State v. Deschamp

Battle, J. Appellee, Deschamp, was indicted for a violation of the act of the general assembly of the State of Arkansas, entitled, ‘ ‘An act to regulate the sale of wine in the State of Arkansas,” approved April 3, 1889, which provides: ‘ ‘ Section 1. That it shall be unlawful for any person to sell wine at any place in this State except as authorized in this act. ‘‘Sec. 2. Any person who grows or raises grapes or berries may make wine thereof, and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart; such person may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart. Provided, This shall not authorize the sale of wine in any district or locality where its sale is prohibited under special act of the general assembly. “Sec. 4. Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than two hundred dollars nor more than five hundred dollars.’’ He was indicted for unlawfully selling one quart of wine. The act which rendered the sale unlawful is set out in the indictment as follows: “The said sale not being made upon the premises where the grapes and berries were grown and the wine made, and said sale not being made in any place where the sale of intoxicating liquors are licensed and authorized by law.’’ A demurrer to the indictment was sustained, and the State appealed. i. Wine act of 1889— Discrimination against wines of other States. The only question presented for our consideration is, is the act of April 3, 1889, in violation of the Federal constitution ? We think so. The effect of it is to allow any person to grow or raise grapes or berries within any district now or hereafter formed under section 4524 of Mansfield’s Digest and make wine thereof, “and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart,’’ and to prohibit the sale in such districts of wine made out of grapes or berries grown out of this State. This question has often been decided by the Supreme Court of the United States, and that court holds that such acts are unconstitutional. Whether this decision be satisfactory or not, it is the duty of the State courts to follow it, the question decided arising under the constitution of the United States. Webber v. Virginia, 103 U. S., 344; Tiernan v. Rinker, 102 U. S., 123; Guy v. Baltimore, 100 U. S., 434; Woodruff v. Parham, 8 Wal., 123; Waring v. Mayor, 8 Wal., 110; Walling v. Michigan, 116 U. S., 446; Robbins v. Shelby Taxing District, 120 U. S., 489; Leisy v. Hardin, 135 U. S., 100; Lyng v. Michigan, 135 U. S., 161; Marsh v. State, 37 Ark., 356; State v. McGinnis, 37 Ark., 362. a. Act unconstitutional in part —GooiprotanBut the unconstitutional parts of this act may be stricken 0ut, and the remainder of the act left to stand. It was man-1 ¡festiy the intention of the legislature to prohibit, the sale of wine in quantities less than a quart, and to prohibit the sale of it in the districts formed under section 4524 of Mansfield’s Digest, except that made from grapes or berries grown in the district, and to restrict the sale of it to the premises on which the grapes or berries from which it was made were grown or raised, and the wine made. By striking out the words, “at any place,’’ in the first section, and the words, “upon the premises where such grapes or berries are grown and the wine made,’’ in the second section, we have a valid act, and the will of the legislature declared therein to some extent. To this extent the act will remain in force. Marsh v. State, 37 Ark., 356; L. R. & F. S. Ry. v. Worthen, 46 Ark., 312, 328; Davis v. Gaines, 48 Ark., 370, 383. We notice that the style of laws required by the constitution, “the enacting clause,” is omitted in the act as published, but find that it properly appears in the act as it passed the general assembly. Judgment affirmed.