People v. Marquis , 291 Ill. 121 ( 1919 )

Mr. Justice Duncan,

dissenting:

I concur in that part of the decision of the majority of the court that deals with and holds that the provisions of the Search and Seizure" act providing for the seizure and destruction of intoxicating liquors and the property used in their transportation are void because in violation of the constitution. I cannot concur with that portion of the decision which apparently recognizes the validity of the provisions of the statute which provide, in substance, that intoxicating liquors cannot be legally transported in this State and delivered to any person or consignee for any use or purpose other than that named in the act. The act clearly provides and intends, when considered in its entirety, that intoxicating liquors can only be lawfully transported in this State when the same are to be sold or used for medicinal, sacramental, chemical, mechanical or manufacturing purposes. Section 3 of the act specifically so provides. The only exception or provision in that section throwing any doubt upon "this interpretation is the proviso in that section, that nothing in the act shall be construed to forbid “any consignee from transporting his vessel or package of intoxicating liquor from the nearest place of delivery to the nearest carrier to the place where such liquor is to be used.” All semblance of such doubt is removed by section J of the act, which specifically provides that no carrier shall within prohibition territory turn over or deliver any intoxicating liquor, under any circumstances whatever, to any consignee whomsoever, exceptwhen consigned, first, to a druggist; second, wine to any bona fide church or religious society for sacramental purposes; third, alcohol to any person for chemical, mechanical or manufacturing purposes. Section 9 of the act permits intoxicating liquor to be sold by a druggist and delivered to a sick person on a written prescription of a physician who has personally examined such sick person and shall therein state that such person is in immediate need of the kind and amount of liquor prescribed, and shall also state definitely the place where such .liquor is to be used or administered. Under section 13 of the act any consignee, purchaser or person to whom any intoxicating liquor shall be delivered under the provisions of the act may receive a written permit from the sheriff to remove such liquor to another designated place, and the giving of such permit is wholly within the discretion of such officer.

No intoxicating liquors except those that are held and to be disposed of and used for the purposes aforesaid are permitted to be transported under this'act, within prohibition territory, in this State, by any person, as principal, clerk or servant. The whole State is declared to be prohibition territory by the decision in this case. “Intoxicating liquor” is defined by the act to include all distilled, spirituous, vinous, fermented or malt liquor which contains more than one-half of one per cent, by volume, of alcohol, and all alcoholic liquids, compounds and preparations, whether proprietary, patented,, or not, which are potable and which are capable of or suitable for being used as a beverage. It is thus clearly made to appear that no legal owner of any cider, wine or beer containing more than one-half of one per cent of alcohol, whether heretofore legally made by himself from his own apples, grapes or other products grown by himself, or whether heretofore legally purchased and stored in his cellar or home for his own and his family’s private home use as a beverage, is permitted by this act to transport and remove the same, either by himself or by another, to another place or home to be there used «by himself and family as a beverage. It also prohibits all possessors and owners of all other intoxicants whatever that were heretofore legally bought and stored by them and for their own private use as a beverage, from in any way transporting such liquors to any other place or home they may desire or have necessity to remove them in order that they may use them for such purpose.

It ought not to require any learned discussion or citation of authorities to convince any court or lawyer that , such a restriction upon the use or upon the transportation of property for private use is an invasion of the constitutional right of every citizen in this State. No court has ever declared, so far as I know, that a man has not the constitutional right to use as a beverage intoxicating liquor legally purchased and stored by him for such purpose, when used in moderation. He is denied that right when he is prohibited by statute from removing that liquor to another home or repository when necessity compels him to remove it in order ethat he may so use it. Such a denial is an invasion of his right of property.' The decision of the court in this case recognizes the right of property in the owner of the beer mentioned in this case and holds that it cannot be destroyed under this act but must be restored to such owner, yet in the same decision the court sustains the act which provides that it cannot be legally transported to or by the owner, to be used by himself as a beverage. It is his property and must be restored to him, but he cannot move and use it for .any purpose except as provided by the act. This amounts virtually to confiscation when we come to consider the proposition that beer’s recognized use in this country is almost exclusively as a beverage.

I believe that this statute is also entirely void as to the provisions in reference to the transportation of intoxicating liquor. It is clear that it is void in the particular already named, wherein it prohibits an owner from transporting such liquor to another home or place for his own use when necessity compels him to remove it to secure him such use. The general rule is that a statute void in part is void as a whole, if all the provisions of the act are so interwoven as to be incapable of distinct separation or are of such a character that it cannot be said that the legislature intended that the valid parts shall be enforced if the other parts fail, (1 Lewis’ Sutherland on Stat. Const. — 2d ed. — sec. 270.) The rule is more stringent in regard to criminal statutes. “A law void as to certain property [intoxicating liquors] already possessed at the passage of the law, but which would be valid if confined to such property subsequently acquired, is wholly void, being general, so as to include both in penal destruction of value.” (Ibid. sec. 299.) I am satisfied that the legislature would never have passed the Search and Seizure act with reference to the transportation of intoxicating liquors if it had known that so much of it was void as has been declared so by the opinion of the court in this case and as indicated in this dissenting opinion.

It necessarily follows from the foregoing discussion that^ it is my judgment that plaintiff in error Marquis was not proven guilty of any offense against the laws of this State. He was simply charged with unlawfully transporting intoxicating liquors containing more than one-half of one per cent alcohol in a certain auto truck over certain public highways in the county of McHenry, within prohibition territory, etc. It was neither charged nor proved in the trial the purpose for which the liquors were to be transported and used. If they were to be used by the consignee and legal owner for his own private use as a beverage, such transportation and use were legal although prohibited by said act. Such an owner for such a use had a right to transport such liquors, either by himself or another as his agent, and the agent would be no more guilty of an offense against the law than his principal. If the act of transportation had been for the unlawful purpose of selling the intoxicating liquor and the act prohibiting its transportation for sale could be sustained as valid on that ground, the court could not then legally assume, without proof, that the transportation was for such unlawful purpose merely because of the fact that Marquis was purposely avoiding certain towns and counties where he might be arrested under this act. The act provides that it is unlawful for the owner to transport such liquor for his own use, which rendered that much of the act void, but Marquis was as likely to be arrested for the violation of that part of the law as any other portion of it that might be held valid. So in any event, whether the act be only void in part or void in to.to, he cannot be properly convicted under the evidence. When a person’s act and conduct are such as to lead to two reasonable conclusions, — one that he is evading certain towns and counties because he is likely to be arrested for doing a lawful act prohibited by an invalid part of a statute, and the other that he is doing an unlawful act prohibited by the same statute, — he is entitled to the presumption that he was doing the lawful act and not the unlawful act. Marquis did not have to intentionally take all chances of an unlawful arrest to be entitled to his legal presumption of innocence. So in any view of the case I do not think the State made out any case against him. The judgment as to him should be reversed.

For the foregoing reasons I respectfully dissent from that part of the decision of the court sustaining the judgment of conviction as to plaintiff in error Marquis.