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 beverages [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.

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 state. We do not consider this decision of 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."

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 liquors. It would seem clear to us that violators of the law would have filed a dissenting 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.

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."

The court then quoted in full the opinion of the supreme court of West Virginia in State v. Gilman, supra, adopted and indorsing 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 offerse 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 We have enthis character was denied. deavored 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

ent case.

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 "It may be said in a general way power: that the police power extends to all the . . It may be put great public needs. 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 purpose 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 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 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."

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 in-ever the "preponderant opinion and prevailtercourse, and for the improvement and enjoyment of their fortunate members.

"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 clause.""

"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.

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 effectuato 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 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 dehim 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 preponderant and prevailing morality of the nation believes that the public welfare demands the final step, the way will be found to accomplish the end.

The judgment of the trial court sustaining the demurrer to the affidavit is reversed, and the cause remanded for trial on its merits.

NEBRASKA SUPREME COURT.

HERMAN ZIGMAN, Admr., etc., of Philip

Zigman, Deceased,

V.

462, 45 N. Y. Supp. 277, 3 Am. Neg. Rep. 251; J. I. Case Threshing Mach. Co. v. Burns, 38 Tex. Civ. App. 412, 86 S. W. 65; McGuiness v. Butler, 159 Mass. 233, 38 Am. St. Rep. 412, 34 N. E. 259; Barney v. Hannibal & St. J. R. Co. 126 Mo. 372, 26 L.R.A. 847, 28 S. W. 1069; Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688, 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.

Messrs. Charles E. Foster and Baldrige, Keller, & Keller, for appellee:

The doctrine of the "turntable cases" applies.

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.

1. The act of coupling two wagons to gether, and thus driving them on the street, does not of itself constitute negligence on the part of the owner of the wagons, so as to render him liable in damages for the death of a child who climbed on the connecting pole.

Negligence attractive nuisance.

2. The doctrine of the "turntable cases" is not applicable to the facts in this case.

(February 12, 1915.)

797; Chicago, B. & Q. R. Co. v. Krayenbuhl, 65 Neb. 889, 59 L.R.A. 920, 91 N. W. 880, 12 Am. Neg. Rep. 300.

Defendant was upon the street, conducting its business in a negligent and unguarded manner, and is liable for the injury.

Indianapolis v. Emmelman, 108 Ind. 530, 58 Am. Rep. 65, 9 N. E. 155; Iamurri v. Saginaw City Gas Co. 148 Mich. 27, 111 N. W. 884; Wharton, Neg. 2d ed. § 112; Rachmel v. Clark, 205 Pa. 314, 62 L.R.A. 959, 54 Atl. 1927, 14 Am. Neg. Rep. 208; Kreiner v. Straubmüller, 30 Pa. Super. Ct. 609; Westerfield v. Levis Bros. 43 La. Ann. 63, 9 So. 52; Kelley v. Parker-Washington Co. 107 Mo. App. 490, 81 S. W. 631; Busse V. Rogers, 120 Wis. 443, 64 L.R.A. 183, 98 N. W. 219, 15 Am. Neg. Rep. 743; Harper v. Kopp, 24 Ky. L. Rep. 2342, 73 S. W. 1127; Ricketts v. Markdele, 31 Ont. Rep. 610; Louisville R. Co. v. Esselman, 29 Ky. 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

A

PPEAL by defendant from a judgment of the District Court for Douglas County in plaintiff's favor in an action brought to recover damages for the alleged wrongful killing of plaintiff's intestate. Reversed.

was no

The court should have directed a verdict v. Wetherell, 79 Ill. App. 33; Kopplekom for the defendant because there 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- N. 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 v. Anheuser-Busch Brewing 1143; Gavin v. Chicago, 97 Ill. 66, 37 Am. Asso. 24 Mo. App. 1; Dublin Cotton Oil Co. Tex. Civ. App. Rep. 99; Bishop v. Union R. Co. 14 R. I. v. Jarrard, 40 S. W. 314, 51 Am. Rep. 586, 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 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.

tractive nuisance.

Action for the wrongful killing of plaintiff's intestate. Verdict and judgment for

The facts that seem to be established by