In re Crane , 27 Idaho 671 ( 1915 )

PER CURIAM.

— The petitioner, Ed Crane, was arrested upon the charge of having intoxicating liquor in his possession in Latah county and upon preliminary examination had before a magistrate was held to answer said charge in the district court, and in default of bail was committed to the custody of the sheriff. This proceeding was commenced by filing a petition for a writ of habeas corpus to procure his release from custody.

The agreed facts necessary to a determination of the questions of law here presented are that on the 16th day of May, 1915, the petitioner had in his possession in Latah county a quantity of whisky for his own use and not for the purpose of selling it or of giving it away; that Latah county now is and on May 16, 1915, was a prohibition district within the meaning of secs. 2, 15 and 22 of chap. 11 (p. 41), Sess. Laws, 1915, which sections are as follows:

“See. 2. It shall be unlawful for any person, firm, company, or corporation, its officers or agents, to sell, manufacture or dispose of any intoxicating liquor or alcohol of any kind within a prohibition district or to have in his or its possession or to transport any intoxicating liquor or alcohol within a prohibition district unless the same was procured and is so possessed and transported under a permit as hereinafter provided: provided, that so long as the manufacture of intoxicating liquors for beverage purposes shall not be prohibited within the State by the Constitution or by general law applicable by its terms to the State as a whole it shall not be unlawful for any person, company, or corporation to manufacture intoxicating liquors for beverage purposes in a prohibition district for transportation to and sale outside of a prohibition district: provided, that nothing in this Act shall be construed to apply to the manufacture, transportation or sale of wood or denatured alcohol.”

“Sec. 15. It shall be unlawful for any person, to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors except as in this Act provided.”

“See. 22. It shall be unlawful for any person, firm, company, corporation or agent to have in his or its possession any intoxicating liquors of any kind for any use or purpose except the same shall have been obtained and is so possessed under a permit authorized by this Act.”

The only means provided by the act for procuring intoxicating liquors in a prohibition district for any purpose relates to wine to be used for sacramental purposes and pure alcohol to be used for scientific or mechanical purposes, or for compounding or preparing medicine, so that the possession of whisky, or of any intoxicating liquor, other than wine and pure alcohol for the uses above-mentioned, is prohibited.

One of the contentions made upon behalf of petitioner is that the sections quoted are in contravention of sec. 1 of the 14th amendment to the constitution of the United States, and also of sec. 13, art. 1 of the constitution of Idaho, and that the act in question is not a reasonable exercise of the police power of the state and is void. See. 1 of the 14th amendment to the constitution of the United States is as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Sec. 13 of art. 1 of the constitution of Idaho provides, among other things: “No person shall .... be deprived of life, liberty or property without due process of law.”

No fixed rule has been discovered by which to determine whether or not a statute of the nature of the one under consideration is a proper exercise of the police power, but it may be said the questions propounded to the courts are: Does the statute purport to have been enacted to protect the public health, the public morals, or the public safety? Has it a real and substantial relation to those objects, or is it, upon the other hand, a palpable invasion of rights secured by the constitution? Questions as to the wisdom and expediency of such legislation address themselves to the legislative, not to the judicial branch of the government.

In the ease of Ah Lim v. Territory, 1 Wash. 156, 24 Pac. 588, 9 L. R. A. 395, Mr. Justice Dunbar, quoting from Williams v. Cammach, 27 Miss. 209, 61 Am. Dec. 508, said: “The legislative pow;er ‘may be unwisely exercised or abused, yet it is a power entrusted by the constitution to the legislature, which, while - exercised within the scope of the grant, is subject alone to their discretion; with which the judicial tribunals have no right to interfere because, in their judgment, the action of the legislature is contrary to the principles of natural justice.’ ” (See, also, State v. Lewis, 134 Ind. 250, 33 N. E. 1024, 20 L. R. A. 52; People of State of New York ex rel. Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. ed. 75.)

Mr. Justice Hughes in delivering the opinion of the supreme court of the United States in case of Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. ed. 184, said: “That the state, in exercise of its police power, ■may prohibit the selling of intoxicating liquors, is undoubted. .... It is also well established that, when a state exerting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. . . . . With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose’, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the legislature, — a notion foreign to our constitutional system.”

Mr. Justice Harlan, delivering the opinion of the court in ease of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. ed. 205, said:

“It is, however, contended, that, although the state may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, ‘no convention or legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others.’ The argument made in support of the first branch of this proposition, briefly stated, is that in the implied compact between the state and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty or property, without due process of law, and with which the state cannot interfere; that among those rights is that of manufacturing for one’s use either food( or drink; and that while, according to the doctrines of the commune, the state may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself.

“It will be observed that the proposition, and the argument made in support of it, equally concede that the right to manufacture drink for one’s personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 113, 124, 24 L. ed. 77, 84, while power does not exist with the whole people to control rights that are purely and exclusively private, government may require ‘each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another.’

“But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under óur system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety.

“It , does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor 'of the validity of the statute, Sinking Fund Cases, 99 U. S. 700, 718, 25 L. ed. 496, 501, the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ‘To what purpose,’ it was said in Marbury v. Madison, 5 U. S. (1 Cranch.) 137, 167, 2 L. ed. 60, 70, ‘are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? ■ The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.

“Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent-spirits. There is no justification for holding that the state, under the guise merely of police regulations, Is here aiming to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to everyone, that the idleness, disorder, pauperism and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs anyone’s constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.

“This conclusion is unavoidable, unless the fourteenth amendment of the constitution takes from the states of the Union those- powers of police that were reserved at the time the original constitution was adopted. B.ut this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. ed. 923, that the fourteenth amendment has no such effect. After observing, among other things, that that amendment forbade the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property, and secured equal protection to all under like circumstances, in respect as well to their personal and civil rights as to their acquisition and enjoyment of property, the court said: 1 But neither the amendment — broad and comprehensive as it is — nor any other amendment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. ’ ’ ’

An examination of the opinion expressing a contrary view will disclose more of argument against the wisdom of such, legislation as this than of reason why the aid of the courts •may be invoked to defeat it.

The court of criminal appeals of Oklahoma in Ex parte Wilson, 6 Okl. Cr. 451, 119 Pac. 596, deciding that an act of the legislature making it unlawful for any person to have or keep in excess of one quart of intoxicating liquor is unconstitutional, quotes from a number of decisions wherein statutes similar in some respects to the act here under consideration have been held to be void, because not a reasonable exercise of the police power and in conflict with sec. 1 of the 14th amendment of the' constitution of the United States and with constitutional provisions similar to our sec. 13, art. 1. Quoting with approval from Commonwealth v. Campbell, 133 Ky. 50, 117 S. W. 383, 19 Ann. Cas. 159, 24 L. R. A., N. S., 172, it says:

“It will not require any elucidation to show that, if the citizen may be prohibited from having liquor in his possession, he can be prohibited from drinking it, because, of necessity, no one can drink that which he has not in his possession. So that if it is competent for the legislative body of any given city or district, or even the legislature of the state, to prohibit the citizen from having liquor in his possession, then a new and more complete way has been discovered for the establishment of total prohibition, not only in any precinct, town, or county, but throughout the state, because, if it is competent to prohibit the citizen from having liquor in his possession, it necessarily follows that he can neither sell nor use it, as it is a physical impossibility to do either without first having had the possession of the interdicted liquor.”

The same opinion contains the following quotation from the ease of State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847;

“The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so' for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals or safety of the public; and, therefore, the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgment of the privileges and immunities of the citizen without any legal justification, and therefore void.” (See, also, State v. Williams, 146 N. C. 618, 61 S. E. 61, 14 Ann. Cas. 562, 17 L. R. A., N. S., 299.)

Probably the author of none of these opinions would hesitate in holding that the sale of intoxicating liquor may be prohibited as a legitimate exercise of the police power and that such a law would not abridge any of the privileges or immunities of the citizens in such a way as to violate any constitutional provision. Still it must be admitted that if the possession of such liquor “can by no possibility injure or affect the health, morals or safety of the public,” the sale is equally harmless, for it only transfers the possession from one person to another. The fact is, that the harm consists neither in the possession nor sale, b.ut in the consumption of it. That is the evil which the people of Idaho, acting through the legislature, are trying to eradicate and since “it will not require any elucidation to show that, if the citizen may be prohibited from having liquor in his possession, he can be prohibited from drinking it, because, of necessity, no one can drink that which he has not in his possession,” and since great difficulty has been encountered in enforcing the prohibitory laws, the statement made by the learned jurist in the case of Mugler v. Kansas, supra, relative to the manufacture of intoxicating liquors for the maker’s own use, as a beverage, might well be repeated with respect to its possession, which would make it read:

“And so, if, in the judgment of the legislature, the possession of intoxicating liquors would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question.”

We have reached the conclusion that this act is not in contravention of see. 1 of the 14th amendment to the constitution of the United States, nor of sec. 13, art. 1, of the constitution of Idaho, that it was passed by the legislature with a view to the protection of the public health, the public morals and the public safety; that it has a real and substantial relation to those objects, and that it is, therefore, a reasonable exercise of the police power of the state.

It is next contended that there are subjects contained in the act under consideration which are not expressed in the title. Therefore, such portions of the act which are not expressed in the title are unconstitutional and void under art. 3, sec. 16, of the constitution. Said section, provides that “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.”

The title of the act is as follows: “Defining prohibition districts and regulating and prohibiting the manufacture, sale, keeping for sale, transportation for sale or gift, and traffic in intoxicating liquors and prohibiting drinking and drunkenness in public places in such prohibition districts, and fixing fines and penalties, and repealing chapter 27 and chapter 99 of the Session Laws of 1913.”

The objection urged to the sufficiency of the title is based upon the omission in the title of any reference to that portion of the act which prohibits “any person, firm or corporation or agent to have in his or its possession any intoxicating liquors of any kind for any use or purpose, except the same shall have been obtained and is so possessed under a permit authorized by this act ’ ’; also the failure of the title to refer to that portion of the act which provides that “The issuance by the United States of an Internal Revenue Special Tax Stamp or Receipt to any person as a dealer in intoxicating liquors shall be prima facie evidence of the sale of intoxicating- liquors by such person during the time the stamp or receipt is in force and effect.

“A copy of such Stamp or Receipt or of the record of the issuance thereof, certified to by a United States Internal Revenue officer having charge of such record is admissible as evidence in like case and' with like effect as the original Stamp or Receipt.”

Necessarily the title of an act must be brief. -The object of the title is to give a general statement of the subject matter, and such a general statement will be sufficient to include all provisions of the act having a reasonable connection with the subject matter mentioned and a reasonable tendency to accomplish the purpose of the act. The object of the title is not to state the reason for the passage of the act, or to give an index to its contents, but to give a general statement of the subject matter of the act. (Tarantina v. Louisville & N. R. R. Co., 254 Ill. 624, Ann. Cas. 1913B, 1058, 98 N. E. 999.) As was stated in ease of State v. Pioneer Nurseries Co., 26 Ida. 332, 143 Pac. 405, and other cases therein cited, “the title .... is sufficient if the act treats of but one general subject and that subject is expressed in the title.”

The act under consideration treats of but one general subject, namely, to limit the use of intoxicating liquors. There is nothing contained in the act that is not germane to the general subject or purpose expressed in the title. (Pioneer Irr. Dist. v. Bradley, 8 Ida. 310, 101 Am. St. 201, 68 Pac. 295 ; Montclair Township v. Ramsdell, 107 U. S. 147, 2 Sup. Ct. 391, 27 L. ed. 431.)

In People v. Parks, 58 Cal, 624, it is said: “Provisions of an act may be numerous; but however numerous, if they can be, by fair intendment, considered as falling within the subject matter of legislation, or necessary as ends and means to the attainment of the subject, the act will not conflict with the constitution.” Each and every part of the act in question comes within the subject matter of legislation, and is necessary as ends and means to the attainment of the object to protect the health, morals and promote the general welfare of the citizens of the state by the supression of the unrestricted use of intoxicating liquors.

The object or purpose of the clause in the constitution above quoted is to prevent, as has been frequently stated in the opinions of this court, the combining of incongruous matters and objects totally distinct, and having no connection nor relation with each other; to guard against “log rolling” legislation; and to prevent the perpetration of fraud upon the members of the legislature or the citizens of the state, in the enactment of laws. The history of the various sessions of the legislature of this state in dealing with the liquor question, and leading up to the passage of the act in question, conclusively precludes the idea that there was any fraud connected with the enactment of the statute under consideration. The unanimity of the legislature in the passage of the act under consideration is sufficient evidence of the fact that they acted with full knowledge of the contents of the bill, and understood the consequences of their act in so far as they were concerned.

It is a well-established rule that where there is a doubt whether the subject of the act is sufficiently expressed in its title, the doubt should be resolved in favor of the validity of the act. Even though we were in doubt as to the sufficiency of the title under consideration, we are admonished, in case of State v. Pioneer Nurseries Co., supra, to resolve that doubt in favor of the validity of the act. There is, however, no doubt in our minds as to the sufficiency of the title.

It is next insisted that the act in question is local and special; therefore, in conflict with sec. 19, art. 3, of the constitution, which provides that “The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: . . . . For the punishment of crimes and misdemeanors.....”

It is contended by some of the many friends of the court who appeared as counsel in this case that the statute is local and special legislation, for the reason that it makes an act a crime in prohibition territory which is not a crime in wet territory; and, therefore, said statute is not a declaration of a state policy, but is applicable only to counties that have adopted the local option law. However, it will be observed that the statute is applicable to every county in the state alike.

It is true that the act under discussion may have local application, but it is nevertheless a general law, as it applies to all of the counties in the state alike whenever the electors of any county or the county commissioners thereof, or the municipal authorities of any incorporated city or village, conclude to avail themselves of its provisions.

In Collier v. Cassady, 63 Fla. 390, 57 So. 617, it was said that a law is a general law which is potentially applicable to every county in the state, though at the time of its passage it applies to but some of the counties.

In Clark v. Finley, 93 Tex. 171, 54 S. W. 343, 345, the rule was enunciated that a local statute is one which relates to a particular person or particular thing of a class. And in State v. California Min. Co., 15 Nev. 234, it was said that a special law is one which applies only to an individual or to a number of individuals selected out of the class to which they belong, or to a special locality.

In People v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N. E. 596, 8 N. E. 788, it was said: “Whether laws are general or not, does not depend upon the number of those within the scope of their operation. They are general, ‘not because they operate upon every person in the state, for they do not, but because every person, who is brought within the relations and circumstances provided for, is affected by the laws.’ Nor is it necessary, in order to make a statute general, that ‘it should be equally applicable to all'parts of the state. It is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute.’ ”

This court in case of Mix v. Board of County Commissioners, 18 Ida. 695, 706, 112 Pac. 215, 32 L. R. A., N. S., 534, announced the following doctrine: “The local option law is of general application to every county in the state. While it is left with the people of each county to say whether it shall be enforced in the county, that fact does not make it any the less a general law .... under its terms and provisions the electors of each county have a right to vote upon the question whether the sale or disposal of intoxicating liquors as a beverage shall be prohibited in such county. Every county in the state may accept or reject it upon the same terms and conditions. It is clearly a ‘general law’ within the meaning of that phrase as defined by the leading law-writers, and the courts of last resort of the nation.....”

It has been argued that this law prohibits the use of alcohol by physicians and surgeons in the practice of their professions; that it is unnecessarily stringent and is, therefore, not a proper police regulation. The act expressly provides for the purchase and possession of pure alcohol to be used for scientific purposes. While it is not contended in this ease that petitioner had possession of the liquor for scientific purposes and while the liquor was not alcohol, but whisky, so that this question may properly have no bearing upon the decision of this ease, however, in order to set the minds of the citizens of the state forever at rest upon this point, we will say that the practice of medicine, surgery, dentistry and dental surgery are sciences, and that pure alcohol may be lawfully procured under the terms of this act in the manner provided therein for use in the practice of these professions, or by any person, citizen or hospital for any scientific or medicinal purpose. Webster defines the word “medicine,” used in the sense of the practice of medicine, as follows: “The science and art of dealing with the prevention, cure, or alleviation of disease.”

Quoting from the case of United States v. Massachusetts Gen’l Hospital, 100 Fed. 932, 938, 7 Words & Phrases Judicially Defined, 6350, refers to the word “science” as applied to surgery, as follows: “In the use of the word ‘science,’ it cannot be denied that practical surgery is ordinarily thus spoken of. Webster’s Dictionary describes surgery as a ‘branch of medical science.’ ”

Since the act provides for the possession of pure alcohol to be used for scientific purposes, those who procure it in conformity to the provisions of the law in order to legitimately make use of it for any scientific purpose will not thereby have violated the law.

It has also been argued that this act cannot become effective in local option districts other than those created since its adoption. We have reached a conclusion to the contrary. Section 1 expresses the legislative intent upon this point as follows:

“Sec. 1. A prohibition district within the meaning of this Act and all other acts regulating or prohibiting the traffic in intoxicating liquors shall be any county or incorporated city or village wherein the manufacture, sale, possession, keeping for sale, transportation for sale or gift of intoxicating liquors for beverage purposes is declared unlawful, whether such prohibition district be established by constitutional amendment, legislative enactment, adoption of the provisions of the local option law or by refusal of municipal authorities or county commissioners to grant saloon licenses.”

A number of counties of Idaho became prohibition districts at a time prior to the enactment of the law under consideration, pursuant to the provisions of an act of the legislature approved February 20, 1909, Sess. Laws, 1909, page 9, which is our original local option law, and which provides that counties may by vote determine whether or not the sale or disposal of intoxicating liquors as a beverage shall be prohibited.

It is quite possible that in some of these counties, at least, had that question been submitted to them the electors would have voted to reject the provisions of chapter 11 of the Session Laws, 1915, which make the mere possession of such liquors, in and of itself, a crime. We have reached the conclusion that it is unnecessary to submit the question of the adoption or rejection of the provisions of this law to the electors of prohibition districts created prior to its adoption.

It is said by Mr. Justice McCord in the case of Fitch v. State, 58 Tex. Cr. 366, 127 S. W. 1040, wherein is digested a large number of decisions upon this subject: “If an element should invade local option territory opposed to the enforcement of local option laws and should throw its force against the will of the people and by its craft and cunning devise schemes and means to defeat the purpose of the law and invent a method Avhereby, through the forms of law, they should evade the crime that had been defined by the legislature, it AA’ould be a monstrous doctrine to hold that the legislature is powerless to enact legislation defining offenses and prescribing penalties for the new conditions that may arise because the same was not an offense at the time that local option was adopted.” Further, quoting from the case of Dupree v. State, 102 Tex. 455, 119 S. W. 301, he said: “The purpose of the prohibition is to prevent the thing prohibited..... Prevention of crime is one of the objects to which the most anxious thoughts and the most constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method. Our codes are full of instances of this, too numerous and too familiar to need citation.” Continuing the opinion in the Fitch case it is said: “We, therefore, hold that the act of the thirty-first legislature making it a penitentiary offense to engage in the business of occupation of selling intoxicating liquors in local option territory is a valid law; that the same applies to territory that had previous to the enacting of said law adopted local option, and that the adoption of local option laws by the people does not withdraw that territory from legislative control to pass all needful legislation to make the local option laws effective, and to see that the will of the people is carried out. ’ ’

While this court holds that the act under consideration is applicable to all prohibition districts within the state of Idaho, whether they became such before or since its adoption, were it otherwise the argument in favor of restricting its application to those districts of later origin would not avail the petitioner. This court takes judicial notice that the county of Latah is a prohibition district by reason of the refusal of its board of county commissioners to grant liquor licenses and that no local option election has ever been held therein. Since the enactment of the law here under consideration no liquor license has been granted in that county, and it is, therefore, a prohibition district in contemplation of chapter 11 of the Sess. Laws, 1915, made and continued such by its board of county commissioners since the enactment of that chapter. Counsel for the petitioner and the prosecuting attorney have stipulated, upon this point, as follows: “That Latah county, is now, and was at all times herein mentioned, a prohibition district within the meaning of the act referred to, chapter 11 of the Session Laws of 1915 of the state of Idaho.”

By the provisions of chapter 28, Sess. Laws 1915, the entire state of Idaho is constituted a prohibition district and said chapter is made effective on and after January 1, 1916, upon and after which date the provisions of chapter 11, Sess. Laws 1915, will apply to the state at large; in the meantime it is effective in all prohibition districts within the state, whether created before or,after its adoption and whether created by constitutional amendment, legislative enactment, adoption of the provisions of the local option law or by the refusal of municipal authorities or county commissioners to grant saloon licenses.

The writ of haBeas corpus is quashed, and the petitioner is remanded to the custody of the sheriff.