In State v. Gilman, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. 283, the supreme court of West Virginia was passing upon the validity of a statute of that state which denounced as a misdemeanor the keeping in possession of spirituous liquors of another by any person not the owner, who had not obtained a license therefor. The decision went off upon the court's interpretation of the state Constitution, which declared “laws may be passed regulating or prohibiting the sale of intoxicating liquors." The court invoked the maxim, Expressio unius est exclusio alterius, holding that, the statute not having reference to the prohibition or sale of liquors, the legislature was without power to pass the statute. The court also held that the statute could not be upheld as coming within the police power of the

is the strongest case decided by any court in favor of appellee's view of the law. In other words, this case carries the sanctity of the right to possess and use property much further than has any other court of last resort. This case was decided by a divided court; and, with the utmost deference to the opinion of the majority, we think the dissenting opinions are more convincing than the opinion of the court. The court in that case had under consideration an ordinance of the city of Bessemer, the 1st section of which is in these words, viz.: "Be it enacted by the city council of Bessemer as follows: That it shall be unlawful and constitute a violation of this ordinance, if any person, firm, or corporation in the city of Bessemer, have or keep on storage or deposit, or have therein, any vinous, spirituous, or malt liquors, or intoxicating bev-state. We do not consider this decision of erages [or any beverage], which is a product of maltace or gencase as a substantial ingredient, in or at any place where any drinks or beverages are sold or kept for sale."

The 2d section of the ordinance provided that the above section should not apply to druggists of the class described thereby.

much value in this case, because the statute there reviewed is radically and substantially different from the statute we are considering, and besides, the question before that court was complicated by the Constitution of West Virginia.

Ex parte Brown, 38 Tex. Crim. Rep. 295, 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 questhe 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 pursued by the legislature. Whatever may be pose, however innocent, of intoxicating liquors and beverages in places which are innocent in themselves."

said as to the power of the legislatures of other states, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method; at least, so far as local-option territory is concerned."

It seems clear to us that the court entirely underestimated the ability and cunning of the average illicit dealer in intoxicating beverages. The city council was much wiser, in our opinion, to the devious ways of this class of criminals. Given a "pop stand" or a soda fountain the blind tiger is practically immune from prosecution under 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 pointed out with precision wherein the court erred, when it said that this ordinance sustains no reasonable relation to the prohibition law.

The dissenting opinion, by Judge McClellan, points out the reasonable relation of the ordinance to the prohibition law in a much clearer way than we can hope to do, and we refer to his opinion and adopt the

same as our own.

dorsing the same. The two courts were in accord, because of the similarity of their state Constitutions. It will be seen that the Texas case is expressly confined to provisions of the Constitution of Texas, and what would have been the decision of that court had there been no such constitutional provision it is, of course, impossible to conjecture.

State v. Goodwill, 33 W. Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S. E. 285, we

do not believe has any application here, except as a general statement of the principle requiring classification of persons or corporations to be affected by the statute to be reasonable, and not discriminatory, which principle we will discuss later.

State v. Williams, 146 N. C. 618, 17 L.R.A. (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562, a North Carolina case, we here copy the syllabus, which indicates the question decided, viz.: "Spirituous, malt, or vinous liquors are property within the meaning of the Constitution, when its manufacture or sale is lawfully prohibited by statute; and when the legislature makes it an indictable offense to carry more than a certain quantity into a specified county, within a limited time, prohibiting its sale and not prohibiting its use, but authorizing its use for certain purposes, it is unconstitutional, for that it is a taking of property without due process of law, and not within the police power of a state."

laws, it could not 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 a majority of the voters, and yet leave it in the power of the legislature upon its own motion to prohibit the possession of liquor by the citizen. True, the court said much more than this. The court discussed the natural and inalienable rights of man, but after they reached the conclusion that the legislation was in violation of the state Constitution, referring to the particular power under review, there was nothing more to be said.

It is claimed by all the cases wherein the precise point now before this court was involved the power to enact legislation of this character was denied. We have endeavored to analyze the cases relied on to sustain this claim, and we believe no court (except possibly the Alabama and North Carolina courts), has gone so far as to condemn the legislation challenged in the pres

Justice Holmes in Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1064, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487, thus defines police power: "It may be said in a general way that the police power extends to all the great public needs. . . . It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

This case was also decided by a divided court. We mention this fact for the pur-ent case. pose of showing that decisions along this line have usually found some judge of the court who dissents. We thing the dissenting opinion in this case propounds a question hard to answer, and we quote the same, because, in our opinion it demonstrates the fallacy of the court's reasoning, viz.: "In limiting each person to a half gallon per day for his own use (for the law permits no sale) the legislature was not niggardly. Besides, if the manufacture, though exclusively for one's own use and out of one's own apples and peaches, in the county, can be forbidden by statute without breaking the Constitution, why cannot the importation of the same article across the county line, in a greater quantity than a half gallon per day, even for one's own use, be prohibited by the same power? The truth is that, the legislature having jurisdiction of the subject, the limitations upon its exercise rest in the wisdom and sound judgment of the legislature, subject only to review by the people, not by the courts."

The Supreme Court of the United States has uniformly held that the adoption of the 14th Amendment of the Constitution did not have the effect of denying to the state power to prescribe "regulations to promote the peace, health, morals, education and good order of the people."

It may be said that the presence and use of intoxicating liquors at a place where a number of people gather for the enjoyment of social intercourse would have a tendency 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 no doubt in the legislative mind, in so far, at least, as the statute might apply to the class of social clubs organized and conducted for the encouragement of social intercourse, and for the improvement and enjoyment of their fortunate members.

There was another thought which probably prompted the legislation in question. It is well known to those familiar with the enforcement of the laws against the sale of intoxicants that many schemes, artifices, and devices have been originated for the purpose of evading the law. Clubs and lodges have been organized for no other purpose than to sell intoxicating liquors. The conscienceless promoters often select names for their club or lodge which suggest to the uninitiated that these organizations have no purpose other than to assist the moral and religious element of the community in every movement having for its purpose the moral welfare of the community.

To check the pernicious and cunning activities of the professional criminal, the man who, once a blind tiger, is always a blind tiger, the legislature adopted a broad classification to cover any and all social clubs. This was necessary to make the statute at all efficient. In this statute the limitation upon the use of liquor is confined to social clubs. The owner may carry it anywhere else and use it to any extent. There is no attempt to destroy the personal liberty of the owner to enjoy the seductive influence of liquor, or even to get drunk. So far as this statute is concerned one may own any amount of liquor, use it as he sees fit, and even carry it anywhere except to a social club or organization. Therefore it is said the statute denies the owner, as a club member, the equal protection of the laws.

orous and unreasoning mob when we indorse a law as within the police power of the state, when the Supreme Court of the United States says this power exists whenever the "preponderant opinion and prevailing morality" believes this law necessary to the public welfare.

We quote the words of an unknown writer as fairly representative of the present "prevailing morality" of the people of this state: "Whisky is a good thing in its place. There is nothing like it for preserv ing a man when he is dead. If you want to keep a dead man, put him in whisky; if you want to kill a live man, put whisky in him."

Is the writer a wag or a philosopher? This question will be answered by "dyed in the wool 'individualists'" but one way, but we apprehend that their answer would not be approved in a state-wide primary.

There is abundant authority, we think, for our view. We will now cite some of the cases which are in line with our ideas of the law. These cases are collated by the annotator of Eidge v. Bessemer, reported in 26 L.R.A. (N.S.) 395 et seq.: "Thus, in Selma v. Brewer, 9 Cal. App. 70, 98 Pac. 61, the court said that it was of opinion that a municipal ordinance declaring it unlawful for any person, firm, corporation, company, club, or association to have, keep, possess, provide, or store' any spirituous, etc., liquors within a town, but permitting a licensed pharmacist to sell the same, taken as a whole, is consistent with the provisions of the Constitution authorizing any city to make and enforce police regulations not in conflict with general laws, and represents only a proper exercise of the power expressly vested by that instrument in cities, counties, towns, and townships.

"And an ordinance prohibiting the owner 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 keeping thereof elsewhere is not restricted. State v. Clark, 28 N. H. 176, 61 Am. Dec. 611. See the quotation from this case in the dissenting opinion of McClellan, J., in Eidge v. Bessemer.

"And it was held in Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096 (one justice, however, dissenting), that on a prosecution for the violation of a law declaring it unlawful for anyone to keep on hand at his place of business any intoxicating liquor, evidence as to the respondent's purpose in keeping it was properly excluded as irrelevant and immaterial.

"Thus it was held in Easley v. Pegg, 63 S. C. 98, 41 S. E. 18, that a municipal ordinance enacted under the general welfare clause of a municipal charter, prohibiting the storing or keeping possession of spirituous, etc., liquors, except as provided by the state dispensary law, was valid, it not being necessary that such liquor should be kept for an unlawful purpose; the offense being complete if there is a storing or keeping of liquor, which is contraband under the dispensary law.

to be borne in mind that delegated powers
are to be strictly construed and reasonably
exercised, we think the passage of the ordi-
nance in question
is not an unrea-
sonable exercise of the police power, and is
fully warranted by the general welfare
clause.""

We do not think that this act deprives members of social organizations of the equal protection of the law. It seems to us that the classification of the organizations which would come under the regulations adopted by the legislature is entirely reasonable. It may be said that business, benevolent, and other organizations which might be mentioned, were not put under the statutory regulations, for the reason that ordinarily liquors are not carried into the places where such organizations assemble. There being no public necessity for prohibiting members of the organizations not mentioned in the statutes from carrying liquors to the meeting places, the legislature did not attempt to remedy a nonexistent evil.

Before leaving this subject, we venture to say that "social clubs," by this statute, are selected as the special favorites rather than as the victims of the law. While pri

terest of the public welfare and to effectuate the purpose of the legislature to make the sale of intoxicating liquors more difficult, yet it is conceivable that the immediate and direct result of the enforcement of the statute will be of special benefit to social clubs.

"And in Wright v. Macon, 5 Ga. App. 750, 64 S. E. 807, where a municipal ordi-marily the statute was enacted in the innance, declaring it unlawful for any club, corporation, or association of persons, or number of persons, whether incorporated or otherwise, to keep, or permit to be kept, in any room or place, or in any place connected directly or indirectly therewith, in which members of such club, corporation, association of persons, or number of persons, assembled, any alcoholic, spirituous, etc., liquors, under which it was sought to prosecute one who kept liquor owned by him and intended for his own personal use, in a locker of a club connected with lodge rooms of a fraternal society to which he belonged, was held void, solely on the ground that the state had already regulated and licensed such clubs, the court said that 'but for the passage of the license tax by the state, there could be no question in our minds that [such ordinance could have been adopted under the general welfare clause of its charter]. It is evident that the general policy of the state in the passage of the general prohibition act of 1907 was to stop, or at least to decrease, the drinking of intoxicating liquor, and, the ordinance now before us being in aid of that general policy, we think it could be extended to preventing the assembling of liquors at a place where drinking, instead of being decreased, would be increased, al-'

Lastly, it is contended that the act in question is unconstitutional because it contravenes § 71 of our Constitution. All questions of this kind are foreclosed by the decision in Jackson v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213. If the object of prohibition of the sale of intoxicating liquors is not to prevent, as far as may be, the drinking of such liquors, then it is difficult to justify the laws prohibiting the sale. Of course, the typical public saloon is demoralizing, but there would be no practical difficulties in the way of so regulating the saloon as to minimize all of the evils which flow from the saloon, except the evils which flow from the drinking of intoxicating beverages. If it is not a menace to the health, morals, welfare, and peace of the public for men and women to drink alcoholic liquors, it would seem that the public could have no interest in prohibiting the sale. The ultimate purpose and end of prohibition is to prevent the use of 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 demands the final step, the way will be found to accomplish the end.

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.

The facts are stated in the opinion. Messrs. McGilton, Gaines, & Smith, for Supp. 542, 117 N. Y. 641, 22 N. E. 1131; appellant:

Letton, J., delivered the opinion of the court:

Note. The doctrine of attractive nuisance, as applied to road vehicles, is discussed in the note to Bruhnke v. La Crosse, 50 L.R.A. (N.S.) 1147. And see references therein to other notes on the doctrine of at- | $3,000. Defendant appeals.