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BARTEMEYER V. IOWA, 85 U. S. 129 (1873)

U.S. Supreme Court

Bartemeyer v. Iowa, 85 U.S. 18 Wall. 129 129 (1873)

Bartemeyer v. Iowa

85 U.S. (18 Wall.) 129


1. The usual and ordinary legislation of the states regulating or prohibiting the sale of intoxicating liquors raises no question under the Constitution of the United States prior to the Fourteenth Amendment of that instrument.

2. The right to sell intoxicating liquors is not one of the privileges and immunities of citizens of the United States which by that amendment the states were forbidden to abridge.

3. But if a case were presented in which a person owning liquor or other property at the time a law was passed by the state absolutely prohibiting any sale of it, it would be a very grave question whether such a law would not be inconsistent with the provision of that amendment which forbids the state to deprive any person of life, liberty, or property without due course of law.

4. While the case before the Court attempted to present that question, it failed to do it, because the plea, which is taken as true, did not state in due form and by positive allegation the time when the defendant became the owner of the liquor sold, and secondly because the record satisfied the Court that this was a moot case, made up to obtain the opinion of this Court on a grave constitutional question without the existence of the facts necessary to raise that question.

5. In such a case, where the supreme court of the state to which the writ of error is directed has not considered the question, this Court will not feel at liberty to go out of its usual course to decide it.

Page 85 U. S. 130

6. Per JUSTICES BRADLEY and FIELD. This case distinguished from the Slaughter-House Cases.

Bartemeyer, the plaintiff in error, was tried before a justice of the peace on the charge of selling intoxicating liquors on the 8th of March, 1870, to one Timothy Hickey, in Davenport Township, in the State of Iowa, and was acquitted. On an appeal to the circuit court of the state, the defendant filed the following plea:

"And now comes the defendant, F. Bartemeyer, and for plea to the information in this cause says: he admits that at the time and place mentioned in said information he did sell and deliver to one Timothy Hickey one glass of intoxicating liquor called whisky, and did then and there receive pay in lawful money from said Hickey for the same. But defendant alleges that he committed no crime known to the law by the selling of the intoxicating liquor hereinbefore described to said Hickey, for the reason that he, the defendant, was the lawful owner, holder, and possessor, in the State of Iowa, of said property, to-wit, said one glass of intoxicating liquor, sold as aforesaid to said Hickey, prior to the day on which the law was passed under which these proceedings are instituted and prosecuted, known as the act for the suppression of intemperance, and being chapter sixty-four of the revision of 1860, and that, prior to the passage of said act for the suppression of intemperance, he was a citizen of the United States and of the State of Iowa."

Without any evidence whatever the case was submitted to the court on this written plea, the parties waiving a jury, and a judgment was rendered that the defendant was guilty as charged, and he was sentenced to pay a fine of $20 and costs. A bill of exceptions was taken, and the case carried to the Supreme Court of Iowa, and that court affirmed the judgment of the circuit court and rendered a judgment for costs against the defendant, who now brought the case here on error.

There was sufficient evidence that the main ground relied on to reverse the judgment in the Supreme Court of Iowa

Page 85 U. S. 131

was, that the Act of the Iowa Legislature on which the prosecution was based, was in violation of the Constitution of the United States.

The opinion of that court was in the record, and, so far as the general idea was involved, that acts for suppressing the use of intoxicating drinks are opposed to that instrument, the court contended themselves with a reference to the previous decisions of that court, namely: Our House, No. 2 v. State, [Footnote 1] Zumhof v. State, [Footnote 2] Santo v. state; [Footnote 3] cases in which the negative of the idea is maintained. But, referring to the allegation in the plea that the defendant was the owner of the liquor sold before the passage of the act under which he was prosecuted, they said that the transcript failed to show that the admissions and averments of the plea were all the evidence in the case, and that other testimony may have shown that he did not so own and possess the liquor. [This, however, rather seemed, as the Reporter understood it, to be a mistake; at least the record, [Footnote 4] if he read it correctly, stated, as he has already said, that the plea was all the evidence given and received on the trial.]

The case was submitted on printed arguments some time ago, and when the Slaughter-House Cases, reported in 83 U. S. 16th Wall. 36, were argued; the position of the plaintiff in error in this case being, as it partly was in those, that the act of the state legislature, the maintenance of which by the courts below was the ground of the writ of error, was in violation of the Fourteenth Amendment to the Constitution, which runs thus:

"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 where 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. "

Page 85 U. S. 132

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