" In the case of Simpkins v. State, 35 Okla. Cr. 143 [ 249 P. 168], the court had under consideration a statute of Oklahoma providing that if a person driving an automobile had on or about his person any intoxicating liquors that fact would constitute prima facie evidence of such person having driven while intoxicated. After discussing the constitutional limitations as to legislation of that character the court said: "It is apparent that the presumption here created violates this limitation, since, in order to draw the conclusion of intoxication from the fact of the driver of an automobile having intoxicating liquors on his person or in said vehicle, there must first be the inference that the driver had used the intoxicants, and the further inference that he had used them to such an extent that he was under the influence thereof to the extent of intoxication.
This cannot be legally done. Simpkins v. State, 249 P. 168. Mr. S.M. Brewster, with whom Messrs. John L. Hunt and Bruce A. Campbell were on the brief, for Harris. Section 9-164, Revised Statutes of Kansas, is unconstitutional as a violation of the Fourteenth Amendment, because it seeks to create a prima facie presumption of assent by proof of a fact entirely unrelated to the main fact sought to be established.
Messrs. E.W. Mullins and Harold C. Seigler, of Columbia, for Appellants, cite: As to respondent, under the deedsin which it is the grantor, having the right to restrict the useof motor boats on Forest Lake, and not the right to prohibittheir use: 93 S.C. 397, 76 S.E. 1091; 2 Strob. 156; 165 S.C. 301, 163 S.E. 790; Webster's Dictionary; Black's Law Dictionary. As to power to regulate being power toestablish reasonable limitations but not power to prohibit: 232 Mass. 605, 124 N.E. 319, 321; 35 Okla. Cr. 143, 249 P. 168, 170. As to rule that deeds containing any ambiguitywill be construed most favorably to the grantee: 16 Am.Jur., Deeds, Sec. 165, 309
Defendant's cost of doing business was not determined by the trial court, and may not have been estimated or considered by defendant in making his plea of guilty. In these circumstances a majority of the court are of opinion that it is unnecessary in this case to discuss those parts of the statute which undertake to define the cost of doing business (see Latson v. Wells, 136 Ga. 681, 686, 71 S.E. 1052, 1055; Simpkins v. State, 35 Okla. Cr. 143, 150, 249 P. 168, 171; Fenner v. Boykin, 3 F.2d 674, 678. See, also, Wholesale Tobacco Dealers Bureau v. National Candy Co., supra; Balzar v. Caler, 82 P.2d 19, under a similar statute); that the contention that the statute is invalid for indefiniteness might not have been made if defendant had anticipated our holding that a sale for less than cost was criminal only when made "for the purpose of injuring competitors and destroying competition."
The ordinances of the defendant city relied on as defensive matter are void and without force and effect as applied to the property of Lombardo, for that, the legislative act of the State of Texas upon which the same rests does not delegate to the defendant city the power to prohibit the use of plaintiff's property as by him proposed but delegated only the power to regulate such use and the power to regulate thus delegated does not include the power to absolutely prohibit his using it for the purpose proposed. Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168; Dart v. City of Gulfport, 147 Miss. 534; 113 So. 441; Miller v. Jones, 80 Ala. 89; People v. Gadway, 61 Mich. 285, 28 N.W. 101. That said act of the legislature is unconstitutional in that it attempts to delegate to the governing authorities of the city the power or pretended power to absolutely prohibit Lombardo from using his property for any purpose other than that of a residence.
Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Vaughan v. State, 212 Ala. 461, 103 So. 38; Const. 1901, § 68; Brandon v. Askew, 172 Ala. 160, 54 So. 605; Code 1923, §§ 7265, 7280, 7282, 7285; Swindle v. Crocker, 217 Ala. 199, 115 So. 252. Abolition of commissions is not regulation thereof. State ex rel. v. Greene, 154 Ala. 249, 46 So. 268; Dunn v. Dean, 196 Ala. 498, 71 So. 709; Miller v. Jones, 80 Ala. 89; Ex parte Reynolds, 87 Ala. 138, 6 So. 335; Yahn v. Merritt, 117 Ala. 485, 23 So. 71; Ex parte Mayor, etc., 90 Ala. 516, 7 So. 779; Ex parte Cowert, 92 Ala. 94, 9 So. 225; Worthley v. Steen, 43 N.J. Law, 542; In re Opinion of the Justices, 232 Mass. 605, 124 N.E. 319; Madden v. State, 68 Kan. 658, 75 P. 1023; Investment Co. v. Trust Co., 65 Kan. 50, 68 P. 1089; Emporia v. Volmer, 12 Kan. 630; Johnson v. Philadelphia, 94 Miss. 34, 46 So. 526, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103; Simpkins v. State, 35 Okl. Cr. 143, 249 P. 168. In view of the effective date of the acts, section 281 of the Constitution has no application.
crossing at grade, or in approaching or going around corners or curves in said street, alley or highway, where the operator, driver or propellor of said motor vehicle has not an unobstructed view of at least 150 feet before the approach of such street, alley or highway, curve or corner, at a greater rate of speed than 15 miles per hour; provided, further, that any person or persons violating any provision of section 2 of this act, shall be guilty of a misdemeanor for the first offense and shall be fined not less than $25, nor more than $100, or imprisoned in the county jail for not less than ten nor more than 30 days, or by both such fine and imprisonment, and for the second offense shall be fined not less than $100, nor more than $1,000, or shall be imprisoned in the county jail for a period of time of not less than 30 days, nor more than six months, or by both such fine and imprisonment." Section 3 of the 1923 Act in part was held constitutional by the Criminal Court of Appeals in Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168. It was attacked on the ground of insufficiency of title to cover the provision making it a crime for a drunk person to drive a car, but the court held the title sufficient.
Such being the case, the speed at which appellant was driving was one of the circumstances which the jury might properly consider in determining whether he was under the influence of liquor at the time. If appellant desired that the jury should be warned that they should consider the evidence only for its bearing on that question, he should have requested an instruction to that effect. Hart v. State, 26 Ga. App. 64, 105 S.E. 383; Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168; State v. Jenkins, 203 Iowa 251, 212 N.W. 475. The second and third assignments of error go to the question of what extent of influence of liquor is required to justify a conviction under our statute.
This section has been passed upon by this court and the constitutionality of the act sustained. Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168. The defendant further complains that the court erred in giving its instructions to the jury, and in refusing to give the requested instructions of the defendant.
The contention made has several times been decided adversely to defendant's claim. McHenry v. State, 34 Okla. Cr. 154, 245 P. 1001; Butler v. State, 34 Okla. Cr. 239, 245 P. 1004; Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168. In the cases cited, the constitutionality of this statute has been fully considered.