the case and
sider the statute of Oklahoma
police power under the (Mate Cc
Fourteenth Amendment to the 1
Tti cfor 5c tlir> rVviirf lipid
interstate commerce) that the s
Fourteenth Amendment, and to
State Constitution, providing th;
of life, liberty or property wit]
decision was out of accord with
the numerous authorities cited i
The opinion is composed n
which we have reviewed, and i
largely influenced by the case (
itv here, in view of the much !
i under the grant of power conProhibitory
Amendment. No'
w view taken by the West Yir- j
that the amendment was so |
ithout delay, was commanded J
illations, conditions, securities, I
iry to carry into effect the pro- j
i it.- \ 1
Ull LHSC UIclL II1C ill IJllCMlVll
;h Amendment of the Federal !
the view of the West Virginia
e entirely out of harmony with
erne Court of the United States,
i u. S.31.
226 U. S. 192.
; ?23.
ses which liave been often cited
and which were relied on bv
mer reply brief, have been so
)urts in which said cases arose,
> longer call them to their asthe
former submission of this
:iiy of Bessemer, 164 Ala, 599,
11 Ex. Co. v. Whittle (Ala.) 69
I < T a(\ \T ( " llOC KflOtl 0"V_
to, i _|A t . V^. V/ iUj ilci." UV.V11 v.-\
by the case of Glenn v. So. Ex.
1st, 1915 ; and State v. Gihnan,
ned, limited and superseded by
State i'. Daris, 2895 and 2864,
Kentucky case of Com. v. Camp
[iNS) 172, since the later cases
earlier decision. The Campbell
it was controlled primarily by
urt of Appeals of Kentucky
the Kentucky Constitution, the
id not believe that the framers
carefully take from the Legise
sale of liquors, and yet leave
State Government, the greater
;sion or ownership of liquor.
: since the adoption of the then
nnrVifc in larirrnofrA wViirti +1ia
ii. i.w~
s to the citizen would be only
e could prohibit the citizen the
en in so doing he did not offend
\toxicated in public, the view of
citizen of Kentucky could not
lared by the Constitution unless
:onie intoxicated in private and
liquors in unlimited quantities.
:y Court, thus resting upon pro>n
and upon an extremely nar
of the State, would be a very
onstruing the present Constituting
State-wide Prohibition for
1 the Legislature full power to
: the State's policy effective.
<s in the Kentucky case about
[ state, and the rights of society
r antagonistic to the principles
;es of Muzlcr v. Kansas, Crozu
'act & Tonic Co. v Lynch and
ill been cited and considered.
Campbell case also noted-that
:ional Convention of Kentucky
in the business of manufactured
not be said that the West
:nt was inspired or adopted by
affic, but rather by those totally
t upon its utter destruction in
t conferring upon the Legisla-1
laws necessary to accomplish
, 6 Okl. Cr. 451, 119 Pac. 596,
he Idaho case, Ex parte Crane,
>er, however, to briefly refer to
ber 18th. iqii, prior to the pas
the defendant for a long time
business in Ardmore, and that
n the dates alleged, a quantity
ort Worth, Texas, for his own
>ermitted to be possessed by a
ute under consideration by the
e that the defendant was im
)ns stated in the last paragraph
se of Vance v. Vandcrcook Co.,
r the Wilson Act, that a citizen
from another State, to have it
t for his own. use. This point
there was no occasion to conas
brought to the test of the
institution, or to the test of the
Federal Constitution.
generally (without regard to
tatute was offensive to the
Section 7 of Article 2 of. the
it "no person shall be deprived
bout due process of law," the
the principles referred to and
n this brief.
nostly of extracts from cases
t is easy to see the Court was
)f Bidge v. City of Bessemer,[
164 Ala 599, and the eases thereir
v. Williams, 146 X. C. 618, which ;
applicable and to have been misunt
In adopting" the view, furtherm
the ()klahoma Court failed to tak
tween the status of Kentucky anc
was a .state-wide 1'roinDition >tati
under statnates as well; whereas tl
as construed by the Court of Ap
no power in the hands of the Lei
! of liquors.
Under the doctrine declared ii
! 19-. and in XIuglcr v. Kansas, I.
Legislature clearly had the power
tion as a means of enforcing- the
! and it was valid except in so far
j interstate shipment, and since t
! "commerce clause" no longer pre
In view of the decisions of the
: States, and ui later decisions in c
! homa C ourt mainly found the aut
| \vc confidently expcct, especially si
Kenyon Law, that the Court will r
case of Ex parte Wilson, supra, i
forded it to more fully consider tl'
The statement above plainly i
of the terms of the Webb-Kenyor
erence to the evil which the Act
"history of the Act shows this to
\ r* L r\o o 1 r\ * n .V* 1 c? 1
ociidLUi lvnuA oaiu in mo J
ence to legislation concerning intei
"Congressional expression in
be an expression upon a subjec
nothing to do, and upon it all
would arise."
As the Honorable A. Y. Web
North Carolina, said in the Hous
ruary 8th, 1913, in the debate upc
ii? c\t i.1. _ ?l.i_
ii ine oiaies nave mc iigm,
the personal use or receipt of liquo
to take that right away from the 5
the State has no power under its
stitution of the United States to o
the personal use of liquor, then tl
right, because the iState can never
Page 2807, Vol. 49, Congressionz
Furthermore, the record show
bama offered an amendment, ma
shipments for personal use, and 1
by the following vote: Yeas 55,
Mr. Bartlett of Georgia propos
"Provided, however, that noth
or construed to render illegal or
interstate shipment of liquors heri
Territory or District to any one
This was defeated by the folL
r- / t~* ?_ \
1107-?i rages zooo-u/.;
Thereupon the House voted dc
by Mr. Davis of West Virginia, a
"But nothing in this Act con
forbid the shipment or transportat
malted, fermented, or other intoxi
tended, for sacramental purposes o
sumption of the owner or consigi
Thereupon the bill passed the
(p. 2867.)
This record should remove all
intent of Congress in enacting th
deed any possible -doubt could ar
the prohibition of the Act should e:
for personal use, if any State s(
wishes in a valid statute, falling w
We will not extend this brief
| several cases cited by and relied uj
Palmer v. Express Co. (Tenn.
Van Winkle v. Dclazvare, 91 1
Exp arte Pecde (Tex.), 170 S.
Southern Express Co., v. Sta
188 Ala.454.
Southern Ex. Co. v. City of H
%J I
Bristol Dist. Co. v. So. Ex. Cc
ginia, decided January 12,
In those cases the shipments 1
were held not to be within the tern
for the simple reason that there v
the several States at that time,
such character of shipments.
v hv i~> c c Cn C\ <
J. 11 I Ui//i't A U JL~* j' f t' o o v v . ^ jl
was no limitation by the statute u
number of shipments that might 1
though single shipments were for
Ion; and the Court held that the r
shipment was simply one of inters
Mississippi Court sustained a simi
press Co. v. Beer (Miss.), 56 iS<
1 *J_* 1 T>
Detween tnc -Mississippi aim j em
sequence here, as the two West V
framed on entirely different lines.
Furthermore, in Palmer v. Exp
Ttfc iro1ir1if\r rvf tVi#? "WpKh-TCe
U11V_ vcwavaacj- v*. ? i held
inapplicable, because the shi
and there was no State law againt
What the Tennessee Court would
(Continued on Pagi
) cited, among" others. State ]
ippear now not to have been i
lore, of the Kentucky Court.
r.f flic, t] 1 -fTprpnpf I
Vw U1 Cll* VllllV* V??VV - i
1 Oklahoma, since the latter [
L* under the Constitution and [
le Constitution of Kentucky, |
peals of that State, had left j
^islature to regulate the sale *
n the Lynch case, 226 U. S.
23 U. S. 623, the Oklahoma j
to enact the statute in ques- I
State-wide Prohibition law;
as it might be applied to an
he Webb-Kenyon Law the
vents its complete operation. ,
Supreme Court of the United |
>ther .'States where the Okla
horities upon which it relied,
nee the passage of the Webbecede
from its decision in the
f another opportunity be afie
questions involved.
"oilows from an examination
i Act itself, construed in refvas
intended to relieve. The
be true.
-eport to the Senate in referrstate
commerce in liquors:
favor of personal use would
t with which Congress has
sorts of confusing questions
d, member of Congress from
e of Representatives on Feb>n
the'Webb-Kenyon Act:
in the first place, to prohibit
r, this Congress has no power
On the other hand, if
own constitution or the Conieprive
a man of the right of
lis law is harmless as to such
take that right from him."?
il Record.
s that Mr. Blackmon of Alaking
the Act inapplicable to
the amendment was defeated
i\'oes 149. (p. 2SO5.)
ed the following amendment:
ling in this Act shall be helq
subject to iState control, the
ein defined, into any State or
: for his personal or family
owing vote: Yeas 65, Noes
)wn the amendment proposed
s follows:
tained shall be construed to
ion of any spirituous, vinous, j
eating liquor of any kind, inr
for the personal use or conlee
House: Y.eas 239, Noes 64.
doubt as to the purpose and
e Webb-Kienyon Law, if inise.
Congress intended that
xclude from the State liquors
3 willed, and manifested its
'ithin the terms of the Act.
by any detailed analysis of
pon by appellant's counsel:
), i6s S. W. 236.
Vtl. 385- '
w -749te
(Ala.), 66 iSo. Rep. 115,
igh Point (N. C.), 83 S. E.
>. (Court of Appeals of Vir19150
which were for personal use<
is of the Webb-Kenyon Act,
/as no existing State law in
which would be violated by
>rm ^ tf\C ^ W oif\ thprp
^J " > *
consideration upon the
be obtained by a citizen, albidden
ir* excess of one gal egulation
as to the size of a
4-^ 4-s -v* o *- r? ?% ^ 1 f-Vl /"Mf rr1-? -fVl/r*
Let Li. cuii.iin.1*.^, aii'?uugu
lar statute, in American Ex).
Rep 575. The difference
uessee Courts if of no con
7irsrinia statutes of iqi; are I
O ^ ^
ress Co. (Tenn.), 165 S. W.
nyon Act was assumed, but
pment was for personal use
rf receiving stick a shipment.
have held had the legislation
g Three.)
k +
m I m
^ M
' f i
i? A

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