
    (Jefferson County, Common Pleas.)
    April Term, 1898.
    THE STATE v. EMILE STEVENS.
    1. The act of the legislature, passed March 3rd, 1888, and known as the “local option law” (except the proviso relating to native wines upon which no opinion is expressed), is a valid exercise of the police power under the act of congress passed August 8th, 1890, and known as the “Wilson Act.”
    2. A sale by the agent of the importer of intoxicating liquors, to-wit, beer, in the original package, as imported in a township where the sale of such liquors is prohibited by a valid election pursuant to the provisions of the “local option law”, is unlawful,and the person making such sale is amenable to the provisions of said law and may be prosecuted for a violation of the same.
   MANSFIELD, J.

This case was heard on the following agreed statement of facts :

“In the matter of the prosecution of the case of the State of Ohio v. French Steve, who pleads by the name of Emile Stevens, who stands duly charged by indictment in said court with a misdemeanor, in this, that the said Emile Stevens, on March 23rd, 1898, in Mt. Pleasant township, Jefferson county, Ohio, sold intoxicating liquors in a prohibition township, counsel for the state as well as the defendant and his counsel, admit respectively and all agree that the following statement shall constitute and actually are the material facts in this case:

That said Emile Stevens, the defendant, on March 23rd, 1898, in ' the county of Jefferson and in the township of" Mt. Pleasant, aforesaid, was then and there not a legally registered druggist,and then and there, and without the limits of a municipal corporation, sold intoxicating liquors other than cider or wine manufactured from the pure juice of the grape cultivated in the state of Ohio, as a beverage, to divers persons, said selling being then and there prohibited,and said selling not being for exclusively known medical, art, scientific, mechanical or sacramental purposes.

That at the time of said sale, and for more than 30 days prior thereto, said township of Mt. Pleasant was a prohibition or local option township in which the sale of intoxicating liquors was forbidden and unlawful under the laws of said state of Ohio.

That said intoxicating liquors, sold as aforesaid, were beer, manufactured in the state of West Virginia,and were shipped in small barrels, called kegs, from the manufactory in West Virgina to the defendant, Emile Stevens, in said township of Mt. Pleasant, and there received by the said Emile Stevens in said township and state.

That each keg was a single package, and was shipped singly by the manufacturer to the defendant, Emile Stevens, and was so received by him in said township and state.

That the sale hereinbefore admitted to be made by the said Emile Stevens was a sale of one of said kegs of intoxicating liquor, and was sold, as aforesaid, in exactly the same form and condition as received by him.

That the sale was made of the original and unbroken package, as shipped by the manufacturer from the manufactory in West Virginia,and as received by the defendant, Émile Stevens, in said township and state.

That the said defendant, Emile Stevens, was in the employ of the said manufactory, which shipped said kegs of intoxicating liquors, and that by virtue of said employment it was the business of the said defendant, Emile Stevens, to make sales in said township and -state of the product of said manufactory similar to the one hereinbefore described.

That the keg of intoxicating liquor, sold by the defendant, as aforesaid, was but one of a large number of such kegs which, several days prior to said sale and upon their receipt from said manufactory, had been stored away in said township by said defendant, and after-wards there sold to divers persons, as aforesaid, by said defendant.

It is agreed that, for the intoxicating liquor sold by the defendant in Mt. Pleasant township, as aforesaid, the defendant then and there collected and received the purchase price from the vendees.

It is further agreed by the defendant' and his counsel and counsel for the state, that this action shall be tried to and by said court without the intervention of a jury, upon the foregoing statement of facts, and that said court shall determine the question of defendant’s guilt or innocence of said charge, and pass judgment accordingly.”

It being admitted there was a sale of intoxicating liquor, to-wit: beer, as a beverage by the defendant in a township in this county where such sale was unlawful under the law of Ohio, it is claimed that when a state recognizes the manufacture, sale and use of intoxicating liquors as lawful, it can not discriminate against the bringing of such anieles -in, and importing them from other states; nor when imported prohibit their sale by the importer; that such legislation is void as a hindrance to interstate commerce, and an unjust preference of the products of the enacting state as against similar products of the other states, and. that therefore the defendant is not guilty of making an unlawful sale of intoxicating liquors, as charged in the indictment.

The validity of the law thus called in question is entitled, “An act to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township in the state of Ohio,’.’ passed March 3rd, 1888, and known as section 4334-24 in Bates’ Statutes.

Section 2 of this act provides, among other things, that if a majority' of the votes east at an election in a township shall be against the sale of intoxicating liquors as a beverage then from and after thirty days from the holding of said election, “it shall be unlawful for any person within the limits of such township and without the limits of a municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away, or furnished ; * * * but nothing in this section shall be construed so as to prevent the manufacture and sale of cider, or sale of wine manufactured from the pure juice of the grape, cultivated in this state, nor to prevent a legally registered druggist from selling or furnishing pure wines or liquors for exclusively known medicinal art, scientific, mechanical, or sacramental purposes; but this provision shall not be construed to authorize the keeping of a place where wine, cider or other intoxicating liquors are sold, kept for sale, furnished or given away as a beverage.” * * -x-

It is claimed that the above law is a regulation in restraint of commerce among the states, and is therefore void for the following reasons, first: That, in as much as the laws of Ohio recognize the manufacture, purchase,sale and use of intoxicating liquors as a beverage,to be lawful and the subject of legitimate commerce, the law in question cannot affect a sale of such liquors when imported into the state and sold in the original package, because they are without the domains of the police power. In other words, it is contended that while a state may in the exercise of its police power lawfully prohibit the manufacture and sale of intoxicating liquors, even in the original package, yet that it has no such power to regulate the sale of such liquors when imported from another state arid sold in the original package.

Second: That, in as.much a,s the law in question expressly exempts from its operation, wine manufactured from the pure juice of the grape, cultivated in the state of Ohio, and forbids the sale' of wine manufactured from the grape cultivated without the state, this is a discrimination in favor of the citizen of this state as against the citizens of other states, and is therefore void.

In support of the first proposition counsel for the defendant cite and reiy upon the cases of Scott v. Donald, 165 U. S., 58, and Vandercook v. Vance, 80 Fed., 786. In Scott v. Donald the court held, “that when a state recognizes the manufacture, sale and use of intoxicating liquors as lawful, it cannot discriminate against the bringing of such articles in, and importing them from other states;” and in the Vandercook case the court held: “Any state may, in the exercise of tne police power, declare that the manufacture, sale, barter and exchange, or the use as a beverage of alcoholic liquors, are public evils, • and,having thus declared, can forbid such manufacture, sale, barter and exchange, or use within her territory. ” “If all alcoholic liquors, by whomsoever sold, are declared contraband, they cease to belong-to commerce, and are within the jurisdiction of the police power. But so long as. their manufacture, purchase, or sale, or their use as a beverage in any form or by any person, are recognized, they belong to commerce, and are without the domain of the police power.” “The law laid down in Liesy v. Harden (135 U. S., 100; popularly known as the “original package-decision, ”) controls this case, and the attempt to forbid the importation and sale of spirituous liquors in original packages-must fail. By this decision it is clear that so long as the state recognizes that the use of alcoholic liquors as a beverage is lawful and can be encouraged, she cannot,, under her constitutional obligations to the other states of this Union, forbid, contol, hinder and burden commerce in such articles between their citizens and her own.”

The case of Vandercook v. Vance was appealed to the U. S. Supreme Court, and since the case at bar was heard, a decision has been rendered in that case reversing in part, and affirming in part, the lower court. The case is known as Vance v. Vandercook and is reported in vol. 18, No. 26, (May 30th 1898; Supreme Court Reporter, 674, and completely disposes of the first proposition contended for by counsel for the accused. In this case 'it is held that by the “Act of Congress, Aug. 8th, 1890, * * * a state may lawfully prohibit or regulate the sale of intoxicating liquors even in the original package;” and “a state law prohibiting the sale of liquors by others, though, by authorizing their sale by agents of the state, it recognizes such liquors as the subject of legitimate commerce, and' is a regulation of their sale, which is a proper exercise of the police power of the state.”

Mr. Justice White in recapitulating the former adjudications of the court, says: “(a.) Beyond dispute, the respective states have plenary power to regulate the sale of intoxicating liquors within their borders, and the scope and extent of such regulation depend' solely upon the judgment of the law making power of the states, provided, always, they do not transcend the limits of state authority by invading rights which are secured b5 the constitution of the United States, and provided, further, that the regulations as adopted do not operate as a discrimination against the rights of residents or citizens of other states of the Union.

(b) Equally well established is the-proposition that the right to send' liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the constitution of the-United States to Congress, and hence that a state law which denies such right, or substantially interferes or hampers the same, is in conflict with the constitution of the United States.

(c) It is also certain that the settled doctrine is that the power to ship merchandise from one state into another carries with it, as an incident, the right in the receiver of the goods to sell them there in the original packages, any state regulation to the contrary notwithstanding; that is to say, that the goods received by interstate commerce remain under the shelter of the interstate commerce clause of the constitution, until, by a sale in the original package, they have been commingled with the general mass of property in the state.”

This last proposition, however, while genetically true, is no longer' applicable to intoxicating liquors, since congress, in the exercise of its lawful authority, has recognized thp power of the several states to control the incidental right of sale, in the original packages, of intoxicating liquors, shipped into one state from another, so as to enable the states to prevent the exercise by the receiver of the accessory right of selling intoxicating liquors in original packages except in conformity to lawful state regulations. In other words, by virtue of the act of congress, the receiver of intoxicating liquors in one state, sent from another, can no longer assert a right to sell in defiance of the state law in the original packages, because congress has recognized to the contrarv The decision in the ease of Leisy v. Hardin — that the state of the law was such as to allow importers to sell in original packages without regard to the laws of the state — overruled the License Cases, .previously decided by the same court, and thereby destroyed a doctrine regarded as settled for nearly half a century and which was followed by such important and far-reaching results as to demand the interposition of congress. Its effect was to practically annul the efforts of certain states to suppress the traffic in intoxicating' liquors. The supreme court had, however, strongly hinted that relief might be sought in the halls of congress, thereupon congress enacted a statute commonly called the "Wilson law,” August 8th, 1890. It reads as follows :

‘‘That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state-'or territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

This law has been passed upon by the supreme court in two cases, — In re Rahrer, 140 U. S., 545; Rhodes v. State of Iowa, 18 Supreme Court Reporter, 664.

In the first of these cases the constitutionality of the act was upheld, and the purpose of congress in adopting it was declared to have been to allow state laws to operate on liquor shipped into one state from another, io as to prevent the sale in the original package in violation of state laws. In the second ease the same view was taken, and it was.held '“that the obvious and plain meaning of the act was to allow the state laws to attach to intoxicating liquors received by interstate commerce shipments, before sale, in the original package, and therefore at such a time as to prevent such sale if made unlawful by tlie state law.”

From the fact that the state law permits the sale of liquor subject to particular restrictions (as does the law of Ohio) it. does not follow that the law under whicu the defendant is indicted, is not a manifestation of the police power of the state. The plain purpose of the act of congress, says Justice White, having been to allow state regulations to operate upon the sale of original packages of intoxicants coming from other states, it would destroy its obvious meaning to construe it as permitting the state laws to attach to and control the sale only in ease the states absolutely forbade sales of liquor, and not to apply in case the states etermined to restrict or regulate the same.

The manifest purpose of the act of congress was' to subject original packages to the regulations and restraints imposed by the state law. If the purpose of the act had been to allow the state law to govern the sale of the original package only where the sales of all liquor were forbidden, this object could have found ready expression; while, on the contrary,the entire context of the act manifests'the purpose of congress, to give to the respective states full legislative authority; both for the purpose of prohibition as well as for that of regulation and restriction with reference to the sale in original packages of intoxicating liquors brought in from other states.

In view of the decision in the ease of Vance v. Vandercook, it will hardly be contended that the Ohio law in question is not within the exercis of its police power. The contention of counsel was, that in as much as the laws of Ohio recognize the traffic in intoxicants as lawful and the subject of legitimate commerce, it would not enact a faw regulating such traffic so as to make it illegal to sell such liquors in a certain township of the state when imported into that township from another state and sold in the original package. The case above referred to settles the question adversely, to the claim of the defendant and holds that a state may, in the exercise of its police power, notwithstanding it reeognizos and encourages the traffic in intoxicants as articles of commerce, not only prohibit but also regulate and restrict the sale of such liquors even in the original packages when imported from another state.

Is the law which it is claimed the defendant has violated a lawful exercise, of the police power of the state? If it is, then the defendant is guilty, unless the act is void because it is discriminatory. The title to che act states that it is “an act to further provide a,gainst the evils resulting from the traffic in intoxicating liquors,’’ etc.

“Police power” may be defined as being, “that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society.” The question whether a given state law is a lawful exercise of the police power, is always open to the court.

The defendant as agent for the manufacturer made sales of béer in the original package as imported from the state of West Virginia, in Mt. Pleasant township, this county. On March 8th. 1888. the legislature of Ohio enacted what is known as the “local option law,” whereby it conferred upon the citizens of Mt. Pleasant township, residing without the municipal corporation therein, tberight, by vote, to prohibit the sale of all intoxicating liquors, except cider and wine, in said township. The same power or right is conferred upon the citizens of all the townships in the state. The vote taken in Mt. Pleasant township prohibiting the sale of intoxicating liquors in that township, was taken in the exercise of this authority. This act and the action of the people in that township pursuant to the provisions of said act, are both, without doubt, a. valid exercise of the police power of this state, and must control this case. Until the people, by another vote, declare in favor of such sales, the prohibition is absolute. The election in that township was a valid exercise of authority under the law in question, and no one, except legally registered druggists, can lawfully sell whiskey and beer therein. So far as that township is concerned, such intoxicating liquors are not an article of commerce. Under the provisions of the “Wilson Act” all whiskey and beer coming into that township are subject to all laws passed in the exercise of the police power. The act of the legislature in question and the electioh of the people pursuant to its provisions, are the lawful exercise of the police power.

Our state, in the exercise of the police power, has passed laws prohibiting the sale of liquor on Sunday and to minors and to habitual drunkards. Such laws are no more a regulation or restriction of the traffic in intoxicants than is the law by which such traffic may be prohibited in a township. It has been repeatedly held that the state laws prohibiting the sale of liquor on Sunday and to min'i’s and habitual drunkards were applicable to sales in original packages by the importer, and that such laws were not an interference with interstate commerce — 21 Atlantic, 7; 21 Atlantic, 13; 82 Federal, 19 and 785.

It has also been held there is nothing in the laws of the Uniled States to. prevent a state from enacting a local option law in the exercise of its police power, and that if the legislature has power to pass a local option law, it has also power to provide that any district adopting the law shall not undo its action in that regard within two years; 41 N. W, 746; 36 N. J. Law, 72; 6 S. W. 469. The law in question has been held valid. Gordon v. The State, 40 Ohio St., 607.

The remaining question to be considered is: Is the proviso, “hut nothing in this section shall be construed so as to prevent the sale of wine manufactured from the pure juice of the grape, cultivated in this state,” a discrimination in favor of domestic wines as against imported wines, and, if so, is the whole act void by reason thereof, or is the proviso only void?

It would appear from a preponderance of authority that such a discrimination is not defensible as a police regulation, but is unccnstitutioual and void as an encroachment upon the exclusive power of congress to regulate inferstate commerce. Tiernan v. Rinker, 102 U. S., 123; Kohn v. Melcher, 29 Fed. Rep., 433.

Where, however, a proviso of this sort occurs in the midst of a general restrictive or prohibitory law, courts will endeavor, if possible, to separate the invalid portion and leave the remainder of the statute in force.

This view was fatten by the courts in numerous cases examined by me; notably in the case of Vance v. Vandercook, supra, wherein the court held part of the law valid and part invalid. Black on Intoxicating Liquors, secs. 44 and 74; 22 Atlantic Rep., 613; 26 N. E. Rep., 449.

In the case of McGuire v. The State, 42 Ohio St., 530, it was held that the clause of sec. 6942 of the Rev. Stat., which expressly exempts from ,the operation of the statute,” the sale of wine manufactured from the pure juice of the grape cultivated within this state,” is not in conflict with the constitution of the United States respecting interstate commerce, and is therefore a valid ia.w. Johnson, C. J., on page 536 says: “If, however, we are in error in .this, (that is, in holding the law to be valid, 1 and the ease of Tiernan v. Rinker is sound, then the result is, that the proviso only is void, and a sale of the excepted liquors does not relieve the plaintiff in error. Had he proved on the trial that he sold wine manufactured from the pure juice of native grapes, it would have been in violation of the valid clause of the statute.

A. C. Lewis, Prosecuting Attorney for State.

Howard & Handlan of Wheeling, W. Va., and John M. Cook of Steubenville, for Defendant.

“The proviso being void arid the other provisions being valid, he would have been found guilty, though he dealt only in the excepted liquors."

To hold this law valid in so far as it prohibits sales of whiskey and beer in Mt. Pleasant township, and invalid as to the sale of wines, might produce two effects. Either the result might be to subject domestic wines to the prohibition equally with all others or else to remove any restriction upon the sale of foreign wines except such as may apply equally to those of home production. 2 S. E. Rep., 645; 25 Fed. Rep., 865.

Without expressing any opinion as to the validity of the proviso clause in said act, it is sufficient to hold all the other provisions of said act a lawful exercise of the police power, and therefore not in conflict with the constitution and laws of the United States in relation to in terstate commerce ; and as the defendant admits that he sold intoxicating liquors, to-\vit: he sold beer in said township, as alleged in the indictment, I And that he is guilty as therein charged.  