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279, that the fact that a railroad bridge, for sale at places other than private resi: abutment is constructed with stone steps dences is an unconstitutional interference which, to the knowledge of the company, with property rights. are attractive to children, does not show an invitation, express or implied, for chil

(February 26, 1915.) dren to make use of them as a stairway, the absence of evidence to show that this is not the usual and ordinary method of con

PPEAL by the Commonwealth from a A

judgment of the Circuit Court for struction; and the company is therefore not Warren County dismissing a warrant charg. liable for the death of a four-year-old boy ing defendant with keeping intoxicating who falls from the steps and is killed.

Actual knowledge that children resort to liquors at a place other than his private a railroad trestle to play is, in Dwyer vi

residence in violation of statute. Affirmed. Missouri P. R. Co. 12 Mo. App. 597, held

The facts are stated in the opinion. immaterial in an action brought to re

Messrs. G. Duncan Milliken, James cover for the death of a child killed by the Garnett, Attorney General, and Charles fall of an iron placed thereon by the com- H. Morris, Assistant Attorney General, for pany, since it is bound to take notice of the the Commonwealth. habits of children, the character of the place,

Messrs. T. W. Thomas and R. C. P. and the natural consequence of so placing Thomas, for appellee: the iron.

J. D. C.

The legislature of this commonwealth has never undertaken to prohibit the possession of liquor by the owner thereof, for a

lawful purpose, in local-option territory. KENTUCKY COURT OF APPEALS.

McGuire v. Com. 30 Ky. L. Rep. 720, 99

S. W. 612; Com. v. Hardy, 124 Ky. 375, 99 COMMONWEALTH OF KENTUCKY.

S. W. 239; Com. v. Dickerson, 25 Ky. L. Appt.,

Rep. 1043, 76 S. W. 1084; Pope v. Com.

153 Ky. 320, 155 S. W. 737; Calhoun v. IIARRY SMITH.

Com. 154 Ky. 70, 156 S. W. 1077; Martin (-Ky. - 173 S. W. 340.)

v. Com. 153 Ky. 784, 45 L.R.A. (N.S.) 957,

156 S. W. 870; Adams Exp. Co. v. Com. Intoxicating liquor keeping pur

154 Ky. 462, 48 L.R.A. (N.S.) 342, 157 S. pose.

W. 908. 1. A statute making it unlawful to keep, An act forbidding a citizen, the owner of store, or possess any intoxicating liquors in liquors purchased by him where the sale any place other than a private residence of same was lawful, from having said liwill not be limited to a keeping for sale, where other provisions relate to a keeping quors in his possession for a lawful purfor such purpose.

pose, elsewhere than his private residence,

is unconstitutional and void. Constitutional law property rights storing liquors.

Com. v. Campbell, 133 Ky. 50, 24 L.R.A. 2. A statute prohibiting the keeping of (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. intoxicating liquors which are not intended' 159. Note. Power to prohibit the keeping in possession or for personal use, and that

of intoxicating liquor irrespective of although in the parish in which the muany intention to sell it in violation of nicipality in question was situated it ap. law.

peared that it had been decided under a The earlier cases on this question are dis- local-option statute, to withhold licenses cussed in the note to Eidge v. Bessemer, 26 from drinking saloons, and to prohibit the L.R.A.(N.S.) 394.

sale of intoxicating liquors, this vote did See also the notes referred to in that not and could not have made the possession note.

of intoxicating liquors for every purpose a An ordinance making it unlawful for any crime. It is further stated that the ordiperson who is "keeper, owner, lessee, man

nance is beyond the terms of any state ager, inmate, employee, hireling, or watcher statute in that it interferes with personal of a house of prostitution or assignation (or liberty; that although houses of prostituany house where a prostitute lives), or who tion may be regulated and may be closed is an habitual visitor thereto, or who loafs by the council, yet the property of the around such place or places, to keep or keepers may not be confiscated and their have intoxicating liquors in such house in personal liberty be interfered with so long any quantity whatever, or for any purpose as they and their property are not inimical whatever, except on a physician's prescrip to the public safety. tion for medicinal purposes,” is beyond the A statute making it unlawful "for any power of a municipality to enact. Shreve. person to have or keep in excess of 1 quart port v. Hill, 134 La. 352, 64 So. 137. It is of spirituous, vinous, fermented, or malt stated in the opinion that the state had not liquors or any imitation thereof or substimade it a crime to have intoxicating liquors' tute therefor, or in any manner permit any


Clay, C., filed the following opinion: dicinal, mechanical, chemical, scientific or

At the 1914 session the general assembly sacremental purposes, nor apply to such passed an act entitled “An Act Prohibiting liquors in the process of transportation or the Shipment of Liquors for Sale in Local in the possession of a common carrier, nor Option Territory and Prohibiting Persons any wholesale dealer in, or brewer, or disfrom Having in Possession for Sale Liquors tiller engaged in the manufacture of such in Such Territory.” Acts 1914, chap. 7, p. liquors in said prohibition territory." 25. The act was approved March 9, 1914. Section 5 provides that all liquors con

Section 1 makes the payment by any per- signed, shipped, transported in any manner, son in prohibited territory of the United received, held, or possessed contrary to the States internal revenue tax permitting the provisions of this act, shall be deemed consale of intoxicating liquors, an intent to traband. violate the prohibitory law, and makes it Section 6 defines the word "person” as unlawful for any such person to buy, bar- used in the act. gain for, accept, receive, hold, or possess Section 7 prescribes certain penalties for intoxicating liquors.

violation of the act. Section 2 makes it unlawful for any per- Section 8 repeals all acts inconsistent son to consign, ship, or transport intoxicat- with the provisions of the act. ing liquors to any person in prohibited ter- Defendant, Harry Smith, was charged ritory, or for any person residing in such with a violation of § 4 of the act, and was territory to receive such liquors, unless the fined by the county court. On appeal to packages containing the shall be the circuit court, § 4 of the act was held marked and labeled in a certain manner. unconstitutional, and the defendant dis

Section 3 requires railroad, express, or charged. The commonwealth appeals. other transportation companies doing busi- The facts on which the prosecution is ness in the state to keep certain records based are admitted, and are in brief as of the transportation and delivery of all follows: intoxicating liquors in prohibited territory. Between the 1st and 9th days of June, Section 4 is as follows:

1914, Harry Smith and three of his friends “In any county, district, precinct, town arranged to go camping. They made up a or city in this state where the sale of any fund to purchase beer for the trip. The of the liquors mentioned in § 1 is pro- beer was ordered from the City Bottling hibited, it shall be unlawful for any person Works of New Albany, Indiana, with directo keep, store, or possess any such liquors tions to consign it to defendant. The beer in any room, building or structure other arrived on June 11, 1914. The expenses inthan the private residence of such person, cident to the purchase and transportation and which is not used as a place of pub- of the beer were paid by Smith and his lic resort: Provided, that none of the pro- three friends. When the beer was received, visions of this section shall apply to drug. it was carried to a room in the rear of the gists authorized to sell such liquors, nor office of a local physician, and in the latto persons possessing such liquors for me-| ter's control, and placed there with his conother person to have or keep any spirituous, , is admissible against the defendant in the vinous, fermented or malt liquors, or any trial of cases involving violations of the imitation thereof or substitute therefor, or prohibitory statute. But such possession any liquors or compounds of any kind or alone is insufficient to sustain a conviction.” description whatsoever

upon, in or On the contrary, in State v. Phillips, about his place of business or any place of Miss. post, 530, 67 So. 651, a statute amusement or recreation or any public re- providing “that no intoxicating liquor withsort or any club room, whether such liquors in the meaning of this act shall be kept be intended for personal use of the person in any locker or other place in any social so having and keeping the same or not,” club or organization for use therein, and all was held unconstitutional in Ex parte Wil-persons carrying such liquor to such club son, 6 Okla. Crim. Rep. 457, 119 Pac. 596. or locker for use therein or keeping the The court states: "The only conclusion same for such use, shall be guilty of a vio. that we can legitimately arrive at is that lation of this act,” was sustained as a valid the act in question is not within a reason- exercise of the police power. It is stated able exercise of the police powers of the that this statute does not deprive the memstate-is unconstitutional and void. We bers of the club or social organization afmay observe, however, that although the fected, of the equal protection of the law. law cannot prevent one from having in

The earlier cases on the power to protoxicating liquors in his possession for his hibit or restrict one using intoxicating liown use, yet this court has always held quor or having the same in his possession that the possession of an unusual quantity for his own use are discussed in the note of intoxicating liquors is a circumstance to Com. v. Campbell, 24 L.R.A. (N.S.) 172. which, together with other competent proof,

W. A. E.




sent. The fishing trip was abandoned, and liquors at places other than the private the parties proceeded to drink, and invite residence of the person owning the same. some of their friends to drink, the beer. On the other hand, it is insisted for the The last few remaining bottles were drunk defendant that under our Constitution the on June 16th, after the act above set out police power of the general assembly is went into effect. No part

the beer was somewhat restricted, and that the broad taken from the room where it was placed. power of prohibiting or limiting the place No person became intoxicated from drink of possession does not exist, unless the ing any of the beer, and no person other possession is for an unlawful purpose. A than Smith and his three friends contrib- question very similar to the one here inuted any portion of the expense incurred involved was before this court in the case of purchasing the beer or in its preparation for Com. v. Campbell, 133 Ky. 50, 24 L.R.A.

(N.S.) 172, 117 S. W. 383, 19 Ann. Cas. It will be observed that § 4 of the act in 159. There the city of Nicholasville, where question makes it unlawful for any person local option prevailed, enacted an ordinance to keep, store, or possess intoxicating li- making it unlawful for any person to dequors any room, building, or structure liver or distribute in the town of Nicholas. other than the private residence of such ville any intoxicating liquors; provided, person, which is not used as a place of however, that any person might bring into public resort, in prohibited territory. In the town on his person and as his personal view of the evident purpose of the legisla- baggage and for his own use such liquors ture, as expressed in the title to the act, it in quantities not exceeding 1 quart. The is insisted that the words, "for sale,” should ordinance held unconstitutional, on be interpolated in § 4, and the act con- the ground that the police power did not strued so as to prohibit 'the possession for extend to the deprivation of a citizen of sale of intoxicating liquors in any room, his right to have intoxicating liquors in building, or structure other than the pri- his possession for his own use, and on the vate residence of the person possessing further ground that our Constitution dethem. It is also argued that where an act prives the legislature of the power of foris susceptible of two constructions, one of bidding citizens to have such liquors in which will render the statute unconstitu- their possession for their own

In tional and the other constitutional, that discussing this question the court said: construction which sustains the constitu- “Now, can it be contended with any show tionality of the act should be adopted. It of reason that the framers of the Constimust be remembered, however, that we al- tution intended to leave the question of the ready have in force a statute making the retailing of liquor in a given district to possession of intoxicating liquors for the vote of the majority of the qualified purpose of sale in local option territory voters in the district, and yet leave it in unlawful. In view of this fact, and of the he power of the legislature upon its own further fact that, if the words, “for sale,” | motion to prohibit the possession of liquor are interpolated in & 4, the necessary effect by the citizen? Before the present Conof that section will be to give persons the stitution, it was competent for the legisright to keep intoxicating liquors at their lature to prohibit the sale of liquor by private residences for the purpose of sale retail in any county, town, or district within prohibited territory, we conclude that out any vote being taken by the citizens, the section in question is not susceptible or without giving them any voice in the of such a construction, but that the legis- matter; but no one doubts that, under the lature intended to make the possession of present Constitution, it is not competent intoxicating liquors in prohibited territory for the legislature, without a vote of the at any other place than the "rivate resi- citizens, to declare the retailing of liquor in dence of the person possessing we same un- any part of the state unlawful. How vain lawful, irrespective of any purpose or in- it would be, then, for the framers of the tention to sell the same.

Constitution to thus take from the legislaIn view of this conclusion, it is necessary ture the power to regulate the retailing to determine whether or not under our of liquor, and place that question within Constitution the legislature has this power. the competency of the qualified voters, and For the commonwealth it is insisted that yet leave within the competency of the legis. the act is aimed at the bootlegger, who | lature the greater power of prohibiting generally hides or secretes intoxicating li- the citizen either from possessing liquor or quors at places other than his own resi- using it for his own benefit or comfort. It dence, and in order to prevent sales by the is self-evident that, if the legislature may bootlegger it is within the police power of pass a general law prohibiting any citizen the legislature to make unlawful the posses from possessing or using liquor in any sion in prohibited territory of intoxicating quantity, this would in itself be the most



perfect prohibition law possible, because no of it, or for some other improper purpose, man could retail [liquor] without first hav- can by no possibility injure or affect the ing possession of it. We cannot believe that health, morals, or safety of the public, and the framers of the Constitution intended therefore the statute prohibiting such keepto thus carefully take from the legislature | ing in possession is not a legitimate exerthe power to regulate the sale of liquor, tion of the police power. It is an abridge. and at the same time leave with that de ment of the privileges and immunities of partment of the state government the great- the citizen without any legal justification, er power of prohibiting the possession orand therefore void.'» ownership of liquor. The fact that the In Freund on Police Power, SS 453, 454, Constitution, by § 154, leaves with the quoting from an article on Personal Liberty general assembly the power of restricting in the Cyclopedia of Temperance and Proor prohibiting the sale or gift of liquor hibition, we find the following: “Even on election days, clearly shows that the the advocates of prohibition concede that convention had it in mind that but for the state has no concern with the private this special power the legislature could not use of liquor. “The opponents of prohibieven regulate the sale of liquor on election tion misstate the case by saying that the days. The history of our state from its state has no right to declare what a man beginning shows that there was never even shall eat or drink. The state does not the claim of a right on the part of the legis. venture to make any such declaration. lature to interfere with the citizen using

It is not the private appetite or liquor for his own comfort, provided that home customs of the citizen that the state in so doing he committed no offense against undertakes to manage, but the liquor trafpublic decency by being intoxicated; and fic.

If, by abolishing the saloon, we are of opinion that it never has been the state makes it difficult for men to within the competency of the legislature to gratify their private appetites, there is no 80 restrict the liberty of the citizen, and just reason for complaint... It is certainly not since the adoption of the therefore significant that the policy of present Constitution.”

prohibition stops short of dealing with the The opinion concludes as follows: “The private act of consumption.” right to use liquor for. one's own

In Ex parte Brown, 38 Tex. Crim. Rep. fort, if the use is without direct injury 295, 70 Am. St. Rep. 743, 42 S. W. 554, to the public, is one of the citizen’s natural it was held that the keeping of liquors in and inalienable rights, guaranteed to him one's possession, whether for himself or by the Constitution, and cannot be abridged another, unless intended for illegal sale or as long as the absolute power of a majority for some other improper purpose, can by is limited by our present Constitution. no possibility injure or affect the health, The theory of our government is to allow morals, or safety of the public, and there. the largest liberty to the individual com- fore a statute prohibiting the keeping of mensurate with the public safety, or, as such liquors in one's possession is not a it has been otherwise expressed, that gov. legitimate exercise of the police power, but ernment is best which governs the least. an abridgement of the privileges and imI'nder our institutions there is no room for munities of the citizen, without any legal that inquisitorial and protective spirit justification. which seeks to regulate the conduct of men In the case of State v. Gilman, 33 W. in matters in themselves indifferent, and to Va. 146, 6 L.R.A. 847, 10 S. E. 283, a statute make them conform to a standard, not of prohibiting a citizen from having in his their own choosing, but the choosing of the possession for another intoxicating liquors lawgiver,—that inquisitorial and protective was held unconstitutional. The decision spirit which seeks to prescribe what a man was predicated on the principle that every sball eat and wear, or drink or think, thus person has a right to keep or use liquor crushing out individuality and insuring for his own benefit or to keep it for an. Chinese inertia by the enforcement of the other, provided he does not attempt to sell use of the Chinese shoe in the matter of it or otherwise use it so as to injure the the private conduct of mankind."

public. In the case of State v. Williams, Black, in his work on Intoxicating Li. 146 N. C. 618, 17 L.R.A.( N.S.) 299, 61 quors (page 50), says: "But it is justly S. E. 61, 14 Ann. Cas. 562,

statute proheld that a provision in such a law that hibiting the carrying of more than a half no person without a state license shall gallon of intoxicating liquor into prohibited ‘keep in his possession, for another, spiritu- territory in any one day was held void, on ous liquors,' is unconstitutional and void. the ground that it deprived such person “The keeping of liquors in his possession by of his constitutional property right in case a person, whether for himself, or for an- he had no intention to sell the liquor. other, unless he does so for the illegal sale' To the same effect are the following cases :




We A

Eidge v. Bessemer, 164 Ala. 599, 26 L.R.A. | As this is the effect of g 4 of the act in (N.S) 394, 51 So. 246; Titsworth v. State, question, we concur in the ruling of the 2 Okla. Crim. Rep. 268, 101 Pac. 288; Circuit Judge that the section is unconHenderson v. Heyward, 109 Ga. 373, 47 stitutional and void. L.R.A. 366, 77 Am. St. Rep. 384, 34 S. E. Judgment affirmed. 590; Sullivan v. Oneida, 61 Ill. 242.

The power of a state to regulate and control the conduct of a private individual is confined to those case. where his conduct injuriously affects others. With his LOUISIANA SUPREME COURT. faults or weaknesses, which he keeps to himself, and which do not operate to the

QUAKER REALTY COMPANY, Limited, detriment of others, the state as such has In other words, the police

CHARLES T. STARKEY, Appt. power may be called into play when it is reasonably necessary to protect the public

(- La. --, 66 So. 386.) health or public morals or public safety. The mere fact that the legislature sees fit to enact a statute ostensibly for the pur- Abandonment how effected. pose of promoting such ends is not con- 1. Abandonment of real property must be clusive of the question. When, therefore, in writing. the statute purporting to have been en- Evidence - death - presumption. acted to protect the public health or public 2. An absentee is presumed to live until morals or public safety has no real or the contrary is proved; otherwise the absubstantial relation to those objects, or is

sence must be such that the life of a man, a palpable invasion of rights secured by who may live one hundred years, should be the fundamental law, it is the duty of the presumed to have ended. court so to adjudge, and thereby give effect

(November 4, 1914.) to the Constitution. State v. Williams, supra; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273.

PPEAL by defendant from a decree of А

the Civil District Court for the Parish have in force a statute prohibiting the of Orleans in plaintiff's favor in a suit to possession of intoxicating liquor in pro- compel specific performance of a contract of hibited territory for the purpose of sale. sale of real estate. Affirmed. Under this statute very slight evidence is The facts are stated in the opinion. sufficient to secure a conviction. Where, Mr. Charles T. Starkey, in propria pertherefore, the purpose of the owner is unlawful, the above statute is effective. Here An assessment for taxes made in the it is sought to go one step further, and name of one other than the record owner, make the possession for an innocent pur- and a forfeiture or sale of property so pose considered from the standpoint of the assessed, prior to 1890, was an absolute police power as much of an offense as if nullity, not curable by prescription. the possession were for an unlawful pur- Thibodaux v. Keller, 29 La. Ann. 508; pose.

Manifestly, if the legislature has Le Blanc v. Blodgett, 34 La. Ann. 108; the power to prohibit such possession at Guidry v. Broussard, 32 La. Ann. 924; Delplaces other than one's private residence, aroderie v. Hillen, 28 La. Ann. 537; Marthen it has the like power to prohibit tin v. Southern Athletic Club, 48 La. such possession even at a private residence, Ann. 1053, 20 So. 181; McWilliams v. and this is exactly what was held in Com. Michel, 43 La. Ann. 988, 10 So. 11; Wilbert v. Campbell, supra, could not be done. v. Michel, 42 La. Ann. 836, 8 So. 607; There must of necessity be limits beyond Kearns v. Collins, 40 La. Ann. 455, 4 So. which the legislature cannot rightfully go. 498; Maspereau v. New Orleans, 38 La. We think that limit is reached when it | Ann. 400, 58 Am. Rep. 194; Lague v. prohibits such possession for sale or other Boagni, 32 La. Ann. 914; Fix v. Dierker's unlawful purpose. It cannot go further Succession, 30 La. Ann. 176; Hayes v. and prohibit such possession, or limit the place of possession, where the liquors are Headnotes by SOM MERVILLE, J. intended for one's own use, and therefore for a purpose with which the police power

Note. - Presumption of death from abof the state is not concerned. It will not Woodmen v. Ghromley, L.R.A.1915B, 729,

sence is considered in the note to Modern do to say that, because some persons may evade the law as it now exists, others who rule at page 734.

with especial reference to the Louisiana

See also references at have no intention of violating the law the beginning of the note to annotation on should be denied their constitutional rights. ' related questions.

sona :

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