The first eight articles of the amendments to the Constitution
of the United States have reference to powers exercised by the
government of the United States, and not to those of the
The power of the state over the liquor traffic is such that the
traffic may be absolutely prohibited, and that being so, it may be
prohibited conditionally, and a local option law does not
necessarily deny to any person equal protection of the laws because
the sale of liquor is by the operation of such a law a crime in
certain territory and not in other territory.
This Court will not anticipate the judgment of the state court
by deciding what persons are qualified to act as jurors before the
trial and one who is to be tried cannot complain until he is made
It is not necessarily a deprivation of liberty or property
without due process of law to commit to the judgment of a court the
amount of punishment for illegal liquor selling.
The Ohio local option law regulating the sale of liquor is not
unconstitutional as depriving one attempting to sell liquor in
that, if the state in which such sale is prohibited of his liberty
or property without due process of law or denying him the equal
protection of the laws.
The plaintiff in error was committed to custody upon a warrant
for violating the law of Ohio called the "Beal Local Option Law."
He petitioned in habeas corpus for his discharge to one of the
judges of the state having jurisdiction. On hearing, he was
remitted to custody, and the judgment was affirmed by the supreme
court of the state. This writ of error was then sued out. The
question involved is the constitutionality of the law.
The facts constituting the violation of the law were alleged to
be the unlawful selling and furnishing to one E. L. Scott, a
resident of the City of Cambridge, six pints of beer, and with
keeping a place where intoxicating liquors are kept for sale,
Page 194 U. S. 446
given away, and furnished for beverage purposes. The sale was
not within any of the exceptions of the law.
In the petition for habeas corpus, it was alleged that plaintiff
in error was arrested by a constable of the Township of Cambridge
upon a warrant issued by a justice of the peace in and for the
Township of Center, Guernsey County, Ohio, which township is
outside of the geographical boundaries of the City of Cambridge,
where the violation of the law was claimed to have occurred.
That, by virtue of the arrest, plaintiff in error was committed
to jail in the County of Guernsey, and there imprisoned by J. B.
Dollison, the sheriff of the county.
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
The petition alleged that the law violated the constitution of
the state in certain particulars. We omit the allegations, as the
supreme court of the state decided against their sufficiency, and
its judgment is not open to our review.
Wherein the law offends the Constitution of the United States
was expressed as follows:
"It contravenes Section 1, Article XIV, of the Constitution of
the United States in that it denies to this defendant and other
persons within its jurisdiction the equal protection of the law; it
deprives said defendant and other citizens of their liberty and
property without due process of law; it contravenes Article V of
the Constitution of the United States; it contravenes Article VI of
the Constitution of the United States, in that the accused cannot
enjoy the right to a speedy and public trial
Page 194 U. S. 447
by an impartial jury of the state and district wherein the crime
is and shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation, in this, to-wit, that said jury cannot be
selected by any previously enacted law from the territorial
district, to-wit, of the City of Cambridge, which district, and
within which district alone, said crime, if any, is, was, and could
have been committed."
All of these objections, however, are not open to the plaintiff
in error to make. It is well established that the first eight
articles of the amendments to the Constitution of the United States
have reference to powers exercised by the government of the United
States, and not to those of the states. Ellenbecker v. Plymouth
County, 134 U. S. 31
consideration, therefore, must be confined to the contentions under
the Fourteenth Amendment. Those contentions are that the Ohio
statute denies plaintiff in error the equal protection of the law
and deprives him of liberty and property without due process of
The first contention can only be sustained if the statute treat
plaintiff in error differently from what it does others who are in
the same situation as he -- that is, in the same relation to the
purpose of the statute. The statute is too long to quote at length.
It is a local option law. It permits the municipal corporations of
the state to prohibit
"the selling, furnishing, and giving away of intoxicating
liquors as a beverage, or the keeping of a place where such liquors
are sold, kept for sale, given away, or furnished."
It excepts druggists in certain cases, and manufacturers when
selling in wholesale quantities to "bona fide
trafficking in intoxicating liquors, or in wholesale quantities to
any party residing outside of the limits of said municipality."
What constitutes a "giving away" is expressed in the statute as
"The words, 'giving away,' where they occur in this act, shall
not apply to the giving away of intoxicating liquors by a person in
his private dwelling, unless such private dwelling is a place
Page 194 U. S. 448
By a subsequent statute, it was enacted that each railway
corporation which shall maintain or conduct dining or buffet cars
upon any one of its trains, and shall desire to dispense
intoxicating liquors on such cars, may do so by obtaining a license
from the state, upon the payment of $300 or $700, accordingly as
the corporation operates either 200 or 700 miles of railway within
the state. It is not clear whether plaintiff in error relies on
that act as a part of the other, and an addition to its
discriminations. Assuming him to do so, the exceptions in the
statute are druggists, manufacturers, persons who give away liquors
in their private dwellings, and railway corporations dispensing
liquors in dining and buffet cars under state license.
These exceptions constitute the inequalities of the statute upon
which plaintiff in error bases his contention. He is not one of the
excepted classes. He is a retail dealer of liquor -- maybe a
saloonkeeper, but of that the record does not clearly inform us. If
between his occupation and the excepted occupation there is such
difference as to justify a difference of legislation, necessarily
he cannot complain, and we think there is a manifest difference. It
is equally manifest if we should regard him as "giving away" his
liquor. That act may not have the same objectionable consequences
when done in a private dwelling as when done in a saloon or other
place of business. The state may look beyond the mere physical
passing of liquor from one person to another, and regard and
constitute the place where it is done the essence of the offense.
But even if the discriminations of the statute were less obviously
justifiable, we might not be able to condemn them. Missouri,
Kansas & Texas R. Co. v. May, 194 U.
Plaintiff in error further urges that to make an act a crime in
certain territory and permit it outside of such territory is to
deny to the citizens of the state the equal operation of the
criminal laws, and this he charges against, and makes a ground of
objection to, the Ohio statute. This objection goes to the power of
the state to pass a local option law, which we think
Page 194 U. S. 449
is not an open question. The power of the state over the liquor
traffic we have had occasion very recently to decide. We said,
affirming prior cases, the sale of liquor by retail may be
absolutely prohibited by a state. Cronin v. Adams,
192 U. S. 108
That being so, the power to prohibit it conditionally was asserted,
and the local option law of the State of Texas was sustained.
Rippey v. Texas, 193 U. S. 504
The next contention of plaintiff in error is that, under the
statute, he is not on equal terms with all others accused of crime.
He attempts to support this contention by a provision of the
Constitution of Ohio and a decision of the Supreme Court of that
state. By the constitution of the state, those charged with crimes
are guaranteed "a speedy public trial by an impartial jury of the
county or district in which the offense is alleged to have been
committed." The supreme court, considering this provision, said in
Cooper v. State,
16 Ohio St. 328:
"The right of the accused to an impartial jury cannot be
abridged. To secure this right, it is necessary that the body of
triers should be composed of men indifferent between the parties,
and otherwise capable of discharging their duty as jurors. . . .
This duty is enjoined by the Constitution, and, it is true, cannot
be impaired, or the right abridged by legislative action."
Applying the Constitution and the decision, plaintiff in error
asserts that the district in which his offense was committed was
necessarily the area of the operation of the statute, and it is
only jurors selected from such district that will be indifferent
between the state and him. It is only such jurors, he urges, that
are his peers, and he defines a peer to be one "capable of
committing a like crime, and suffering a like punishment, and
liable to a like disgrace."
There are two answers to the contention. First, it must be
inferred from the decision of the supreme court in the case at bar
that plaintiff in error does not construe correctly either the
constitution of the state or the opinion he cites. Second,
Page 194 U. S. 450
plaintiff in error has not yet been tried. What the courts of
the state may decide as to juries, we do not wish to anticipate,
and plaintiff in error cannot complain until he is made to
The final contention of plaintiff in error is that the statute
of Ohio deprives him of due process of law. The only additional
argument advanced on this contention is that the statute does not
define the words "wholesale" and "retail," and fails to limit the
amount of the fine or penalty to be imposed by the court. This
omission of the general assembly, it is said, vests legislative
power in the judiciary, which cannot be done in a republican form
Of this contention we need only observe that, if a case can
exist in which the kind or degree of power given by a state to its
tribunals may become an element of due process under the Fourteenth
Amendment, it would have to be a more extreme example than the Ohio
statute. Wholesale and retail are pretty well known terms, and
present less uncertainties than many terms submitted to courts for
interpretation. Besides, would it not be strange to hold that a
statute unaccompanied by a glossary of its terms leaves unfulfilled
the legislative power?
The statute declares a person guilty of a violation of its
provisions to be guilty of a misdemeanor, and imposes a penalty for
a first and second offense, a maximum and minimum fine, and for any
subsequent offense a fine of not less than $200 and imprisonment of
not more than sixty days and not less than ten days. Ohio
Rev.Stat., sections 4364-20b. As we understand the argument of
plaintiff in error, his objection is directed to the penalty for
the third and subsequent offenses. We might dispose of the
objection by saying it anticipates the future too much. He is not
now concerned with that penalty. He has not yet been convicted of a
first offense, as far as the record shows. Indeed, the charge
against him presumably is based on his first offense. But,
considering him entitled to make the objection, we may answer
Page 194 U. S. 451
it and close the discussion by observing that it is not an
extreme discretion to commit to the judgment of a court, in the
manner provided by the Ohio statute, the amount of punishment to
fix for illegal liquor selling.