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is the strongest case decided by any court in In State v. Gilman, 33 W. Va. 146, 6 favor of appellee's view of the law. In L.R.A. 847, 10 S. E. 283, the supreme court other words, this case carries the sanctity of of West Virginia was passing upon the the right to possess and use property much validity of a statute of that state which further than has any other court of last denounced as a misdemeanor the keeping in resort. This case was decided by a divided possession of spirituous liquors of another court; and, with the utmost deference to by any person not the owner, who had not the opinion of the majority, we think the obtained a license therefor. The decision dissenting opinions are more convincing went off upon the court's interpretation of than the opinion of the court. The court the state Constitution, which declared "laws in that case had under consideration an may be passed regulating or prohibiting the ordinance of the city of Bessemer, the 1st sale of intoxicating liquors.” The court section of which is in these words, riz.: | invoked the maxim, Expressio unius est "Be it enacted by the city council of Besse- esclusio alterius, holding that, the statute mer as follows: That it shall be unlawful not having reference to the prohibition or and constitute a violation of this ordinance, sale of liquors, the legislature was without if any person, firm, or corporation in the power to pass the statute. The court also city of Bessemer, have keep on storage held that the statute could not be upheld or deposit, or have therein, any vinous, spir- as coming within the police power of the ituous, or malt liquors, or intoxicating bev- state. We do not consider this decision of erages (or any beverage], which is a product much value in this case, because the statute of maltace or gencase as a substantial in there reviewed is radically and substantially gredient, in or at any place where any different from the statute we are considerdrinks or beverages are sold or kept for ing, and besides, the question before that sale.”
court was complicated by the Constitution The 2d section of the ordinance provided of West Virginia. that the above section should not apply to Ex parte Brown, 38 Tex. Crim. Rep. 295, druggists of the class described thereby, 70 Am. St. Rep. 743, 42 S. W. 554, a Texas
As we interpret the opinion of the court, case, does not seem to be pertinent to this the gist of the court's reasoning may be case. In that case the Texas court was confound in the following words of the opinion, struing a statute in the light of the state viz.: “It can be justified only, if at all, on Constitution, referring directly to the ques. the ground that it sustains some reasonable tion of the prohibition of the sale of intoxirelation to the prohibition law in the way cants in local option territory. Referring of preventing evasions of that law by trick, to the constitutional provision, the court artifice, or subterfuge, under guise of which said: “It occurs to us that this expression that law is violated. But it has no such of the will of the people on the subject is relation. It undertakes to prohibit the exclusive of any other method to be purkeeping, in any quantity and for any pur- sued by the legislature. Whatever may be pose, however innocent, of intoxicating li. said as to the power of the legislatures of quors and beverages in places which are in other states, with no express provisions of nocent in themselves."
their Constitutions on this subject, to legis. It seems clear to us that the court entire- late in regard to the liquor traffic under the ly underestimated the ability and cunning general police power, the same does not ap. of the average illicit dealer in intoxicating ply with us. We have an express provision beverages. The city council was much on the subject, and that provision was inwiser, in our opinion, to the devious ways tended to prescribe a method of dealing with of this class of criminals. Given a “pop the question, and to exclude any other rule stand” or a soda fountain the blind tiger is or method; at least, so far as local-option practically immune from prosecution under territory is concerned.” any laws against the sale of intoxicating The court then quoted in full the opinion liquors. It would seem clear to us that vio of the supreme court of West Virginia in iators of the law would have filed a dissent. State v. Gilman, supra, adopted and ining opinion in that case, and could have dorsing the same. The two courts were in pointed out with precision wherein the court accord, because of the similarity of their erred, when it said that this ordinance state Constitutions. It will be seen that sustains no reasonable relation to the prohi- the Texas case is expressly confined to probition law.
visions of the Constitution of Texas, and The dissenting opinion, by Judge McClel. what would have been the decision of that lan, points out the reasonable relation of court had there been no such constitutional the ordinance to the prohibition law in a provision it is, of course, impossible to conmuch clearer way than we can hope to do, jecture. and we refer to his opinion and adopt the State v. Goodwill, 33 W. Va. 179, 6 L.R.A.
621, 25 Am. St. Rep. 863, 10 S. E. 285, we
same as our own.
do not believe has any application here, ex-, laws, it could not be contended, with any cept as a general statement of the principle show of reason, that the framers of the Conrequiring classification of persons or corpo- stitution intended to leave the question of rations to be affected by the statute to be the retailing of liquor in a given district reasonable, and not discriminatory, which to a vote of a majority of the voters, and principle we will discuss later.
yet leave it in the power of the legislature State v. Williams, 146 N. C. 618, 17 L.R.A. upon its own motion to prohibit the pos(N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562, a session of liquor by the citizen. True, the North Carolina case, we here copy the sylla- court said much more than this. The court bus, which indicates the question decided, discussed the natural and inalienable rights viz.: “Spirituous, malt, or vinous liquors of man, but after they reached the concluare property within the meaning of the sion that the legislation was in violation of Constitution, when its manufacture or sale the state Constitution, referring to the paris lawfully prohibited by statute; and when ticular power under review, there was noththe legislature makes it an indictable of. ing more to be said. ferse to carry more than a certain quantity It is claimed by all the cases wherein the into a specified county, within a limited precise point now before this court was intime, prohibiting its sale and not prohibitvolved the power to enact legislation of ing its use, but authorizing its use for cer- this character was denied. We have entain purposes,
it is unconstitutional, for deavored to analyze the cases relied on to that it is a taking of property without due sustain this claim, and we believe no court process of law, and not within the police (except possibly the Alabama and North power of a state.”
Carolina courts), has gone so far as to conThis case was also decided by a divided demn the legislation challenged in the prescourt. We mention this fact for the pur- ent case. pose of showing that decisions along this
Justice Holmes in Noble State Bank v. line have usually found some judge of the Haskell, 219 U. S. 104, 55 L. ed. 112, 32 court who dissents. We thing the dissent- L.R.A.(N.S.) 1064, 31 Sup. Ct. Rep. 186, ing opinion in this case propounds a ques. Ann. Cas. 1912A, 487, thus defines police tion hard to answer, and we quote the same, | power: "It may be said in a general way because, in our opinion it demonstrates the that the police power extends to all the fallacy of the court's reasoning, viz.: "In great public needs. . . It may be put limiting each person to a half gallon per forth in aid of what is sanctioned by usage, day for his own use (for the law permits or held by the prevailing morality or strong no sale) the legislature was not niggardly. and preponderant opinion to be greatly and Besides, if the manufacture, though exclu- immediately necessary to the public wel. sively for one's own use and out of one's fare." own apples and peaches, in the county, can The Supreme Court of the United States be forbidden by statute without breaking has uniformly held that the adoption of the the Constitution, why cannot the importa- 14th Amendment of the Constitution did tion of the same article across the county not have the effect of denying to the state line, in a greater quantity than a half gal- power to prescribe "regulations to promote lon per day, even for one's own use, be the peace, health, morals, education and prohibited by the same power? The truth good order of the people.” is that, the legislature having jurisdiction It may be said that the presence and use of the subject, the limitations upon its exer- of intoxicating liquors at a place where a cise rest in the wisdom and sound judgment number of people gather for the enjoyment of the legislature, subject only to review by of social intercourse would have a tendency the people, not by the courts."
to disturb the peace and quiet of the people Com. v. Campbell, 133 Ky, 50, 24 L.R.A. there assembled. It is not a stretch of the (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. 159, imagination to assume that one intoxicated a Kentucky case, the charge against the de- man may, and indeed frequently does, anfendant was bringing intoxicating liquors noy, disgust, and offend the moral sense of a into a town, upon his person or as his per- large number of other people engaged in the sonal baggage, exceeding a quart in quan- discussion of serious and important social tity. This prosecution was based upon a questions. The affectionate or the bellicose town ordinance making it unlawful to bring inebriate can do much to arouse the ire and into the town intoxicating liquors exceeding invite the active resentment of his victims. one quart in quantity. This case involved And so the legislature deemed it wise to the construction of the state Constitution, protect the members of social clubs, and and the court held that, inasmuch as the thus promote the public peace, by preventConstitution formulated a system by which ing the carrying of intoxicants into the club the sale of intoxicating liquors throughout rooms,-to be kept or used there,—to the the state was to be regulated by general discomfort of sober members and to the
peril of the public peace. This thought was orous and unreasoning mob when we indorse no doubt in the legislative mind, in so far, a law as within the police power of the at least, as the statute might apply to the state, when the Supreme Court of the class of social clubs organized and con- United States says this power exists whenducted for the encouragement of social in- ever the “preponderant opinion and prevailtercourse, and for the improvement and en- ing morality” believes this law necessary joyment of their fortunate members. to the public welfare.
There was another thought which prob- We quote the words of unknown ably prompted the legislation in question. writer as fairly representative of the pres. It is well known to those familiar with the ent "prevailing morality" of the people of enforcement of the laws against the sale of this state: “Whisky is a good thing in its intoxicants that many schemes, artifices, place. There is nothing like it for preservand devices have been originated for the ing a man when he is dead. If you want purpose of evading the law. Clubs and to keep a dead man, put him in whisky; if lodges have been organized for no other you want to kill a live man, put whisky purpose than to sell intoxicating liquors. in him.” The conscienceless promoters often select the writer a wag or a philosopher ? names for their club or lodge which suggest This question will be answered by "dyed to the uninitiated that these organizations in the wool ‘individualists'” but one way, have no purpose other than to assist the but we apprehend that their answer would moral and religious element of the com- not be approved in a state-wide primary. munity in every movement having for its There is abundant authority, we think, purpose the moral welfare of the commu- for our view. We will now cite some of the nity.
cases which are in line with our ideas of To check the pernicious and cunning ac- the law. These cases are collated by the tivities of the professional criminal,—the annotator of Eidge v. Bessemer, reported man who, once a blind tiger, is always a in 26 L.R.A. (N.S.) 395 et seq.: “Thus, in blind tiger,--the legislature adopted a broad Selma v. Brewer, 9 Cal. App. 70, 98 Pac. 61, classification to cover any and all social the court said that it was of opinion that a clubs. This was necessary to make the municipal ordinance declaring it unlawful statute at all efficient. In this statute the i for any person, firm, corporation, company, limitation upon the use of liquor is confined | club, or association to have, keep, possess, to social clubs. The owner may carry it provide, or store' any spirituous, etc., lianywhere else and use it to any extent. quors within a town, but permitting a liThere is no attempt to destroy the personal censed pharmacist to sell the same, taken liberty of the owner to enjoy the seductive as a whole, is consistent with the proviinfluence of liquor, or even to get drunk. So , sions of the Constitution authorizing any far as this statute is concerned one may city to make and enforce police regulations own any amount of liquor, use it as he not in conflict with general laws, and represees fit, and even carry it anywhere except sents only a proper exercise of the power to a social club or organization. Therefore expressly vested by that instrument in it is said the statute denies the owner, as cities, counties, towns, and townships. a club member, the equal protection of the "And an ordinance prohibiting the owner laws.
or keeper of a retail grocery store, where There was a time, not long ago, when meat, grain, fruit, provisions, or other armany intelligent and virtuous citizens of ticles are exposed for sale, from keeping this state resented any interference by the therein, or in any inner room adjacent therelegislature whereby it undertook to pro- to, or on the premises connected therewith, hibit the sale of intoxicating liquors. Even any spirituous, etc., liquors, unless licensed laws submitting to the people of towns or by the city to retail the same, is warranted counties the option of prohibiting the sale by charter authority to pass any by-law or in any given town or county were indig- requirement that shall appear requisite for nantly denounced as efforts to deprive the the city, or for preserving peace, order, and dissenters of their natural and inalienable good government. Heisembrittle v. Charlesrights. There was a time, perhaps, when ton, 2 McMull. L. 233. The court said that this sentiment represented the "prevailing there could be no question that the remorality” of many communities. We have straints imposed by such ordinance were traveled far since, until now it may be within the ordinary powers of legislation, safely said that the “preponderant opinion,” there being nothing in the restrictions imas well
as “the prevailing morality,” is posed by the Constitution of the state or willing and anxious to prohibit even the United States restraining the legislature possession of alcoholic liquors as a crime from passing a general law like that under against peace, morality, and good govern- consideration, or from granting power to ment. We do not think we yield to a clam-'do so to municipal corporations.
"So an ordinance providing that no intoxi- , though the possession and property right cating liquors shall be used or kept in any in such liquors was legal, and the place at refreshment saloon or restaurant for any which such liquors were assembled was not purpose whatever is valid, notwithstanding a public place; and, although it is always such liquors are not kept for sale, and the to be borne in mind that delegated powers keeping thereof elsewhere is not restricted. are to be strictly construed and reasonably State v. Clark, 28 N, H. 176, 61 Am. Dec. exercised, we think the passage of the ordi611. See the quotation from this case in nance in question
is not an unreathe dissenting opinion of McClellan, J., in sonable exercise of the police power, and is Eidge v. Bessemer.
fully warranted by the general welfare "And it was held in Cohen v. State, 7 Ga. clause."" App. 5, 65 S. E. 1096 (one justice, however, We do not think that this act deprives dissenting), that on a prosecution for the members of social organizations of the equal violation of a law declaring it unlawful for protection of the law. It seems to us that anyone to keep on hand at his place of busi- the classification of the organizations which ness any intoxicating liquor, evidence as to would come under the regulations adopted the respondent's purpose in keeping it was by the legislature is entirely reasonable. It properly excluded as irrelevant and imma- may be said that business, benevolent, and terial.
other organizations which might be men"Thus it was held in Easley v. Pegg, 63 S. tioned, were not put under the statutory C. 98, 41 S. E. 18, that a municipal ordi- regulations, for the reason that ordinarily nance enacted under the general welfare liquors are not carried into the places where clause of a municipal charter, prohibiting such organizations assemble. There being the storing or keeping possession of spiritu- no public necessity for prohibiting members ous, etc., liquors, except as provided by the of the organizations not mentioned in the state dispensary law, was valid, it not being statutes from carrying liquors to the meetnecessary that such liquor should be kept ing places, the legislature did not attempt for an unlawful purpose; the offense eing to remedy a nonexistent evil. complete if there is a storing or keeping of Before leaving this subject, we venture liquor, which is contraband under the dis- to say that “social clubs,” by this statute, pensary law.
are selected as the special favorites rather “And in Wright v. Macon, 5 Ga. App. than as the victims of the law. While pri750, 64 S. E. 807, where a municipal ordi- marily the statute was enacted in the innance, declaring it unlawful for any club, terest of the public welfare and to effectuato corporation, or association of persons, or the purpose of the legislature to make the number of persons, whether incorporated or sale of intoxicating liquors more difficult, otherwise, to keep, or permit to be kept, in yet it is conceivable that the immediate any room or place, or in any place con- and direct result of the enforcement of the nected directly or indirectly therewith, in statute will be of special benefit to social which members of such club. corporation, clubs. association of persons, or number of per- Lastly, it is contended that the act in sons, assembled, any alcoholic, spirituous, question is unconstitutional because it conetc., liquors, under which it was sought to travenes $ 71 of our Constitution. All quesprosecute one who kept liquor owned by tions of this kind are foreclosed by the de. him and intended for his own personal use, cision in Jackson v. State, 102 Miss. 663, in a locker of a club connected with lodge 59 So. 873, Ann. Cas. 1915A, 1213. If the rooms of a fraternal society to which he be- object of prohibition of the sale of intoxilonged, was held void, solely on the ground cating liquors is not to prevent, as far as that the state had already regulated and may be, the drinking of such liquors, then licensed such clubs, the court said that 'but it is difficult to justify the laws prohibiting for the passage of the license tax by the the sale. Of course, the typical public state, there could be no question in our saloon is demoralizing, but there would be minds that . (such ordinance could no practical difficulties in the way of so have been adopted under the general wel. regulating the saloon as to minimize all of fare clause of its charter). It is evident the evils which flow from the saloon, exthat the general policy of the state in the cept the evils which flow from the drinking passage of the general prohibition act of of intoxicating beverages. If it is not a 1907 was to stop, or at least to decrease, menace to the health, morals, welfare, and the drinking of intoxicating liquor, and, the peace of the public for men and women to ordinance
now before us being in drink alcoholic liquors, it would seem that aid of that general policy, we think it could | the public could have no interest in probe extended to preventing the assembling of hibiting the sale. The ultimate purpose and liquors at a place where drinking, instead end of prohibition is to prevent the use of of being decreased, would be increased, al- ' liquor as a beverage. This ultimate end
is approached step by step, and when the | 462, 45 N. Y. Supp. 277, 3 Am. Neg. Rep. preponderant and prevailing morality of the 251; J. I. Case Threshing Mach. Co. v. nation believes that the public welfare de- Burns, 38 Tex. Civ. App. 412, 86 S. W. mands the final step, the way will be found 65; McGuiness v. Butler, 159 Mass. 233, to accomplish the end.
38 Am. St. Rep. 412, 34 N. E. 259; Barney The judgment of the trial court sustain- v. Hannibal & St. J. R. Co. 126 Mo. 372, ing the demurrer to the affidavit is reversed, , 26 L.R.A. 847, 28 S. W. 1069; Foster-Herand the cause remanded for trial on its bert Cut Stone Co. v. Pugh, 115 Tenn, 688, merits.
4 L.R.A. (N.S.) 804, 112 Am. St. Rep. 881, 91 S. W. 199, 19 Am. Neg. Rep. 553; Harris v. Cowles, 38 Wash. 331, 107 Am. St. Rep.
847, 80 Pac. 537. NEBRASKA SUPREME COURT. Messrs. Charles E. Foster and Bald.
rige, Keller, & Keller, for appellee: HERMAN ZIGMAN, Admr., etc., of Philip The doctrine of the "turntable cases” Zigman, Deceased,
Lynch v. Nurdin, 1 Q. B. 29, 4 Perry & BEEBE & RUNYAN FURNITURE COM- D. 672, 10 L. J. Q. B. N. S. 73, 5 Jur. PANY, Appt.
797; Chicago, B. & Q. R. Co. v. Krayenbuhl,
65 Neb. 889, 59 L.R.A. 920, 91 N. W. 880, (97 Neb. 689, 151 N. W. 166.)
12 Am. Neg. Rep. 300. Highway negligent driving coup
Defendant was upon the street, conductling wagons.
ing its business in a negligent and un1. The act of coupling two wagons to guarded manner, and is liable for the ingether, and thus driving them on the street, jury. does not of itself constitute negligence on Indianapolis v. Emmelman, 108 Ind. 530, the part of the owner of the wagons, so as 58 Am. Rep. 65, 9 N. E. 155; Iamurri v. to render him liable in damages for the death of a child who climbed on the connect x. W. 884; Wharton, Neg: 2d ed. $ 112;
Saginaw City Gas Co. 148 Mich. 27, 111 ing pole.
Rachmel v. Clark, 205 Pa. 314, 62 L.R.A. Negligence attractive nuisance.
2. The doctrine of the "turntable cases" 959, 54 Atl. 1927, 14 Am. Neg. Rep. 208; is not applicable to the facts in this case.
Kreiner v. Straubmüller, 30 Pa. Super. Ct.
609; Westerfield v. Levis Bros. 43 La. Ann. (February 12, 1915.)
63, 9 So. 52; Kelley v. Parker-Washington
Co. 107 Mo. App. 490, 81 S. W. 631; Busse A ms.
of the District Court for Douglas N. W. 219, 15 Am. Neg. Rep. 743; Harper County in plaintiff's favor in an action v. Kopp, 24 Ky. L. Rep. 2342, 73 S. W. brought to recover damages for the alleged 1127; Ricketts v. Markdele, 31 Ont. Rep. wrongful killing of plaintiff's intestate. Re. 610; Louisville R. Co. v. Esselman, 29 Ky. versed.
L. Rep. 333, 93 S. W. 50; Jonasch v. StandThe facts are stated in the opinion. ard Gaslight Co. 24 Jones & S. 447, 4 N. Y.
Messrs. McGilton, Gaines, & Smith, for Supp. 542, 117 N. Y. 641, 22 N. E. 1131; appellant:
Whirley v. Whiteman, 1 Head, 610; Jensen The court should have directed a verdict v. Wetherell, 79 Ill. App. 33; Kopplekom for the defendant because there was v. Colorado Cement Pipe Co. 16 Colo. App. evidence of negligence in the manner of 274, 54 L.R.A. 284, 64 Pac. 1047; Siddall driving the team, or in the use of the street. v. Jansen, 168 Ill. 43, 39 L.R.A. 112, 48
Chicago Consol. Bottling Co. v. McGin- V. E. 191; Cook v. Houston Direct Nav. Co. nis, 51 Ill. App. 325; Henderson v. Knick- 76 Tex. 353, 18 Am. St. Rep. 52, 13 S. W. erbocker Ice Co. 119 N. Y. 619, 23 N, E. 475; Porter Anheuser-Busch Brewing 1143; Gavin v. Chicago, 97 Ill. 66, 37 Am. Asso. 24 Mo. App. 1; Dublin Cotton Oil Co. Rep. 99; Bishop v. Union R. Co. 14 R. I. v. Jarrard,
Tex. Civ. App.
- 40 S. W. 314, 51 Am. Rep. 386, 6 Am. Neg. Cas. 531; Biggs v. Consolidated Barb-Wire Co. 394; Hebard v. Mabie, 98 Ill. App. 543; 60 Kan. 217, 44 L.R.A. 655, 56 Pac. 4, 5 Rice v. Buffalo Steel House Co. 17 App. Div. Am. Neg. Rep. 335; Skinner v. Knickrehm,
10 Cal. App. 596, 102 Pac. 948. Headnotes by LETTON, J.
Letton, J., delivered the opinion of the Note. The doctrine of attractive nui
court: sance, as applie to road vehicles, is discussed in the note to Bruhnke v. La Crosse,
Action for the wrongful killing of plain50 L.R.A.(N.S.) 1147. And see references
tiff's intestate. Verdict and judgment for therein to other notes on the doctrine of at- | $3,000. Defendant appeals. tractive nuisance.
The facts that seem to be established by