the machine affects the value of the right great cost from the class for whose needs t use it upon the public highway. Even they are essential, and whose operations though this act does not fairly distribute over them are peculiarly injurious." the burden of building and maintaining roads among the owners of motor vehicles used upon them, or between that class of persons and other citizens of the state, it may be said with equal force that ever since the dawn of civilization the problem of raising revenue has been with governments, as with individuals, one of the chief causes of concern, and that a scientific and satisfactory solution of it has never been reached. If chapter 179 of the Session Laws of 1913 is unskilfully drawn, or the plan to raise revenue therein provided is unscientific, or for any other reason unsatisfactory, recourse for its correction must be had to the legislature, and not to the courts, for this branch of the government cannot declare an act of the legislature unconstitutional, unless it violates some provision of the Constitution. The supreme court of New Jersey, in the case of Kane v. State, 81 N. J. L. 594, L.R.A. 80 Atl. 453, Ann. Cas. 1912D, 237, in upholding a statute much like the one under consideration, said: "The imposition is a license or privilege tax charged in the nature of compensation for the damage done to the roads of the state by the driving of these machines over them, and is properly based, not upon the value of the machine, but upon the amount of destruction caused by it." In the recent decision by the Supreme Court of the United States in the case of Hendrick v. Maryland, 235 U. S. 610, 59 L. ed., 35 Sup. Ct. Rep. 140, a case closely resembling this in many important particulars, the opinion delivered by Mr. Justice McReynolds is, in part, as follows: "The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads, the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the states for better facilities, especially by the ever-increasing number of those who own such vehicles. As is well known, in order to meet this demand and accommodate the growing traffic, the state of Maryland has built, and is maintaining, a system of improved roadways. Primarily for the enforcement of good order and the protection of those within its own jurisdiction, the state put into effect the above-described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at Idaho is a mountainous state, wherein vast sums of money have been, and still greater sums must in the future be, expended in the construction and maintenance of public highways. The motor vehicle is a conveyance requiring a different and better class of roads than ordinary traffic has heretofore demanded. These motor vehicles have been found to be exceedingly destructive of the highways, and particularly is this true of those propelled by engines of great power, especially when driven at a high rate of speed. It seems probable that by reason of these conditions the legislature enacted said chapter 179, but, whatever the reason for its enactment may have been, said chapter is not repugnant to the provisions of the Constitution. The order of the District Court granting the writ of habeas corpus and discharging the defendant from custody is reversed, with instruction to said court to quash the writ and to remand the respondent to custody. A PPEAL by plaintiff from a judgment of the District Court for Dickinson County in favor of defendants in a proceeding to enjoin them from interfering with the traffic to and from plaintiff's business and to recover damages resulting from the deprivation of the use of the streets. versed. The facts are stated in the opinion. Messrs. David Ritchie and G. A. Spenfor appellant: cer, An ordinance which prohibits the use of streets entirely to any legitimate mode of travel is beyond the power of the city, and therefore void. Bogue v. Bennett, 156 Ind. 478, 83 Am. St. Rep. 212, 60 N. E. 143; McCarter v. Ludlum Steel & Spring Co. 71 N. J. Eq. 330, 63 Atl. 761; Ex parte Epperson, 61 Tex. Crim. Rep. 237, 134 S. W. 685; McConvill v. Jersey City, 39 N. J. L. 38. Johnston, Ch. J. delivered the opinion of the court: In an injunction proceeding, Oscar W. Brown attacked the validity of an ordinance of the city of Abilene which purports to prohibit the driving of "any engine or Re-heavy machinery upon the paved streets of the city of Abilene," and prescribes a fine not exceeding $50 for its violation. He also asked a recovery of damages for the loss sustained by reason of being deprived of the use of the streets. In his petition he alleged that he was conducting a machine shop in the city, which was so situated that he is unable to reach the railway stations with engines or heavy machinery, except by passing over paved streets, and that, unless patrons are permitted to use these streets in order to bring in and take from the shop traction engines and other heavy machinery, he will be unable to carry on his business; that his machine shop will be a total loss for the purposes for which it was acquired; and that it has already resulted in damage to him to the extent of $1,000. There was an allegation that since the passage of the ordinance in June, 1913, the officers of the city had forcibly prevented him from taking machinery from the shop across Third street, and that it is impossible for him to reach the depots of the railways in carrying on his business without crossing that street. A demurrer to his petition was sustained by the trial court, and the main question presented on his appeal is whether the ordinance is so unreasonable Injunction is the proper remedy. Sylvester Coal Co. v. St. Louis, 130 Mo. 323, 51 Am. St. Rep. 566, 32 S. W. 649; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 42 L.R.A. 696, 68 Am. St. Rep. 155, 51 N. E. 758; Spiegler v. Chicago, 216 Ill. 114, 74 N. E. 718; Milwaukee Electric R. & Light Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; Joseph Schlitz Brewing Co. v. Superior, 117 Wis. 297, 93 N. W. 1120; Glucose Ref. Co. v. Chicago, 138 Fed. 209; Old Colony Trust Co. v. Wichita, 123 Fed. 762; Hutchinson v. Beckham, 55 C. C. A. 333, 118 Fed. 399; Carroll v. Greenwich Ins. Co. 199 U. S. 401, 50 L. ed. 246, 26 Sup. Ct. Rep. 66. Mr. C. S. Crawford, for appellees: The ordinance is not void. Chicago v. Walden W. Shaw Livery Co. 258 Ill. 409, 101 N. W. 588; Versailles v. Kentucky Highland R. Co. 153 Ky. 83, 154 S. W. 388; Wilcoxon v. Harrison, 32 Ga. 480; Hathaway v. Mitchell, 34 Mich. 164; Sparhawk v. Union Pass. R. Co. 54 Pa. 401; Mason v. Rollins, 2 Biss. 99, Fed. Cas. No. 9,252. The petition does not state facts sufficient to invoke the aid of a court of equity. State ex rel. Thomas v. Snelling, 71 Kan. 504, 80 Pac. 966; Brunstein v. Ft. Collins, 53 Colo. 254, 125 Pac. 119; Phillips v. Stone Mountain, 61 Ga. 386; Poyer v. Des Plaines, 123 Ill. 111, 5 Am. St. Rep. 494, 13 N. E. 819; Kansas City Cable R. Co. v. Kansas City, 29 Mo. App. 89; Moss & Co. v. McCarthy, 191 Fed. 202; Arbuckle v. Blackburn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616; Paul v. Washington, 134 N. C. 363, 65 L.R.A. 902, 47 S. E. 793; 2 High, Inj. 2d ed. § 1244. Mr. S. S. Smith also for appellees. as to be invalid. Power is not expressly conferred on cities of the second class to prohibit the use of the streets for any particular kinds of travel and transportation, but under the general welfare clause it is doubtless within the power of the city to make reasonable regulations as to the use of streets, and thus provide for the safety and convenience of travel and against unnecessary injury to the streets used. It is competent for the city to regulate the weight of loads that shall pass over the paved streets, and to prescribe the width of tires of vehicles carrying heavy loads. It has been determined that municipalities may confine the passage of heavily loaded traffic to certain streets and exclude it from others, but the a citizen of access to his home or business regulation must not be such as will deprive house, nor from all use of the streets for any of the recognized means of travel. Notes in 31 L.R.A. (N.S.) 682, 45 L.R.A. (N.S.) 1152, and 51 L.R.A. (N.S.) 1203. In Bogue v. Bennett, 156 Ind. 478, 83 Am. St. Rep. 212, 60 N. E. 143, it was held that a city ordinance prohibiting the running of traction engines or other vehicles not pro ordinance is therefore unreasonable, and must be held to be void. It is next contended that the equitable remedy sought by appellant is not available to him, as the invalidity of the ordinance in question could be presented as a defense in a criminal prosecution for the violation of the ordinance. Ordinarily injunction will not lie to prevent the prosecution of criminal actions, but this proceeding is not brought for that purpose, and in his prayer the appellant does not ask for such relief. pelled by animal power over the streets and alleys of a city was unreasonable, and therefore void. In State v. Boardman, 93 Me. 73, 46 L.R.A. 750, 44 Atl. 118, the validity of an ordinance which provided that teams with loaded wagons should be confined to a certain part of a street was challenged. The court held that a traveler is not entitled to the whole width of a street for his accommodation, but "is entitled to a reasonably safe, convenient, and practicable opportunity for travel and passage." p. 78. It was there decided that a regulation He asks for damages resulting to him and restricting the travel of heavily loaded his business from the deprivation of the vehicles to a part of the street would, in use of the streets, and also asks that the many cases, be both reasonable and salu- city and its officers be enjoined from intertary, but that, if the part of the street open fering with the traffic to and from his busito travel for such vehicles was out of repair ness. The proceeding does challenge the or in such a condition as to be impassable validity of the ordinance because the offifor loaded vehicles, it would operate to de-cers, who are preventing him from using prive those who had occasion to use the the streets leading to his machine shop, street of their right to use it for the pur- justify their action under the ordinance, pose of travel. It was said that "for such but it does not appear that any prosecua by-law, then, to be reasonable and valid, tions have been begun, and the appellant with reference to such a way and in such does not ask that prosecutions be enjoined. a locality as in this case, that portion of An exception is made to the rule invoked the street which may be used by heavily by appellee, where the restraint of the crimloaded vehicles must be reasonably suitable inal prosecution is only incidental to the for the purpose; and the by-law will be protection of personal and property rights. valid or invalid, depending upon whether, Davis & F. Mfg. Co. v. Los Angeles, 189 that portion of the way, to which such U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Rep. vehicles are restricted, is or is not reason- 498; Dobbins v. Los Angeles, 195 U. S. 223, ably suitable for the purpose." p. 79. 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Coal & Coke R. Co. v. Conley, 67 W. Va. 129, 67 S. E. 613; Bluefield Water Works & Improv. Co. v. Bluefield, 69 W. Va. 1, 33 L.R.A. (N.S.) 759, 70 S. E. 772; Atlanta v. Gate City Gaslight Co. 71 Ga. 106; Cuba v. Mississippi Cotton Oil Co. 150 Ala. 259, 10 L.R.A. (N.S.) 310, 43 So. 706; Austin v. Austin City Cemetery Asso. 87 Tex. 330, 47 Am. St. Rep. 114, 28 S. W. 528; note in 25 L.R.A. (N.S.) 193. The streets are provided for the public in general for purposes of travel and transportation, and the appellant, who is engaged in a legitimate business, is entitled to a reasonable use of the streets in taking traction engines and heavy machinery to and from his shop. Traction and other motor wagons are not illegal vehicles, and an ordinance which deprives him of the use of the streets for such vehicles, in order that he and his patrons may reach his shop, is not In this action the appellant is seeking to reasonable. Undoubtedly a regulating ordi- protect his personal property rights and nance may be framed under which appellant to prevent the destruction of his busimay use some of the streets or parts of ness. The deprivation of which he comthem for the necessary traffic to and from plains shuts him out from carrying on his his shop, and under such restrictions as business, and he is not required to wait for will protect the streets and prevent inter- a prosecution to be commenced nor to proference with the rights of others traveling voke an arrest in order to obtain relief over them. Under the allegations of the from the interference with and destruction petition the ordinance operates, not as a of his business. Indeed, the defenses that regulation, but as an absolute prohibition, he might make in possible prosecutions folof a recognized use of the public streets. lowing unsuccessful attempts to conduct A class of traffic which is legal, and which his business would not have been an adeordinarily passes over highways, is prohib-quate remedy. However, as we have seen, ited, so far as appellant's business is concerned, and he is not only deprived of the use of the streets of the city in conducting a legitimate business, but the result is the destruction of the value of his property for the purposes for which it was acquired. The the principal purpose of the action is not the injunction of criminal proceedings. The decision of the District Court sustaining the demurrer to appellant's petition will be reversed, and the cause remanded for further proceedings. KENTUCKY COURT OF APPEALS. J. C. FROGG, Appt., V. COMMONWEALTH OF KENTUCKY. (163 Ky. 175, 173 S. W. 383.) Adams Exp. Co. v. Crigler & C. Co. 161 Ky. 89, 170 S. W. 542. The right to possess the United States tax stamp, and to possess and receive the liquors, notwithstanding the dry territory, made the sale of the liquors a necessary incident thereto. Brown v. Maryland, 12 Wheat. 419, 6 Appeal search warrant — absence of L. ed. 678; 26 Cyc. 532. affidavit. 1. The objection that a warrant for search of premises for intoxicating liquors was not supported by affidavit as required by statute cannot be raised for the first time on appeal from a conviction for wrong ful possession of the liquors found. Intoxicating liquor shipment to other state ment. possession for 2. One having possession of intoxicating liquor to be delivered to carriers for shipment to other states upon receipt of the price is within the operation of a statute providing for punishment of one who has such liquors in possession for purpose of sale. A (February 25, 1915.) PPEAL by defendant from a judgment of the Circuit Court for McCreary County convicting him of having in his possession intoxicating liquors for sale in violation of law. Affirmed. The facts are stated in the opinion. Messrs. J. W. Rawlings, Robert Harding, and L. G. Campbell, for appellant: It was no violation of the local option law of McCreary county for defendant to have the liquor in his possession in the manner and way he obtained possession, because he made it, and his possession of it was acquired in a perfectly legitimate way; and the statute under which the warrant was drawn does not apply to distillers, whose possession of liquor is obtained by making it in a legal way. Adams Exp. Co. v. Com. 154 Ky. 462, 48 L. R. A. (N. S.) 342, 157 S. W. 908; Martin v. Com. 153 Ky. 784, 45 L.R.A. (N.S.) 957, 156 S. W. 870. Mr. W. W. Watts, amicus curiæ: Kentucky distillers, wholesale dealers and brewers, including those in dry territory, may now ship intoxicating liquors into dry territory in Kentucky, if properly marked as required by the act commonly called the shipping bill. The liquors were being prepared for shipment to purchasers in Tennessee and marked for personal use. Such shipment was permitted in Kentucky under the shipping bill, and the transaction was lawful as a matter of interstate commerce. Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357; Blake v. McClung, 172 U. S. 239, 43 L. ed. 432, 19 Sup. Ct. Rep. 165; 1 Willoughby, Const. 214; State v. J. W. Kelly & Co. 123 Tenn. 556, 36 L.R.A.(N.S.) 171, 133 S. W. 1011. Messrs. James Garnett, Attorney General, and Robert T. Caldwell, Assistant Attorney General, for the Commonwealth: The sufficiency of the warrant cannot for the first time be raised in the court of appeals. Baldridge v. Com. 28 Ky. L. Rep. 33, 88 S. W. 1076; Cheek v. Com. 162 Ky. 56, 171 S. W. 998. The transaction set out in the stipulation constitutes an offense. Adams Exp. Co. v. Crigler & C. Co. 161 Nunn, J., delivered the opinion of the court: The county judge issued a warrant for the arrest of the appellant, John Frogg, charging him with unlawfully having in his possession intoxicating liquors in McCreary county for sale in that county, The warrant also comcontrary to law. manded the arresting officer to search the residence and other premises of the appellant and seize and take possession of any intoxicating liquors there found, “and if you find such liquors you are commanded to arrest the said Frogg, and bring him before to be dealt with according to law." Whisky me or some magistrate of McCreary county, was found, and Frogg was arrested, and, on a trial before the county judge, he was convicted and fined $50 and sentenced to con finement in the county jail for ten days. | the packages to certain named parties living He appealed from this judgment to the circuit court, and there the case was tried upon an agreed statement of facts, and the same judgment rendered as in the county court. Before coming to the merits of the case, we will deal with an objection to the warrant. That part of the warrant directing a search of the premises is authorized by chapter 78 of the Acts of 1914, being an "Act Providing for the Search of Premises in Local Option Territory," and approved March 21, 1914. Any judge or justice of the peace, under that act, when affidavits of three or more reputable persons are filed with him, may, by his warrant, cause any house in local option territory to be searched for the detection of intoxicating liquors kept there for purposes of sale, and arrest the person in charge of the house. and residing in the state of Tennessee, and four of the packages were already marked by Frogg and ready for shipment to Tennessee. In addition to the four packages or bottles of whisky labeled and ready for shipment, the officers seized about 10 gallons of whisky yet in the original barrel. This residue was intended to be put in packages of less than 5 gallons and marked for "personal use" and shipped by way of the Southern Express Company to consignees in the state of Tennessee. Had it not been seized, the whisky would have been shipped to purchasers in the state of Tennessee, and they had already mailed to him, and Frogg had received, their orders containing the money in payment for it. Frogg had not sold or had in his possession for sale by retail (that is, in quantities less than 5 The record does not show whether the war- gallons) whiskies or other intoxicating lirant was supported by the affidavits, and ap-quors in McCreary county in any manner pellant says that the warrant was issued without the affidavits, and was therefore an unlawful act upon the part of the county judge. For the purpose of this case, conceding that the judge acted unlawfully in issuing the warrant without the affidavits. yet if the party was in fact guilty of the offense charged, the absence of affidavits to support the warrant cannot serve as a defense in the prosecution. No demurrer or other step attacking the sufficiency of the warrant was interposed in either court below, and no reference is made to it in the motion for a new trial preparatory to an appeal to this court, so that, in any event, it is too late now to raise the question. Baldridge v. Com. 28 Ky. L. Rep. 33, 88 S. W. 1076; Cheek v. Com. 162 Ky. 56, 171 S. W. 998. The real question presented is whether, under present state and Federal laws, the proprietor of a distillery situated in prohibition territory in Kentucky may have in his possession whisky for purpose of sale by retail (that is, in quantities less than 5 gallons) to mail order customers residing in another state, who forward the purchase price with their order to the distiller at his place of business. Stating the facts in an abbreviated way, it appears that Frogg owned and operated a registered distillery in McCreary county, which was local option territory, and had in his possession, and at his residence, United States government license authorizing him to retail liquors of his own manufacture, and that, at the time he was arrested, he had withdrawn from his distillery, and taken to his residence near by, 13 gallons of whisky, and was there putting it up in packages (that is, in bottles containing less than 5 gallons each), and preparing them for shipment in except as above stated. As already indicated, the offense charged is that of having in possession liquors for sale in local option territory. The 1914 act of the legislature provides that one who has paid United States internal revenue tax, permitting the sale of any such liquors, shall be deemed to have paid the tax with the intent to violate the prohibition laws, but the act especially exempts distillers from that rule; that is, possession by a distiller of government license is not presumptive evidence against him that the liquors in his possession are for purposes of sale in violation of law. The law that appellant is charged with violating, and of which he is not presumptively guilty by having in his possession a government license, is subsection 2 of § 2557b of the Kentucky Statutes, which is as follows: "It shall be unlawful for any person to sell, lend, give, procure for, or furnish to another, any spirituous, vinous or malt liquors, or to have in his possession spirituous, vinous or malt liquors, for the purpose of selling them in any territory where said act is in force, and any person so offending shall be fined not less than fifty nor more than one hundred dollars, and imprisoned not less than ten nor more than fifty days. The possession of a United States special tax stamp (commonly called United States license) for carrying on the business of a retail dealer in spirituous, vinous or malt liquors, or the having of such tax stamp or license stuck up at the place of business in such territory shall be prima facie evidence of guilt under this section." In other words, the 1914 act, as to distillers, repeals the last paragraph of the section quoted, and which has reference to prima facie evidence of guilt. But the li |