Advertiser Co. v. State ex rel. Attorney General, 69 So. 501

69 So. 501 | Ala. | 1915

GARDNER, J.

The bill in this case was filed by the state of Alabama, on the relation of the Attorney General, in the chancery court of Montgomery county, seeking an injunction against the Advertiser Company, a corporation, and certain named officers of said company, from publishing in the newspaper known as the Montgomery Advertiser advertisements of alcoholic or spirituous liquors. Temporary injunction was ordered issued by the chancellor upon the filing of the bill. From his decree overruling demurrer to the bill, and denying the motion of respondent to dissolve the temporary injunction, this appeal is prosecuted.

(1) The questions argued by counsel for appellant as of prime importance on this appeal were discussed and decided in the case of State v. Delaye, Infra, 68 South. 993, at present term, and therefore need no further treatment. The force and effect of the Del-mater Case, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733, referred to in the Delaye Gase, is fully recognized by counsel for appellant here. A full review of the Delamater Gase was had in'the above-mentioned Delaye Gase, where it was distinguished from some of the cases which counsel there deemed to be conflicting.

It is insisted that the Delamater Case is in conflict with that of Heyman v. Hays, 236 U. S. 178, 35 Sup. Ct. 403, 59 L. Ed. — , to which our attention was not directed in argument or brief in the Delaye Case. We have examined this case with much care, and do not find any such conflict. No such reference is made in it to the Delamater Case, and the principle of the latter case is not involved. The opinion in Heyman v. Hays, discloses that the business engaged in by the complainants in that case was recognized by the Supreme Court of Tennessee as being entirely legitimate and without the influence of the prohibition laws of that state, and after citing State v. Kelly Co., 123 Tenn 556, 133 S. W. 1011, 36 L. R. A. (N. S.) 171, the opinion states that: “The prohibitory liquor law (the four-xnile law) was held not to embrace a mail order business — that is, orders by mail from other states and the shipment from Tennessee to such other states by carrier — because such business was interstate commerce, not within state control.”

It is thus seen that the court in Heyman v. Hays Case was dealing with a status fixed by the state of Tennessee, recognizing the complainant’s business as -entirely legitimate. — State v. Kelly Co., supra. It logically followed that the court had only to apply the well-known rule as to- the want of authority in the state for the regulation of interstate commerce in a lawful business.' We are therefore of opinion that the Delamater Case is undisturbed by the decision in Heyman v. Hays.

It is also argued on this appeal that the act here under consideration is violative of that portion of section 45 of our state Constitution which provides that each law shall contain but one subject, which shall be clearly expressed in its title. This question had no discussion in the Delaye Case, for the reason that it was not presented in argument of counsel; it was given •some consideration, however/by the writer of the opinion. It is quite clear that, under our authorities, this Insistence is without merit.- — Toole v. State, 170 Ala. 41, 54 South. 195; Alford v. State, 170 Ala. 178, 54 South. 213, Ann. Cas. 1912C, 1093; Fulton v. State, 171 Ala. 572, 54 South. 688.

(2) It is insisted that the act is violative of our •Constitution, in that it impairs the obligation of contracts ; it being averred in the answer of the Advertiser 'Company that it has outstanding contracts for the pubplication of the advertisements now prohibited by law, an injunction of which is here sought. In State v. Delaye, supra, the court held that the advertisements forbidden by this law are in reality but solicitations for business, and that this state, possessing the unquestioned authority under its police powers to- prevent or regulate the sale of liquors within its borders, has also the power to prevent or regulate the carrying on of the accessory business of soliciting orders in this state. It was therefore held that this enactment was a proper exercise of the police power and in harmony with the legislative policy on this subject. In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, it was said:“Referring to the contention that the right to sell intoxicating liquors was secured by the fourteenth amendment, the court said that ‘so far as such a right exists, it is not one of the rights growing out of the citizenship of the United States.’ ”

And in the same authority is the following language quoted from the case of New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516: “The constitutional prohibition upon state laws impairing the obligation of contracts does not restrict the power of the state to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a state are subject to regulation for the protection of the public health, the public morals, and the public safety, in the same sense, and to the same extent, as are all contracts and all property, whether owned by natural persons or corporations.”

In Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989, is found the following language: “If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the state.”

It is clear from the authorities, therefore, that a citizen has no vested right to engage in the sale of liquor or to otherwise deal in it. The business is subject to the police power of the state, and it must necessarily follow that all contracts made in pursuance of such business are also subject to such police power, and no •one, therefore, can have a vested right to carry on the accessory business of soliciting orders for the sale of liquor when its sale is prohibited by law. As was said by the learned chancellor in his opinion, which is copied in this record: “His right to contract upon such subjects exists only upon legislative permission, subject to be withdrawn at any time; and he necessarily deals with the subject cognizant of such legislative power. The Legislature may in its discretion permit the sale of liquor though forbidding any and all advertisements in relation thereto; and such acts being a valid exercise of the police power, it cannot be said to impair any contract rights, as none exists in reference thereto. The act under consideration operates against the dealer who advertises, as well, as the publisher of such advertisements. I do not see, and in fact it is not insisted, how this act could be invalid so far as the dealer is concerned. * * * It would seem, therefore, that the contract rights of the publisher should not transcend those of the dealer for whom it publishes such advertisements.”

(3) It does not seem to be insisted by the appellant that it is bound by its contract with dealers as to these advertisements and subject to damages for a failure to perform. This question was treated in the case of Greil Bros v. Mabson 179 Ala. 444, 60 South. 876, 43 L. R. A. (N. S.) 871, where it was held that, where the act or thing contracted to be done is subsequently made unlawful by the Legislature, the promise is avoided. Likewise, where the performance depends upon the continued existence of a thing which is assumed as a basis of the agreement, the destruction of the thing by the enactment of a law terminates the obligation.

As hereinbefore stated, other questions presented on this appeal were fully treated in State v. Delaye, and a reference to that case is sufficient for present purposes.

We are of the opinion that the act of the Legislature here assailed, and commonly referred to as the “Anti-Advertising Liquor Law” (Acts 1915, p. 37), is not subject to the objections here urged, and is entirely valid. It follows that the decree of the chancellor, overruling the demurrer to the bill and denying the motion to dissolve the injunction was proper, and it is here affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.