279, that the fact that a railroad bridge abutment is constructed with stone steps which, to the knowledge of the company, are attractive to children, does not show an invitation, express or implied, for children to make use of them as a stairway, in the absence of evidence to show that this is not the usual and ordinary method of construction; and the company is therefore not liable for the death of a four-year-old boy who falls from the steps and is killed.

Actual knowledge that children resort to a railroad trestle to play is, in Dwyer v. Missouri P. R. Co. 12 Mo. App. 597, held immaterial in an action brought to recover for the death of a child killed by the fall of an iron placed thereon by the company, since it is bound to take notice of the habits of children, the character of the place, and the natural consequence of so placing

the iron.

J. D. C.

An ordinance making it unlawful for any person who is "keeper, owner, lessee, manager, inmate, employee, hireling, or watcher of a house of prostitution or assignation (or any house where a prostitute lives), or who is an habitual visitor thereto, or who loafs around such place or places, to keep or have intoxicating liquors in such house in any quantity whatever, or for any purpose whatever, except on a physician's prescription for medicinal purposes," is beyond the power of a municipality to enact. Shreve port v. Hill, 134 La. 352, 64 So. 137. It is stated in the opinion that the state had not made it a crime to have intoxicating liquors

for sale at places other than private resi dences is an unconstitutional interference with property rights.

A

(February 26, 1915.)

PPEAL by the Commonwealth from a judgment of the Circuit Court for Warren County dismissing a warrant charging defendant with keeping intoxicating liquors at a place other than his private

residence in violation of statute. Affirmed. The facts are stated in the opinion.

Messrs. G. Duncan Milliken, James Garnett, Attorney General, and Charles H. Morris, Assistant Attorney General, for the Commonwealth.

Messrs. T. W. Thomas and R. C. P. Thomas, for appellee:

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.

McGuire v. Com. 30 Ky. L. Rep. 720, 99 S. W. 612; Com. v. Hardy, 124 Ky. 375, 99 S. W. 239; Com. v. Dickerson, 25 Ky. L. Rep. 1043, 76 S. W. 1084; Pope v. Com. 153 Ky. 320, 155 S. W. 737; Calhoun v. Com. 154 Ky. 70, 156 S. W. 1077; Martin v. Com. 153 Ky. 784, 45 L.R.A. (N.S.) 957, 156 S. W. 870; Adams Exp. Co. v. Com. 154 Ky. 462, 48 L.R.A. (N.S.) 342, 157 S. W. 908.

An act forbidding a citizen, the owner of liquors purchased by him where the sale of same was lawful, from having said liquors in his possession for a lawful purpose, elsewhere than his private residence, is unconstitutional and void.

Com. v. Campbell, 133 Ky. 50, 24 L.R.A. (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. 159.

in possession or for personal use, and that although in the parish in which the municipality in question was situated it appeared that it had been decided under a local-option statute, to withhold licenses from drinking saloons, and to prohibit the sale of intoxicating liquors, this vote did not and could not have made the possession of intoxicating liquors for every purpose a crime. It is further stated that the ordinance is beyond the terms of any state statute in that it interferes with personal liberty; that although houses of prostitution may be regulated and may be closed by the council, yet the property of the keepers may not be confiscated and their personal liberty be interfered with so long as they and their property are not inimical to the public safety.

A statute making it unlawful "for any person to have or keep in excess of 1 quart of spirituous, vinous, fermented, or malt liquors or any imitation thereof or substitute therefor, or in any manner permit any

Clay, C., filed the following opinion: At the 1914 session the general assembly passed an act entitled "An Act Prohibiting the Shipment of Liquors for Sale in LocalOption Territory and Prohibiting Persons from Having in Possession for Sale Liquors in Such Territory." Acts 1914, chap. 7, p. 25. The act was approved March 9, 1914. Section 1 makes the payment by any person in prohibited territory of the United States internal revenue tax permitting the sale of intoxicating liquors, an intent to violate the prohibitory law, and makes it unlawful for any such person to buy, bargain for, accept, receive, hold, or possess intoxicating liquors.

Section 2 makes it unlawful for any person to consign, ship, or transport intoxicating liquors to any person in prohibited territory, or for any person residing in such territory to receive such liquors, unless the packages containing the same shall be marked and labeled in a certain manner.

Section 3 requires railroad, express, or other transportation companies doing business in the state to keep certain records of the transportation and delivery of all intoxicating liquors in prohibited territory. Section 4 is as follows:

"In any county, district, precinct, town or city in this state where the sale of any of the liquors mentioned in § 1 is prohibited, it shall be unlawful for any person to keep, store, or possess any such liquors in any room, building or structure other than the private residence of such person, and which is not used as a place of public resort: Provided, that none of the provisions of this section shall apply to druggists authorized to sell such liquors, nor to persons possessing such liquors for meother person to have or keep any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or any liquors or compounds of any kind or description whatsoever upon, in or about his place of business or any place of amusement or recreation or any public resort or any club room, whether such liquors be intended for personal use of the person so having and keeping the same or not,' was held unconstitutional in Ex parte Wilson, 6 Okla. Crim. Rep. 457, 119 Pac. 596. The court states: "The only conclusion that we can legitimately arrive at is that the act in question is not within a reasonable exercise of the police powers of the state, is unconstitutional and void. We may observe, however, that although the law cannot prevent one from having intoxicating liquors in his possession for his own use, yet this court has always held that the possession of an unusual quantity of intoxicating liquors is a circumstance which, together with other competent proof,

dicinal, mechanical, chemical, scientific or sacremental purposes, nor apply to such liquors in the process of transportation or in the possession of a common carrier, nor any wholesale dealer in, or brewer, or distiller engaged in the manufacture of such liquors in said prohibition territory."

Section 5 provides that all liquors consigned, shipped, transported in any manner, received, held, or possessed contrary to the provisions of this act, shall be deemed contraband.

Section 6 defines the word "person" as used in the act.

Section 7 prescribes certain penalties for violation of the act.

Section 8 repeals all acts inconsistent with the provisions of the act.

Defendant, Harry Smith, was charged with a violation of § 4 of the act, and was fined by the county court. On appeal to the circuit court, § 4 of the act was held unconstitutional, and the defendant discharged. The commonwealth appeals.

The facts on which the prosecution is based are admitted, and are in brief as follows:

Between the 1st and 9th days of June, 1914, Harry Smith and three of his friends arranged to go camping. They made up a fund to purchase beer for the trip. The beer was ordered from the City Bottling Works of New Albany, Indiana, with directions to consign it to defendant. The beer arrived on June 11, 1914. The expenses incident to the purchase and transportation of the beer were paid by Smith and his three friends. When the beer was received, it was carried to a room in the rear of the office of a local physician, and in the latter's control, and placed there with his conis admissible against the defendant in the trial of cases involving violations of the prohibitory statute. But such possession alone is insufficient to sustain a conviction." On the contrary, in State v. Phillips, Miss. post, 530, 67 So. 651, a statute providing "that no intoxicating liquor within the meaning of this act shall be kept in any locker or other place in any social club or organization for use therein, and all persons carrying such liquor to such club or locker for use therein or keeping the same for such use, shall be guilty of a vio lation of this act," was sustained as a valid exercise of the police power. It is stated that this statute does not deprive the members of the club or social organization affected, of the equal protection of the law.

The earlier cases on the power to prohibit or restrict one using intoxicating liquor or having the same in his possession for his own use are discussed in the note to Com. v. Campbell, 24 L.R.A. (N.S.) 172. W. A. E.

sent. The fishing trip was abandoned, and the parties proceeded to drink, and invite some of their friends to drink, the beer. The last few remaining bottles were drunk on June 16th, after the act above set out went into effect. No part of the beer was taken from the room where it was placed. No person became intoxicated from drinking any of the beer, and no person other than Smith and his three friends contributed any portion of the expense incurred in purchasing the beer or in its preparation for

use.

It will be observed that § 4 of the act in question makes it unlawful for any person to keep, store, or possess intoxicating liquors in any room, building, or structure other than the private residence of such person, which is not used as a place of public resort, in prohibited territory. In view of the evident purpose of the legislature, as expressed in the title to the act, it is insisted that the words, "for sale," should be interpolated in § 4, and the act construed so as to prohibit the possession for sale of intoxicating liquors in any room, building, or structure other than the private residence of the person possessing them. It is also argued that where an act is susceptible of two constructions, one of which will render the statute unconstitutional and the other constitutional, that construction which sustains the constitutionality of the act should be adopted. It must be remembered, however, that we al ready have in force a statute making the possession of intoxicating liquors for the purpose of sale in local option territory unlawful. In view of this fact, and of the further fact that, if the words, "for sale," are interpolated in § 4, the necessary effect of that section will be to give persons the right to keep intoxicating liquors at their private residences for the purpose of sale in prohibited territory, we conclude that the section in question is not susceptible of such a construction, but that the legislature intended to make the possession of intoxicating liquors in prohibited territory at any other place than the rivate residence of the person possessing the same unlawful, irrespective of any purpose or intention to sell the same.

In view of this conclusion, it is necessary to determine whether or not under our Constitution the legislature has this power. For the commonwealth it is insisted that the act is aimed at the bootlegger, who generally hides or secretes intoxicating liquors at places other than his own residence, and in order to prevent sales by the bootlegger it is within the police power of the legislature to make unlawful the possession in prohibited territory of intoxicating

liquors at places other than the private residence of the person owning the same. On the other hand, it is insisted for the defendant that under our Constitution the police power of the general assembly is somewhat restricted, and that the broad power of prohibiting or limiting the place of possession does not exist, unless the possession is for an unlawful purpose. A question very similar to the one here involved was before this court in the case of Com. v. Campbell, 133 Ky. 50, 24 L.R.A. (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. 159. There the city of Nicholasville, where local option prevailed, enacted an ordinance making it unlawful for any person to deliver or distribute in the town of Nicholasville any intoxicating liquors; provided, however, that any person might bring into the town on his person and as his personal baggage and for his own use such liquors in quantities not exceeding 1 quart. The ordinance was held unconstitutional, on the ground that the police power did not extend to the deprivation of a citizen of his right to have intoxicating liquors in his possession for his own use, and on the further ground that our Constitution deprives the legislature of the power of forbidding citizens to have such liquors in their possession for their own use. In discussing this question the court said: "Now, can it be contended with any show of reason that the framers of the Constitution intended to leave the question of the retailing of liquor in a given district to a vote of the majority of the qualified voters in the district, and yet leave it in the power of the legislature upon its own motion to prohibit the possession of liquor by the citizen? Before the present Constitution, it was competent for the legislature to prohibit the sale of liquor by retail in any county, town, or district without any vote being taken by the citizens, or without giving them any voice in the matter; but no one doubts that, under the present Constitution, it is not competent for the legislature, without a vote of the citizens, to declare the retailing of liquor in any part of the state unlawful. How vain it would be, then, for the framers of the Constitution to thus take from the legislature the power to regulate the retailing of liquor, and place that question within the competency of the qualified voters, and yet leave within the competency of the legis lature the greater power of prohibiting the citizen either from possessing liquor or using it for his own benefit or comfort. It is self-evident that, if the legislature may pass a general law prohibiting any citizen from possessing or using liquor in any quantity, this would in itself be the most

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 faults or weaknesses, which he keeps to himself, and which do not operate to the detriment of others, the state as such has

no

concern. In other words, the police power may be called into play when it is reasonably necessary to protect the public health or public morals or public safety. The mere fact that the legislature sees fit to enact a statute ostensibly for the purpose of promoting such ends is not conclusive of the question. When, therefore, the statute purporting to have been enacted to protect the public health or public morals or public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court so to adjudge, and thereby give effect to the Constitution. State v. Williams, supra; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273. We have in force a statute prohibiting the possession of intoxicating liquor in prohibited territory for the purpose of sale. Under this statute very slight evidence is sufficient to secure a conviction. Where, therefore, the purpose of the owner is unlawful, the above statute is effective. Here it is sought to go one step further, and make the possession for an innocent purpose considered from the standpoint of the police power as much of an offense as if the possession were for an unlawful purpose.

Manifestly, if the legislature has the power to prohibit such possession at places other than one's private residence, then it has the like power to prohibit such possession even at a private residence, and this is exactly what was held in Com. v. Campbell, supra, could not be done. There must of necessity be limits beyond which the legislature cannot rightfully go. We think that limit is reached when it prohibits such possession for sale or other unlawful purpose. It cannot go further and prohibit such possession, or limit the place of possession, where the liquors are intended for one's own use, and therefore for a purpose with which the police power of the state is not concerned. It will not

do to say that, because some persons may evade the law as it now exists, others who have no intention of violating the law should be denied their constitutional rights.

An assessment for taxes made in the name of one other than the record owner, and a forfeiture or sale of property so assessed, prior to 1890, was an absolute nullity, not curable by prescription.

Thibodaux v. Keller, 29 La. Ann. 508; Le Blanc v. Blodgett, 34 La. Ann. 108; Guidry v. Broussard, 32 La. Ann. 924; Delaroderie v. Hillen, 28 La. Ann. 537; Martin V. Southern Athletic Club, 48 La. Ann. 1053, 20 So. 181; McWilliams v. Michel, 43 La. Ann. 988, 10 So. 11; Wilbert v. Michel, 42 La. Ann. 856, 8 So. 607; Kearns v. Collins, 40 La. Ann. 455, 4 So. 498; Maspereau v. New Orleans, 38 La. Ann. 400, 58 Am. Rep. 194; Lague v. Boagni, 32 La. Ann. 914; Fix v. Dierker's Succession, 30 La. Ann. 176; Hayes v.