
    STATE, Respondent, v. BROWN, Appellant.
    (167 N. W. 400.)
    (File No. 4350.
    Opinion filed May 1, 1918.
    Rehearing denied June 1, 1918.)
    1. Criminal Law — Appeal—Error—No Motion for New Trial — Sufficiency of Stipulated Facts, No Review of.
    No motion for new trial having been made, question of sufficiency of stipulated facts to warrant conviction, is not before Supreme Court.
    2. Intoxicating Liquors — Keeping, Using, Liquors in Public Place— Railroad Station — Constitutional Provision, as Forbidding Possession of Liquors — Legislative Act, Whether Constitutional.
    Laws 1917, C-h. 281, Sec. 44, prohibiting keeping, or having for use or otherwise, or using, intoxicating liquors “in any road, street, alley or other public place,” is not unconstitutional as being in contravention of Const., Art. 24, which, among other things, prohibits keeping for sale, barter, trade or gift, of spirituous, etc., liquors. State v. Becker, 3 S. D. 29, 51 N. W. 1018, distinguished. So held, where the place in question was a railroad station.
    3. Statutes — Subjects and Titles — “Regulating Traffic in Intoxicating Liquors,” Whether Prohibiting Possession of Liquors in Public Place — Constitutionality.
    Laws 1917, Ch. 281, Sec. 44, prohibiting keeping, or having for use or otherwise, or using, intoxicating liquors “in any road, street, alley or other public place,”, is not in contravention of Const., Art. 3, Sec. 21, as containing provisions upon a subject not expressed in its title; one of the' purposes expressed in its title being “regulating the traffic in intoxicating, liquors;” said provision being' germane to the main purpose of the act as thus expressed in its title; and the having in possession in -public places of such liquors, by persons other than common carriers, is therefore germane to the general purpose so expressed in the title.
    4. Statutes — Excessive Fines, Cruel Punishment — Having In Possession Intoxicating Liquors in Public Place — Constitutionality of Act.
    Laws 1917, -Ch. 281, Sec. 44, (prohibiting, among other things, the keeping, or having for personal- use or otherwise, or using, intoxicating liquors “in any road, street, alley or other public place,” and which provides as punishment for first offense a fine not less than $200 nor more than $1000, and imprisonment in county jail not less than 30 days nor more than six months, is not unconstitutional as imposing excessive fines and cruel punishment.
    5. Statutes — Due Process — Possession of' Intoxicating Liquors in Public Places, Whether a Fundamental Privilege — Constitutionality.
    Laws 1917, Ch. 281, Sec. 44, prohibiting, among other things, the having in possession in .public places of intoxicating liquors, is not invalid as in conflict with Const., Art. 6, Sec. 2, providing that no person shall toe deprived of life, liberty, or property without due process of law; since the right to hold or possess intoxicating liquors for personal use is not one of the fundamental rights or privileges of persons.
    Appeal from the Municipal Court of Sioux Falla. Hon. Alpha F. Orr, Judge.
    The defendant, Harry Brotwn, -was' convicted! of having in. his possession- intoxicating liquors in'a public place, arad he appeals.
    Affirmed.
    
      Kirby, Kirby & Kirby, for Appellant.
    
      C. C. Caldwell, Attorney General, and C. V. Caldwell, for Respondent
    (2) To point two of the -opinion, Appellant cited; State v. Becker, 3 S. D. 29; Messenger v. -State (Neb.) 41, N. W. 638; State v. Young, 47 Ind. 150.
    (3) To point three of the ¡opinion, Respondent -cited: Ex parte Crame, 27 Ida. 671, 151 Pac. 1006.
    (5) To point five of the opinion, Appellant cited: Ex Pante Wilson, (Ofelia.) 119 Pac. 596; Ex parte Crane, 27 Ida. 671, 151 Pac. 1006; Crane v. Campbell, ... U. S-. ..., 62 L. Ed. 95.
    Respondent cited: Ex .parte Crane 27 Ida. 671, 151 Pac. ioo5; 62 L ed. 95.
   SMITH, J.

Appeal from a judgment of conviction in the municipal court of the city of Sioux Falls, upon an information charging tine accused with a violation of section 44 of chapter 281, Laws 1917. So far as material here, that section declares:

“It shall be unlawful for any person to keep or have for personal use or otherwise, or to use * * * intoxicating liquors in any road, street, alley or other public place.”

The information alleges tilnatb tire defendant-—

“did wilfully and unlawfully have in bis possession i-n a public place, namely, the Great Northern Passenger Station, in said city of Sioux Falls, certain intoxicating' liq|uors, namely, eleven quarts of whiskey.amid one quart of alcohol.”

Trial was by the court upon stipulated facts: No motion for a new trial was made, and therefore no question as to the sufficiency of the facts to warrant a conviction- is before us.

Appellant ciomtendls that section 44, supra, is unconsitutional: First, for the reason that the act is in contravention oif article 24 of the 'Constitution, in that the article does net grant to tine Legislature authority to forbid the having in possession of intoxicating liquors, and that the specific provisions of the article can .neither be extended nor limited) by the Legislature. Second, for the reason that the specific matter charged in the information — viz. ¡the having’ in possession of intoxicating liquors in. a public place — is a subject not expressed in the title of the act, i-n .contravention of section 21, ant. 3, of the Constitution. It is settled law that the state Constitution is not a grant of, but a limitation upon, legislative power, and that the Legislature possesses plenary legislative power in the absence of constitutional limitations. Appellant relies upon the case of State v. Becker, 3 S. D. 29, 51 N. W. 1018, to- sustain his first contention, and quotes therefrom the following language: •

“In tire matter, however, of the amamufacture, sale and keeping of ¡intoxicating liquors’ as a beverage the Legislature itself has no discretion except as to the particular measures to- be ernployed1 for the * enforcement of blue prohibition declared in the Constitution.”

This language must be understood and construed in connection with (the question then before thiis court. Article 24 of the -Constitution as it then existed declared that:

“No person or corporation shall manufacture, or aid in the manufacture for sale, any intoxicating liquor; no person shall sell or keep for sale, as a beverage any intoxicating liquor. The Legislature shall by law prescribe regulations for the enforcement of the provisions of this section and provide suitable and adequate penalties for the violation thereof.”

To carry into execution this constitutional mandate, the Legislature, enacted chapter 101, Laws 1890, under the following title:

“An act to prescribe regulations for the enforcement of the provisions of -article 24, of the Constitution of the state of S-outh Dakota entitled 'prohibition/ and to prescribe penalties for the unlawful manufacture, sale, keeping for sale, and use of intoxicating -liquors and to regulate the sal-e, barter, and- giving away of such liquors for medical, scientific, sacramental- and mechanical purposes.”

Becker was charged- under section 13 of the act, which declared all places where intoxicating liqudr were s-o-ld in violation of the act to be public nuisances. It -wa-s contended upon appeal that article 24 of the Constitution wiasi the subject of the legislative act, and that the Legislature was without authority to include in the title of the act another subject, to w-it, nuisances or to forbid the us-e elf -intoxicating liquors. The language of -the court above quoted -was- used in connection with a discussion of these questions, -and is in- effect a declaration that the Legislature had no discretion to modify the constitutional inhibition o-f the manufacture of, or the sale or keeping for sale oif, intoxicating liquors ais a beverage, but that • under the title- of the act, such legislative discretion, in obeying the constitutional mandate, extended only to the particular metas- or measures to he employed for the enforcanenl of the prohibition declared in the Constitution. But the court also decided that the charge against the accused w-as noit predicated! upon any provision of the act which might be hel-d to be unconstitutional, but upon one of its provisions- which was germane to the enforcement of the constitutional inhibition, and that even though the act may have contained separable provisions as to the use of intoxicating liquors which might be held unconstitutional, yet tire accused could not take advantage of the uncoustitutionality of other provisions which were not involved in the charge against himself. That 'Case 'affords noi support for appellant’s contention. It -does, however, decide that any provisions- 'germane to .the mlain purpose of an act as expressed in its! title (are constitutional, and) wie are'of the view that-this proposition is 'decisive of this appeal.

One -oif the purposes of the act (Chapter 281, Laws 1917), as expressed in ite title, is “regulating the traffic in intoxicating liquors.” Neither article 24 of the Constitution nor chapter 281, Laws 1917, prohibits traffic -in intoxicating liquors ■for purposes deemed legitimate, viz. for medicinal, mechanical, -sacramental, or .scientific purposes. Transportation for such purpc|ses is not forbidden, and isi therefore lawful. But bo safeguard traffic .and bransportaitión for such legitimate purposes, the act of 1917 contains various provisions specifying the mode -of selling, buying, and' transporting such intoxicating liquors. To accomplish the purpose iolf the act the transportation' of such liquors-is -required to be by Common carriers, who -in all (-cases are required! to conform to specific regulations. Tine having in possession, in 'public places of such l-iquo-rs by persons other than ocimimoo carriers is therefore clearl-y germane ito¡ the general purpose which lis expressed in the title of the act “regulating” the legitimate traffic in- intoxicating liquors'.. The accused wla® not shown to be a common carrier. State v. Morgan, 2 S. D. 32, 48 N. W. 314; State v. Carlisle, 30 S. D. 475, 139 N. W. 137; State v. McPherson, 30 S. D. 547, 139 N. W. 368.

Appellant further contends that the act imposes excessive fines ’and -cruel punishments cointrary to section 23, art. 6, of the Constitution. The question has been settled in thi-s state. State v. Becker, supra; State v. Stumbaugh, 28 S. D. 50, 132 N. W. 666. Appellant also urges that the act Violates section 2, art. 6, of the Constitution, Which declares that:

“No. person ‘shall be -deprived of life,, liberty or property without due process of law” — citing Ex parte Wilson, 6 Okl. Cr. 451, 119 Pac. 596.

A statute of that state prohibited the keeping 'in -possession of 'intoxicating liquors. The court said:

“It will be observad that this provision (has mo reference to the intent or purpose for which' the liquor is kept in possession, but it 'denounces as a drlimie the simple faict that the liquor is kept -in possession for another, however innocent the act or commendable the .purpose.”

The decision holds' the act to -be an abridgment oif the personal liberty of the citizen, citing among -others the -case of Commonwealth v. Campbell, 133 Ky. 50, 117 S. W. 383, 24 L. R. A. (N. S.) 172, 19 Ann. Cas. 159, in which that court said:

“The history of our state from, its beginning shows that there was never even the claim of a right on the part of the Legislature to interfere with the citiz-en using liquor f-or his «win comfort, provided.1 that in so doing he committed no> offense against public decency by being intoxicated; and1 we are of opinion that 'it never- has been w'ithlin the cclmpahemcy of the' Legislature to so restrict the liberty of 'the citizen”. — 'citing' the Bill of Rights.

The rule thus -broadly stated has long since been- overturned, and 'an extended' -discussion, of the subject would serve no useful purpose. Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 95; Clark Distilling Co. v. Railway Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. In the Crane 'Case, supra, the United States Supreme Court said!:

“And, eionsidierliiig- the notorious difficulties always attending upon efforts to suppress traffic in liquors., we are unable to. say that the challenged inhibition of their possession wias- arbitrary and unreasonable, or without relation to the legitimate legislative purpose. We further think it clearly fdllclws: from our numerous decisions upholding .prohibition legislation that the right to hold intoxicating liquors for personal u-sie is not one of those funidamenitla'l privileges olf a citizen of thie United States which no state may abridge. A contrary yfieiw would’ be incompatible with the undoubted -power to prevent manufacture, gift, sale, purchase or transportation of such articles' — itbe only feasible wavs of getting them. An assured right of possession would necessarily imply some adequate method to: obtain not subject to- destruction at thie 'will of the state.”

Section 2, art. 6, of our state Oonisititutiom is the same in substance and effect as, and in words almost identical with, the last clause of the Fourteenth Amendment to the United States Constitution, and should be given a like interpretation.

Tlhe order and judgment of the trial court are affirmed.  