State v. Rorvick , 76 Idaho 58 ( 1954 )

KEETON, Justice.

Respondent was charged in a criminal complaint filed in a Justice Court with the unlawful sale of beer, alleged to be an intoxicating liquor, to an Indian. The Justice sustained a general demurrer to the complaint. On appeal to the District Court of Bingham County, the District Judge likewise sustained a general demurrer and dismissed the proceeding. The State has appealed to this Court. The complaint charges:

“That George Rorvick of Fort Hall, Idaho, on or about the 26th day of September, 1953, at Fort Hall, in the County of Bingham and State of Idaho, then and there being, did then and there wilfully, knowingly, intentionally and unlawfully sell or furnish, or cause to be sold or furnished, intoxicating liquor, to-wit: beer, to one Wilford George, said Wilford George being then and there an Indian, contrary to the Idaho Code, Sec. 18—4201.”

It is the contention of the respondent that such complaint charges no crime in that the provision of the Code, Sec. 18-4201 I.C. prohibiting the sale of intoxicating liquor to an Indian, is unconstitutional and in conflict with Art. 1, Secs. 1 and 2 of the Idaho Constitution,¹ and the 14th Amendment to the Constitution of the United States.² Respondent argues that Sec. 3, Art. 6, of the Idaho Constitution was amended in the general election of 1950, by which amendment, disqualifications of Indians in certain particulars contained in the original article were eliminated; and since Indians, by the Constitution as now in effect, and congressional enactments by the Congress, 8 U.S.C.A. § 1401, have had conferred on them all rights of citizenship, such amendment and congressional enactment carry all privileges granted others as citizens of the State, including the right or privilege to buy intoxicants.

Respondent contends that Indians are now citizens of the United States and therefore the Legislature has no power to classify,- segregate, or discriminate against them, and that the statute prohibiting the sale of .intoxicating liquors to Indians is arbitrary, discriminatory and unreasonable, and denies the Indians, as a class, the equal protection of the law.

Federal and state statutes prohibitingthé sale of intoxicants to Indians are of early origin and were first enacted by colonies’ legislative bodies. The first Federal control measure was enacted in response to a plea by an Indian Chief, Little Turtle, to President Jefferson, who complained that the whites were selling intoxicating liquor to Indians which pauperized and demoralized them and is reported to have said:

“It is the introduction of this fatal poison which keeps them [the Indians poor. * * * Before anything can be done to advantage this evil must be r'emedied. * * * Since their [the Indians] intercourse with the white people and owing to the introduction of this fatal poison we have become less numerous and happy.” -Am. State Papers, Vol. 7 (Indian Affairs, Class II, Vol. 1) (1789-1815, p. 655.)' Ch. 17 —Handbook of Fed. Ind. Law. 352.

At different times, subsequent to this complaint to Jefferson, various Federal laws were passed and regulations promulgated prohibiting and controlling the vending.'. and .. distribution to Indians -of intoxicants.

Without reviewing cases and texts covering the subject matter suffice to say that such prohibitions and interdictions have been by the courts universally upheld, generally on two theories; first, the power of Congress to regulate commerce with Indians and Indian tribes, Art. 1, Sec. 8, Cl. 3, U. S. Constitution; and second, the duty to protect Indians from well recognized weaknesses and to protect the people with whom they come in contact. United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192; United States v. Holliday, 3 Wall. 407, 18 L.Ed. 182; Brown v. United States, 9 Cir., 8 F.2d 433; 42 C.J.S., Indians, § 76 p. 791; 27 Am.Jur. 577, Sec. 55; 31 C.J. 535, Sec. 122.

The Federal statute in effect during recent times, 18 U.S.C.A. § 1154, now amended, prohibited the furnishing of intoxicating liquor:

“ * * * to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship * *

This prohibition made-it unlawful to sell intoxicating liquor to Indians, coming within the prescribed classes, regardless of the. place in the United States where the sale is made. United States v. Miller, D.C., 105 F. 944; United States v. Holliday, supra; United States v. Osborn, D.C., 2 F 68; Brown v. United States, supra; Mulligan v. United States, 8 Cir., 120 F. 98.

18 U.S.C.A. § 1154 was modified by Congress on August 15, 1953, and by the amendment it limited the provisions of the inhibition as follows:

“The provisions of sections 1154 * * * 0f this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.” 18 U.S.C.A. § 1161, Crimes & Criminal Procedure.

We shall not review further the history of Federal prohibition laws and regulations making it an offense, under prescribed conditions, to sell intoxicating liquors to Indians, except to say that such prohibition and interdictions were enacted for the protection of the Indians, often at the Indians’ solicitation and request and to guard them from debasing influences and from being further imposed upon, cheated and wronged by their conquerors.

State statutes prohibiting the sale of intoxicating liquor to- Indians where Federal jurisdiction was not exclusive were 'at-an early time in'American history enacted" by the legislatures of many states, and .were generally upheld as a proper "exercise of police power to protect certain classes óf persons liable to be injured morally or physically by its use. The historical backr ground supports the conclusion that. Indians come within such class. The Legislatures recognized that the protection of the class and those with whom they came in contact was an advisable and proper regulation. People v. Gebhard, 151 Mich. 192, 115 N.W. 54; 27 Am.Jur. 577, Sec. 55.

It is unnecessary to review-the genetics or to indulge in a scientific analysis or discussion of anthropogeny to discover the reasons for the interdictions. Suffice to say that the historic background of laws prohibiting sale of intoxicants to Indians is well recognized and must now. be cpnsidered as firmly established.

In an early case, United States v. Holliday, 1865, 3 Wall. 407, 18 L.Ed. 182, the Court held even though Indians had conferred upon them rights as electors or citizens of a state, the Congress had jurisdiction to pass legislation making it a crime to sell intoxicating liquors to them.

in People v. Bray, 105 Cal. 344, 38 P. 731, 27 L.R.A, 158, the defendant was prosecuted under a provisoin of California Penal "Code, Sec. 397, making it a felony to sell intoxicating liquor to Indians. The defendant contended that it was not a violation to sell -intoxicating -liquor' to- -an Indian who, at the time of the sale, was a citizen of the State, and further contended that a law which takes from one person on account of color or race any privilege which others are permitted and allowed to enjoy, is void. The Court rejected the contention and held that even though the particular person of Indian blood to whom the intoxicating liquor was sold was not a member of any tribe and was living in a state of civilization and not under the jurisdiction of the Federal Government in any degree, nevertheless the interdiction was a proper exercise of police power. This decision was followed in People v. Lemon, 105 Cal. XVII, 38 P. 905, and in People v. Goodrich, 105 Cal. XVII, 38 P. 954.

Similar legislation in Montana prohibiting the sale of intoxicants to Indians was attacked as unconstitutional in Territory v. Guyot, 9 Mont. 46, 22 P. 134, 136. The Court upheld the legislation saying:

“There is no limitation upon the authority of a territory to pass laws for the regulation and restriction of ‘the sale of articles deemed injurious to the health or morals of the community.’ The act under consideration is clearly within the police power of the territorial government, as defined by the courts, and is not inconsistent with the constitution and laws of the United States.”

In State v. Mamlock, 58 Wash. 631, 109 P. 47, the constitutionality of a statute similar to that of Idaho was challenged. The Court upheld the act and rejected the contention that the facts established no crime, even though the particular person to whom the intoxicating liquor was sold was a citizen of the State. The Court said:

“The validity of state laws prohibiting the sale of intoxicating liquors to certain classes of persons who are peculiarly liable to be injured morally or physically by their use * * *, has so often been affirmed by the courts that the question is no longer an open one. * * * That the American Indian falls within the classes thus defined, whether he be a citizen of the United States or otherwise, is equally well settled.”

In State v. Nicolls, 61 Wash. 142, 112 P. 269, 270, the question presented was whether a person born of an Indian mother and a white father being a citizen of the United States is an Indian within the meaning of the law prohibiting the sale of intoxicating liquor to Indians. The Court said:

“But it does not follow that there is any merit in the contention of the appellant that, because Plaster [the Indian to whom the liquor was sold] was a citizen of the United States, he is not therefore an Indian * * * within the meaning of the law; or that being a citizen, the enforcement of the law would result in an unlawful discrimination between citizens, in violation of the rights, privileges, and immunities guaranteed by section 1 of the fourteenth amendment to the Constitution of the United States. The cases hearing upon the question of citizenship have no relevancy here. The power of the Legislature to pass all needful police regulations cannot be questioned, and so long as regulations bear with equal weight upon all of like situation or of the same class, they are universally upheld by the courts. The power of the Legislature to pass laws prohibiting the sale of liquor to Indians or those of Indian descent, rests upon the same principle of protection to the public as laws prohibiting the sale of liquor to minors, habitual drunkards, and the like.” Citing State v. Mamlock, 58 Wash. 631, 109 P. 47; 17 Am. & Eng. Ency. Law 345; Black, Intoxicating Liquors, 42.

In State v. Kenney, 83 Wash. 441, 145 P. 450, 451, it was held even though the Indian to whom the defendant was charged to have sold intoxicating liquor was a citizen of the State of Washington, such citizenship was no defense. The Court said:

“The statute [making it an offense to sell intoxicating liquor to an Indian] makes no exceptions in favor of citizen Indians or the offspring of those who are citizens. If there be the blood of an Indian to the degree of more than one-eighth in the person to whom liquor is given or sold, they are within the statute.” Citing cases.

In People v. Gebhard, 151 Mich. 192, 115 N.W. 54, the Court held:

“It is within the police power of the state to make it an offense to sell liquor to any person of Indian descent, though he is a citizen of the United States and of the state.”

In Dagan v. State, 162 Wis. 353, 156 N.W. 153, the prohibition was held applicable to a full blooded Indian who was a citizen and not a member of any tribe.

In Hallowell v. United States, 221 U.S. 317, 31 S.Ct. 587, 55 L.Ed. 750, it was held that an Indian allottee of land, though a citizen of the United States and entitled to the rights, privileges and immunities of such citizenship, was still a ward of the Government, and such citizenship would not take away jurisdiction of the United States to protect the Indian from the evil results of drinking intoxicating liquors. For other authorities see State v. Carman, 44 Utah 353, 140 P. 670; People v. Faust, 113 Cal. 172, 45 P. 261; United States v. Zumwalt, D.C., 186 F. 596.

By express provision of the Idaho Constitution, Art. 3, Sec. 26 confers power on the Legislature as follows:

“From and after the thirty-first day of December in the year 1934, the legislature of the state of Idaho shall have full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes.”

Pursuant to this provision and the plenary police powers of the State over the liquor traffic within its borders, the Legislature passed Ch. 132, 1935 S.L., and as thereafter amended, and as now codified, Ch. 10, Title 23, I.C. which by its terms authorized the sale of beer under circumscribed conditions. That the State has full power and authority to regulate traffic in and sale of intoxicating liquor within its borders regardless of Constitutional grant of power is well established. State v. Musser, 67 Idaho 214, 176 P.2d 199; In re Crane, 27 Idaho 671, 151 P. 1006, L.R.A. 1918A, 942; Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304; Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.

In Crane v. Campbell, supra [245 U.S. 304, 38 S.Ct. 99], the Supreme Court of the United States speaking through Justice McReynolds said:

“It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment.” Citing cases.

The right to vote or the conferring of citizenship has, by no authority that has been called to our attention, been considered a sufficient reason why an Indian, or other interdicted person, should be permitted as a matter of right to purchase intoxicating liquors; and all the authorities where the contention was considered have decided the matter adverse to respondent’s contention.

The business of selling intoxicating liquor is from its very nature subject to regulations and restrictions. A saloon has never been a favorite of the law, but at all times has been a business especially susceptible to strict regulations in many regards. Such strict regulations have been sustained because of the character and nature of the business, and as a proper exercise of the police power of the State. Sale to Indians was not prohibited because of their copper colored skin, or their coarse, straight, black hair, or affected by citizenship or absence of it.

When our statute prohibiting such sale was enacted, it strictly conformed to the thinking and beliefs of the day. All decisions upholding such legislation are clear and positive. Until very recently, no one questioned the soundness or logic of such decisions or the accuracy of the conclusions. The fact that many of the decisions above cited were decided many years ago does not discredit them. The logic and the reasons are still applicable. • • • ■

The Legislature has broad powers when acting under its police powers. What shall be done and how are matters for the Legislature; courts interfere only when the acts are incapable of being sustained.

The argument of respondent and amici curiae might properly be addressed to the

Legislature—not the courts.

Consumption of intoxicating liquors never advanced or benefitted any race or any people, and history proves that it has cursed and demoralized the Indians.

There is no natural or inherent right to deal in intoxicants and the sale of beer as a business can only be lawfully done as authorized by express legislation. The license or privilege granted the respondent to sell beer under prescribed conditions is a mere franchise which may be granted at the will of the Legislature, subject to such terms and conditions as the Legislature may see fit to prescribe. 48 C.J.S., Intoxicating Liquors, § 20, p. 154.

Sales of intoxicating liquor which are not within the terms of the conditions prescribed by the Legislature, or which are for purposes other than those specified, subject the licensee amenable to the criminal laws prohibiting such acts.

It is also within the province of the Legislature, regardless of citizenship, to specify classes and persons to whom sales of intoxicants shall not be. made. Statutes prohibiting the sale of intoxicating liquors to sailors and soldiers, and persons in the military service, Bailey v. United States, 6 Cir., 267 F. 559; to students, People v. Damm, 183 Mich. 554, 149 N.W. 1002; to minors, State v. Alvord, 46 Idaho 765, 271 P. 322; to Indians, 42 C.J.S., Indians, § 76, p. 791, and authorities cited supra, have been universally upheld as a proper regulation of the liquor traffic, and within the police power of the State.

Sec. 18-4201, I.C. claimed by the State to have been/violated in this proceeding was passed by the territorial legislature in 1879 and has continued in effect unrepealed and unamended. Laws regulating the sale of intoxicating liquors have been passed by the Legislature subsequent to that time, and the constitution in various particulars amended, and this is the first time that the statute in question has been challenged in the manner herein done. This interdiction has been a fixed policy of the State for seventy-five years. If the interdiction imposed is to be modified or repealed, such change or modification should be made by the Legislature.

The statute here attacked is general and uniform in its operation; it affects in the same manner all persons belonging to the class to which it refers, and is sustained by numerous decisions and by a historical background that cannot now be successfully challenged in the manner attempted.

Sec. 18-4201, I.C. does not violate either the Federal or State Constitution. No authority has been called to our attention which reached a contrary conclusion.

The judgment is reversed with instructions to the trial court to reinstate the complaint, overrule the demurrer, permit the defendant to plead further, and proceed from there.

PORTER, C. J., and BAKER, J., concur.

1 . “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.”

2 . “All persons bom 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.”