Peninsula enterprise. [volume] (Accomac, Va.) 1881-1965, 1888-04-27
SAVAGE vs.. COMMONWEALTH.

Case No. g
This was a prosecution in the county
court of Accomac county for nnlawful-
" selling Intoxicating liquors. in Lee
magiSterial district. in the said county
| The defendant WIS convicted and SIN.
fenced to imprisonmentin Jail and to
nav n fire. And Il writ Of error to The
Judgment of the county cOnrt having
been refused by the judge OF the circuit
court Of the said county, the defendant
applied for and Ohtainpfl;l writ Of error
from one Of The Judges of this court.
j 1t is commended that the county court
erred-lilSt. in overriding the demurrer
to this Indictment, and afterwards in
cverrnling the DEFENDANTS motion fora
new trial on the gronnd That the verdict
was contrary to the law and the evil
dence.
The Indictment. Which was found at
tie March term. 1887 charges that the
defendant" .Dufield Savage. OH the -
day of - A. d. 1885,, anil since the
first dav of May. A. d. 1856. in the
maglsteral district of LIE, in AccO.
mac county. did mlawfully sell intoXi-
eating liquor tn one William j. Barnes,
against the peace and dignity of the
! Commonwealth. "
The grounds upon which it is con-
tended that the indictment is defective
are-tirSt. that it does not charge that
the offence WAS committed in Il magis.
terlal district which had voted against
license; second, that it does not charge
that the liquor sold was snch us WAS the
subject of license under the statute be-
| 60. In, acf, ,xf
or no license WAS taken: third. that it
does not stale Il time certain at which
the liquor was sold; fourth. that it does
not charge that the liquor WIS sold.
either by retail or wholesale or ut an Or
binary or ut any other place ehumea-,
ted in the statute;and fifth, because the
statute. commonly known us the local
option law. nlunder which the indict-
ment was found, is unconstitutional.
The first three of these propositions
are disposed ofby what was said in the
case of Savage VS.. Commonwealth lie
cidcd at the present term; and as to the
fOul tn. 1T is sufficient to say that the
Indictment follows the language of the
statute. which makes it an offence to
sell "ntoXicating liquors." without
reference TO the quantity sold, or tile
place where sold, provided the sale IS
made in county. corporation. or mag
isterial district, wllichlas voted against
license. The case of Commonwealth VS..
Head, II Graft. $40 is not in point.
And the fifth objection IS equally
without merit. The statute provides
for submitting the question Of liqnor
license to the qualified voters OF The
several counties. corporations, and
magisterial districts in the State. and,
among other things. enactS that if any
magist erlal district vote against Ii
cense for the sale of intoxicating Ii
Qu0rS therein, then no license shall be
granted to any person in such district
for the sale of such liquors; but it such
district vote in favor of license then it
shall he lawful 10 sell with license oh
tanned under existing laws, and penal
ties for violation of the act are pre-
scrhpd. Acts 1SS5-S6 p 25S. The case
has been submitted without oral argu.
ment. and no reasons in support Of the
objection to the validity of the act are
assigned in the petition for the writ of
error. We presume. however, it is
based on 1.-THE idea that the act delegates Il
portion of tile legislative power which
is vested by the constitution in the
general assembly. and is therefore void.
But this is Il mistaken idea. The act is
complete in itself, and merely pre-
scribeS conditions upon which the sale
of Intoxicating liquors may he licensed
or prohibited altogether. In other words.
it prescribes a police regulation, and
leaves it to a popular vote to determine,
not whether it shall be lawful or un
lawful to sell Intoxicating liquors, but
whether license shall he granted or not.
This undoubtedly. it is as competent
for the legislature to do, as to leave it
to the county and corporation courts to
determine whether or not licenses shall
be granted. or to confer upon NUM-
ciual corporation the power TO regulate
the sale of liquors within its own limits,
or to adopt other like police regulations
for its government. The question has
often arisen in the courts of other
States, and willie the decisions on the
subject are not entirely uniform, the
great weight OF authority is unqueStion-
ably in favor Of the validity of such
statutes. This is the view taken by
Judge Cooley, who, in his work on con-
stitntional limitations lat p. 1923 ct
seql, discusses the question with his
usual clearness and ability. After re-
marking that the municipal charters re-
fer most questions of local government.
including police regulations to the local
authorities. who are presumed to be
better able to decide fur themselves up
! on the needs and sentiments OF their
constituents, than the legislature can he.
he adds: The same reasons would APP
ply in favor of permitting the people of
the locality to accept or reject for them
selves a particular police regulation,
since this is only allowing them less ex
tpnsive powers of local government
than a municipal charter would confer;
and the fact that therule of law on that
subject might he different III different
localities, according as the people ac-
ceptpd or rejected the regulation, woull
rot seem tn affect the principle. when
the same result is bl ought about by The
different regulations which municipal
corporations establish for themselves i'll
the exercise of all undlsputeu autllori-
ty."
The question came lefore the Sill
preme Judicial court OF Massachusetts
in the case of the Common wealth VS..
Bennett, los, Mass. p, in which the
validity of statute very similar to the
one we are now considering was Sus
tanned. The court said: "Many sue
cessive statutes of the Commonwealth
have made the lawfulness of the sales Of
Intoxicating liquors to depend upon
licenses from tho selectmen OF towns or