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Subject Area: Law
Topic: The American Revolution and Constitution

§ 125.: Prohibition of the liquor trade.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 125.

Prohibition of the liquor trade.—

This phase of police supervision is not only the most common, but the moral and economical conditions, which induce its exercise, are so great and pressing, and the popular excitement attending all agitations against intemperance, like all popular agitations, is usually so little under the control of reason, that it is hard to obtain, from those who are attempting to form and mould public opinion, any approach to a dispassionate consideration of the constitutional limitations upon the police power of the State, in its application to the regulation and prohibition of the liquor trade. Drunkenness is distressingly common, notwithstanding the great increase in the number of those who practice and preach total abstinence from the use of intoxicating liquors; and the multitude of cases of misery and want, caused directly by this common vice, cry aloud for some measure whereby the evil of drunkenness may be banished from the earth. It is no wonder when the zealous reformer contemplates the careworn face of the drunkard’s wife, and the rags of his children, that he appeals to the law-making power to enact any and all laws which seem to promise the banishment of drunkenness; forgetting, as it is very natural for him to do, since zealots are rarely possessed of a philosophical and judicial mind, that to make a living law, it must be demanded, and its enactment compelled, by an irresistible public opinion; and where the law in question does not have for its object the prevention or punishment of a trespass upon rights, it is impossible to obtain for it the enthusiastic and practically unanimous support, which is necessary to secure a proper enforcement of it. Furthermore, if in any community public opinion is so aroused into activity as to be able to secure the enforcement of a law, having for its object the prevention of a vice, the moral force of such a public opinion will be amply sufficient to suppress it. The temperance agitator does not usually dwell on these scientific objections to temperance laws, or if he does, he either gives to them a flat and unreasoning denial, which makes all further argument impossible, or he justifies the enactment of an otherwise useless law by the claim that the enactment would arouse public attention to the evils of drunkenness, and by making persistent, though unsuccessful, attempts to enforce the law, public opinion will be educated up to the point of giving the proper support to the law. Educate public opinion up to the point of giving proper support to the law! If there is one principle that the history of law and legislation teaches with unerring precision, it is, not only the utter futility as a corrective measure of a law, whose enactment is not the necessary and unavoidable resultant of the social forces, then at play in organized society, but also the great injury inflicted upon law in general by the enactment of laws before their time. Nothing so weakens the reverence for law, and diminishes its effectiveness as a restraint upon wrong and crime, as the passage of stillborn laws, laws which are dead letters before they have been promulgated to the people. And why are laws for the prevention or punishment of vice ineffectual? Because such a law cannot enlist in its cause the strong motive power of self-interest. I do not mean that it cannot be demonstrated that each individual in the community will be benefited by the effective control of drunkenness. But I do mean that the people at large cannot be made to feel, sufficiently acutely, the necessity of enforcing these laws, in order to make them effective remedies for the suppression of the evil. A man sees a pick-pocket steal his neighbor’s handkerchief, while on his way through the public streets. He will instantly, involuntarily, give the alarm, and probably would render what aid was necessary or possible, in securing the arrest of this offender against the laws of the country. The same man, a few steps further, sees another violating the law against the sale of intoxicating liquor; and although he may be an active member of some temperance organization, he will be sure to pass on his way, and say and do nothing to bring this offender to justice. Why this difference of action in the two cases? In the first case, the act was a trespass upon the right of property of another, and self-interest, through fear of a like trespass upon his own rights of property, prompted the man who saw the crime to aid in the arrest of the criminal. In the latter case, no man’s rights were trampled upon; the unlawful act inflicted no direct damage upon the man who witnessed the violation of the law, and consequently self-interest did not impel him to activity in support of the law.

But these considerations constitute only philosophical objections to such laws, and can only be addressed to the legislative body, as reasons why they should not be passed. They do not enter into a consideration of the constitutionality of the laws after they have been enacted. If the constitution does not prohibit the enactment of these laws, the only obstacle in the way of their passage is the unwillingness of the legislators. The question to be answered is, therefore, are the laws for the regulation and prohibition of the liquor trade constitutional? The preceding sections of the present chapter contain an enunciation of all the principles of constitutional law, which are necessary to the solution of the present problem. But a recapitulation is necessary, before applying them to the particular case in question.

It has been demonstrated, and satisfactorily explained in its application to a sufficient number of parallel and similar cases, in order to lay it down as an invariable rule, that no trade can be subjected to police regulation of any kind, unless its prosecution involves some harm or injury to the public or to third persons, and in any case the regulation cannot extend beyond the evil which is to be restrained. It has also been maintained and, I think, satisfactorily established, that no trade can be prohibited altogether, unless the evil is inherent in the character of the trade, so that the trade, however conducted, and whatever may be the character of the person engaged in it, must necessarily produce injury upon the public or upon individual third persons. It has likewise been shown that, while vice, as vice, can never be the subject of criminal law, yet a trade, which has for its object or necessary consequence, the provision of means for the gratification of a vice, may be prohibited, and its prosecution made a criminal offense. These principles, if sustainable at all, must have an universal application. They admit of no exceptional cases. If the reader has given his assent to the truth of them, in their application to other cases of police regulation of employments, his inability to adhere to them, in their application to the police regulation of the liquor trade, indicates either a lack of courage to maintain his convictions in the face of popular clamor, or an obscuration of his judgment through his sympathetic emotions, which are aroused in considering the gigantic evil to be combated.

It has never been claimed that any one could be punished for drunkenness, unless he thrusts the fact upon the attention of the public, so that it offends the sensibilities of the community, and in consequence becomes a public offense. If a man displays his drunkenness on the public thoroughfares to the annoyance and inconvenience of the public, he can be punished therefor. But if he chooses to degrade himself by intoxication in the privacy of his own home or apartments, he commits no offense against the public, and is consequently not subject to police regulation. But the man who proposed to make a profit out of his proneness to drunkenness, would be guilty of a public wrong, and could be punished for it. It is perfectly reasonable for the law to prohibit the sale of liquor to minors, lunatics, persons under the influence of liquor and confirmed drunkards, and impose a penalty upon the dealer who knowingly does so. In very many of the States there are statutes in which it is provided, that whoever is injured by the wrongful acts of a drunken person may maintain an action for damages against the dealer in liquor who sold or gave the liquor which caused intoxication in whole or in part, where the intoxicated person was neither a confirmed drunkard, nor a minor, nor a lunatic, nor under the influence of liquor, when he purchased the liquor. This legislation has been frequently sustained by the courts in its broadest application, and, it is believed, has in no case been declared unconstitutional, although often contested.1 So far as these statutes prohibit the sale of liquor to persons who, from their known weakness of character, may be expected to make an improper use of it to their own harm and the injury of others, and subject the dealer, who sells liquor to these classes of persons, to an action for the damages that third persons may have sustained from their drunken antics, it cannot be doubted that the statutes are constitutional. These persons, who are laboring under some mental or other infirmity which renders them unable to take care of themselves, can very properly be placed under the guardianship of the State, if not in all cases for their own benefit, at least for the protection of the public; and where a dealer in intoxicating liquors sells to such an one, in violation of the statutes, he does a wrongful thing, an act prohibited by a constitutional law, and he may therefore be held responsible for every damage flowing from his wrongful act, which might reasonably have been anticipated. But when the statutes go farther and make the dealer responsible for every wrongful act committed by any and every person while in a state of intoxication, whose intoxication was caused by the liquor which the dealer had sold, whether the dealer knew of his aptitude to intoxication or not, they can only be justified on the principle that the prosecution of the liquor trade is unlawful in itself, and the constitutionality of such laws must depend upon the constitutionality of laws for the prohibition of the liquor trade in general. For no one can be held responsible for damage, flowing consequentially from an act of his, unless that act is unlawful in itself, or he has done it in an unlawful manner. If the sale of liquor is a lawful occupation he can not be held for a damage that is not the result of his failure to conduct the business in a lawful manner, and he cannot be said to have conducted a lawful business in an unlawful manner, when he sells liquor to one who may not reasonably be expected to become intoxicated.

Is then the absolute prohibition of the liquor trade a constitutional exercise of legislative authority under the ordinary constitutional limitations? It may be stated that the decisions of the courts, in different parts of the country, have very generally sustained laws for the prohibition of the sale of intoxicating liquors, in any manner, form or bulk whatever, and on the ground that the trade works an injury to society, and may, therefore, be prohibited.1

The citations and quotations may be continued without end, but the invariable argument is that the liquor trade has, following in its train, certain evils, which would not exist, if the trade were prohibited altogether; consequently, the trade may rightfully be prohibited. If the necessary consequence of the sale of liquor was the intoxication of the purchaser, because the liquor could not be used without this or other injury to the person using it and to others, then the trade may be prohibited in accordance with the principles, which have been established in preceding sections of this chapter, in application to other employments. In such a case, the trade would be essentially injurious to the public. But it does not necessarily follow that the sale of the liquor will cause the intoxication of the purchaser. The number of those who are likely to become intoxicated by the liquor they purchase is very small, in comparison with the thousands who buy and use it in moderation, without ever approaching the state of intoxication. We cannot say, therefore, that the sale of liquor necessarily causes intoxication. On the contrary, the facts establish the truth of the statement that the cases, in which the sale of liquor is followed by intoxication, constitute the exception to the general rule. The liquor dealer may, and probably in the majority of cases does, become responsible for the intoxication that follows a sale in these exceptional cases, by knowingly selling liquor to one who is intoxicated at the time, or is likely to become intoxicated, and he can undoubtedly be punished for such a wrong against society; but the main and proximate cause of these cases of intoxication is the weakness of the purchaser, against which no law probably can furnish for him any effective protection.

But it is often urged as a justification of prohibition that even a moderate use of intoxicating liquor is injurious to the health. A great many people believe this to be true, and possibly it is. But the majority of people of the present generation think differently. Thousands maintain that it is a harmless indulgence, and as many more declare it to be positively beneficial. Those who are opposed to the use of intoxicating liquors, except for medicinal purposes, are convinced that these people are wrong; but they are equally entitled to their own opinions, and it would be just as much an act of tyranny to compel them to abandon their ideas and practices, in conformity with the total abstinent’s views of what is good for them, as it would be to pass a law prohibiting the eating of hot bread, because the majority of the people believe it to be injurious to the health. It is true that a man may be prohibited from doing that which will work an injury to his offspring by the inheritance of diseases caused by the prohibited practice. While it is probably true that intoxicating liquor, like any other stimulant, will produce a more or less lasting effect upon the constitution of the person addicted to its use, it is by no means a demonstrated fact that its use is the cause of any constitutional disease. Whatever injury can be attributed to the moderate use of liquor, so far at least as our present knowledge extends, is functional and not constitutional. If these reasons be well founded, then the liquor trade is not necessarily injurious, in a legal sense, to the public; and where injury does result, it is either caused by the shortcomings of the purchaser, without any participation in the wrong by the seller, as where he does not know, and cannot be supposed to know, that intoxication will very likely follow the sale; or the responsibility may be laid at the door of the seller, when he knowingly sells to one who is likely to make an improper use of it. The seller may in the latter case be punished, and his right to pursue the trade thereafter may be taken away altogether, as a penalty for his violation of the law in this regard. But the liquor trade can not, for these reasons, be prohibited altogether, if it be true that no trade can be prohibited entirely, unless its prosecution is essentially and necessarily injurious to the public. Even the prohibition of saloons, that is, where intoxicating liquor is sold and served, to be drunk on the premises, cannot be justified on these grounds.1

It is quite common for the legislature to pass laws prohibiting the sale of intoxicating liquors in the neighborhood of schools, colleges, and lunatic asylums, and these laws have uniformly been sustained as constitutional, unless in some of the States they have come under the constitutional prohibition for being special laws, the right to enact which is taken away from the legislature by some of the constitutions.1 Surely, if in any case prohibition laws can be sustained on principle, their enactment would find ample justification in the removal of temptation to drink from those who, on account of their infancy or mental deficiencies, are not as able to maintain an effective resistance without this protection. But if the principles heretofore developed be at all reliable, as a guide in search of the constitutional limitations upon the police control of trades and employments, these special prohibitory laws are subject to the same constitutional objection, that the trade which they prohibit is not essentially and necessarily harmful to society, even under the peculiar circumstances which furnish a special reason for the enactment of the law.

It has been stated that the reasons usually assigned for the enactment of prohibitory laws, viz.: the prevention of drunkenness, will not satisfy the constitutional requirements even in the prohibition of drinking saloons, although most of the drunkenness from which the State suffers is caused by the existence of taverns or saloons, where liquor is sold to be drunk on the premises. For it would be manifestly untrue to assert that every frequenter of a saloon became intoxicated, and during intoxication did more or less damage to the public, or to third persons: consequently the sale of liquor in a saloon does not necessarily bring about the intoxication of the buyer or of his friends. But there is another, and an all-sufficient, reason for the prohibition of drinking saloons, if the legislature should deem it expedient to prohibit them. It is that they constitute the places of meeting for all the more or less disreputable and dangerous classes of the community, and breaches of the peace of a more or less serious character almost invariably occur in bar-rooms. It is true that there are many comparatively quiet saloons, where men of good social standing resort, and which are to be distinguished from the low groggeries where the vicious and the criminal classes congregate; but the keeping of a drinking saloon cannot be conducted so that public disorders cannot possibly occur, and some of the most distressing breaches of the peace, resulting in the death of one or more, have occurred in this better class of saloons. The suppression and control of the public disorders caused by the keeping of saloons constitute a heavy burden upon the taxpayer, and the cause of them may be removed by a prohibitory law, or restrained and restricted in number by the imposition of a high license, according as it may seem best to the law-making power.

As a matter of course, if the absolute prohibition of drinking saloons is constitutional, it would be lawful to subject them to more or less strict police regulations, where the regulations have for their reasonable object the prevention of some special evil which the prosecution of the trade threatens to the public. Thus it has been held reasonable to compel the closing of saloons on Sunday,1 not only because the pursuit of the business would be a violation of the ordinary Sunday laws,2 but also because there is increased danger on that day of breaches of the peace in bar-rooms, on account of the idleness of those persons who are most likely to frequent such places. It has also been held to be reasonable, for similar reasons, to prohibit the sale of liquors on primary and other election days;3 on court, show and fair days;4 to compel the saloons to be closed at a certain hour in the night;5 and in one case it was maintained to be lawful for the legislature to authorize the Board of Police Commissioners to order all saloons to be closed, “temporarily,” whenever in their judgment the public peace required it.1 It has also been declared to be reasonable to prohibit the erection of screens and shutters before places in which liquors are sold.2

This, therefore, is the conclusion reached after a careful consideration of all the constitutional reasons for and against the prohibition of the liquor trade: the prohibition of the manufacture and sale of spirituous and intoxicating liquors is unconstitutional, unless it is confined to the prohibition of drinking saloons, and the prohibition of the sale of liquor to minors, lunatics, confirmed drunkards, and persons in a state of intoxication. As has already been explained, there is an almost unbroken array of judicial opinions against this position, and there is not any reasonable likelihood that there will be any immediate revulsion in the opinions of the courts. But it is the duty of a constitutional jurist to press his views of constitutional law upon the attention of the legal world, even though they place him in opposition to the current of authority.

[1]Roth v. Eppy, 80 Ill. 283; Wilkerson v. Rust, 57 Ind. 172; Fountain v. Draper, 49 Ill. 441; Church v. Higham, 44 Iowa, 482; Goodenough v. McGrew, 44 Iowa, 670; Gaussby v. Perkins, 30 Mich. 492; Badore v. Newton, 54 N. H. 117; Baker v. Pope, 2 Hun, 556; Quain v. Russell, 12 Hun, 376; Bertholf v. O’Reilly, 74 N. Y. 515; Baker v. Beckwith, 29 Ohio St. 314; State v. Ludington, 33 Wis. 107; Whitman v. Devere, 33 Wis. 70.

[1]Metropolitan Board Excise v. Barrie, 34 N. Y. 657; Wynehamer v. People, 3 Kern, 435; Warren v. Mayor, etc., Charleston, 2 Gray, 98; Fisher v. McGirr, 1 Gray, 26; Jones v. People, 14 Ill. 196; Goddard v. Jacksonville, 15 Ill. 588; People v. Hawley, 3 Gibbs, 330; Preston v. Drew, 33 Me. 559; State v. Noyes, 30 N. H. 279; State v. Snow, 3 R. I. 68; State v. Peckham, Ib. 293; State v. Paul, 5 R. I. 185; State v. Wheeler, 25 Conn. 290; Lincoln v. Smith, 27 Vt. 328; Sante v. State, 2 Clarke (Iowa), 165; Prohibitory Am. Cases, 25 Kan. 751 (37 Am. Rep. 284); Bartemeyer v. Iowa, 18 Wall. 729; State v. Mugler, 29 Kan. 252 (44 Am. Rep. 634); Perdue v. Ellis, 18 Ga. 586; Austin v. State, 10 Mo. 591; State v. Searcy, 20 Mo. 489; Our House v. State, 4 Greene (Iowa), 172; Zumhoff v. State, Ib. 526; State v. Donehey, 8 Iowa, 396; State v. Carney, 20 Iowa, 82; State v. Baughman, Ib. 497; State v. Gurney, 37 Me. 156; State v. Burgoyne, 7 Lea, 173 (40 Am. Rep. 60); State v. Prescott, 27 Vt. 194; Lincoln v. Smith, 27 Vt. 328; State v. Brennan’s Liquors, 25 Conn. 278; State v. Common Pleas, 36 N. J. 72 (13 Am. Rep. 422); Tanner v. Village of Alliance, 29 Fed. Rep. 196, note; Koester v. State, 36 Kan. 27, prohibit sale by all but druggists for medical, scientific and mechanical purposes. Local option laws are constitutional. Ex parte Kennedy (Tex.), 3 S. W. 114. “The measures best calculated to prevent those evils and preserve a healthy tone of morals in the community, are subjects proper for the consideration of the legislature. Courts of justice have nothing to do with them, other than to discharge their legitimate duties in carrying into execution such laws as the legislature may establish, unless, indeed, they find that the legislature in making a particular law, has disregarded the restraints imposed upon it by the constitution of this State, or the United States.” State v. Brennan, 25 Conn. 278. “There is, however, no occasion to pursue this topic. The law in question is, in our opinion, obnoxious to no objection, which could be derived from the establishment of the doctrine advanced by the defendant. It is not different in its character, although it may be more stringent in some of its provisions from those numerous laws, which have been passed in almost all civilized communities and in ours from the earliest settlement of our State, regulating the traffic in spirituous liquors, and which are based on the power possessed by every sovereign State, to provide by law, as it shall deem fit for the health, morals, peace and general welfare of the State, and which, whatever may have been thought of their expediency, have been invariably sustained as being within the competency of the legislature to enact.” State v. Wheeler, Ib. “The weight of authority is overwhelming that no such immunity has heretofore existed, as would prevent State legislatures from regulating and even prohibiting the traffic in intoxicating drinks with a solitary exception. That exception is the case of a law operating so rigidly upon property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property.” Justice Miller in Bartemeyer v. Iowa, 18 Wall. 129. “There certainly are provisions in all our State constitutions, which will not permit legislative bodies wantonly to interfere with or destroy many of the natural or constitutional rights of the citizens. Of this class are those provisions which secure the freedom of the press and of speech, and the freedom of debate. But we are not aware that there is any provision in our constitution which would prevent the legislature from prohibiting dram selling entirely.” Napton, J., in Austin v. State, 10 Mo. 591.

[1]As stated already, the prohibition of the sale of intoxicating liquor has seldom been declared to be unconstitutional, but in the following opinion from the Supreme Court of Indiana, which has, however, been subsequently overruled, or at least departed from, a law which prohibited the manufacture of spirituous liquor was declared to be unconstitutional:—

“The court knows, as matter of general knowledge, and is capable of judicially asserting the fact, that the use of beer, etc., as a beverage, is not necessarily hurtful, any more than the use of lemonade or ice cream. It is the abuse, and not the use, of all these beverages that is hurtful. But the legislature enacted the law in question upon the assumption that the manufacture and sale of beer, etc., were necessarily destructive to the community; and in acting upon that assumption, in our own judgment, it has invaded unwarrantably the right to private property and its use as a beverage and article of traffic.

“What harm, we ask, does the mere manufacture or sale or temperate use of beer do to any one? And the manufacturer or seller does not necessarily know what use is to be made by the purchaser of the article. It may be a proper one. And if an improper one, it is not the fault of the manufacturer or seller, but it is thus appropriated by the voluntary act of another person, and by his own wrong. And will the general principle be asserted that to prevent the abuse of useful things, the government shall assume the dispensation of them to all the citizens—put all under guardianship? Fire-arms and gunpowder are not manufactured and sold to shoot innocent persons with, but are often so misapplied. Axes are not made and sold to break heads with, but are often used for that purpose. * * * Yet who, for all this, has ever contended that the manufacture and sale of these articles should be prohibited as being nuisances, or be monopolized by government? We repeat, the manufacture and sale of liquors are not necessarily hurtful, and this court has the right to judicially inquire into and act upon the validity of the law in question.” Beebe v. State, 6 Ind. 501.

[1]Dorman v. State, 34 Ala. 216; Boyd v. Bryant, 35 Ark. 69 (37 Am. Rep. 6); Trammell v. Bradley, 37 Ark. 356; Ex parte McClain, 61 Cal. 436 (44 Am. Rep. 554); Bronson v. Oberlin, 41 Ohio St. 476 (52 Am. Rep. 90). So, also, it has been held constitutional to prohibit sale of liquor within a certain distance of fair grounds. Heck v. State, 44 Ohio St. 536.

[1]Hudson v. Geary, 4 R. I. 485; Gabel v. Houston, 29 Tex. 335; State v. Ludwig, 21 Minn. 202.

[2]As to which see ante, § 68.

[3]State v. Christman, 67 Ind. 328.

[4]Grills v. Jonesboro, 8 Baxt. 247.

[5]State v. Welch, 36 Conn. 215; State v. Freeman, 38 N. H. 426; Smith v. Knoxville, 3 Head, 245; Maxwell v. Jonesboro, 11 Heisk. 257; Baldwin v. Chicago, 68 Ill. 418; Platteville v. Bell, 43 Wis. 488. In Ward v. Greenville, 1 Baxt. 228 (35 Am. Rep. 700), it was held to be unreasonable to compel saloons to be closed between 6 p. m. and 6 a. m. But a statute prohibiting sale of liquors between 11 p. m. and 5 a. m. was held to be constitutional. Hedderich v. State, 101 Ind. 564 (51 Am. Rep. 768.)

[1]State v. Strauss, 49Md. 288.

[2]Commonwealth v. Costello, 133 Mass. 192; Commonwealth v. Casey, 134 Mass. 194; Shultz v. Cambridge, 38 Ohio St. 659.