Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

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 that 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 toto, 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.

Mr. JUSTICE FARMER, also dissenting:

I agree with that part of the opinion of the court which holds that the provisions of the act authorizing the destruction of property are unconstitutional and void, and I agree with the dissenting opinion of Mr. Justice Duncan that those provisions are so interwoven with the other provisions of the act and are so material a part of it that it cannot be presumed the legislature intended that if those provisions were void the remainder of the act should be retained and enforced. It is my view, therefore, that the entire act should be held unconstitutional.

(No. 12920.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, vs. CATHARINE A. SHAFFER, Exrx. et al. Appellants.

Opinion filed December 17, 1919-Rehearing denied Feb. 5, 1920.

I. INHERITANCE TAX-when transfers are within the Inheritance Tax act. Transfers of property which were intended by the parties not to take effect in possession or enjoyment until at or after the death of the grantor are subject to an inheritance tax, even though such intention is not manifested in writing but is established by parol evidence of the acts and conduct of the parties.

2. SAME when transfer of life estates is taxable. Where a man conveys a farm to his wife and a year later joins with her in a conveyance of a life estate in the farm to their daughters, the transfer of the life estates is taxable at the death of the father some years later if the evidence warrants the conclusion that the deeds were, in fact, but one transaction and were not intended to take effect until the father's death.

APPEAL from the County Court of Macon county; the Hon. JOHN H. McCoy, Judge, presiding.

JACK & BOGGESS, for appellants.

EDWARD J. BRUNDAGE, Attorney General, FLOYD E. BRITTON, and JOHN W. Evans, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court: This is an appeal from the county court of Macon county from a judgment rendered in that court imposing a transfer or inheritance tax on certain property formerly owned by Francis M. Shaffer, now deceased. The appraiser fixed the transfer tax at certain amounts, and on appeal to the county court these amounts were modified, and the court fixed the tax on the property received by the widow at $902.55 and on the property received by the daughters at $696.27 each. From that judgment this appeal was taken by the widow and daughters.

Francis M. Shaffer died testate, eighty-one years of age, December 14, 1918. He left as his only heirs-at-law, Catharine A. Shaffer, his widow, and his twin daughters, Sallie Shaffer and Mrs. Laura S. Morrison. The property here in question upon which this transfer tax was levied was not mentioned in his will, the only property attempted to be bequeathed thereby being about $100,000 in personalty, largely government bonds, which he left, share and share alike, to his widow and two daughters. Practically the only question involved in this hearing is whether certain transfers of real estate made by him to his wife and daughters were intended to take effect in possession or enjoyment at or before his death. During his lifetime he had acquired by purchase at different times considerable farm property. He bought one tract of 320 acres in Piatt county, the date of this purchase not being shown in the record, but it is conceded that the purchase price was paid with his own funds. By other purchases with his own funds, commencing in 1879 and on succeeding dates, he acquired at different times 490 acres of farm land in Macon county, which was at the time of the purchases conveyed by the respective owners to his wife, Mrs. Shaffer. In 1893 she conveyed the Macon county farm of 490 acres to her husband, said Francis M. Shaffer. In 1910 he re-conveyed the same farm back to his wife. In 1911 he conveyed a life interest in the Piatt county farm to his wife, and on the same day the husband and wife joined in a deed to their twin daughters conveying a life estate in the Macon county farm to them. The appraiser and county court held that these life estates so conveyed to the widow and two daughters were subject to the transfer tax.

The only testimony taken on the hearing as to the controversial issues was that of the widow and two daughters. The wife testified that she remembered the making of the deed conveying to her a life estate in the Piatt county farm. She remembered her husband handing her the deed and

« ΠροηγούμενηΣυνέχεια »