ERROR TO THE SUPREME COURT OF THE STATE OF OHIO
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
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 14, 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 5 of the Constitution of the United States; it contravenes article 6 of the Constitution of the United States, in that the accused cannot enjoy the right to a speedy and public trial
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. Eilenbecker v. Plymouth County, 134 U.S. 31. Our 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 law.
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 dealers 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 follows: "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 of
public resort." 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; may be a saloon keeper, 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 ...