Davis v. State

SOMERVILLE, J.

Thе indictment in this case, which was found at the fall term of the Circuit' Court of Dallas county, charges that William Davis, the appellant, “did, after sun-down and before sunrise of the succeeding day, transport or remove, in Dallas county, cotton in the seed, against the peace and dignity of the State of Alabama.”

The questions raised involve the sufficiency of the indiсtment, and the constitutionality both of the law under which it was found, and under which the grand jury finding it was organized. The points are presented by demurrer and motion made in arrest of judgment, both of which were overruled by the Circuit Court.

The grand jury, by which the indictment was found, and the petit jury by which the appellant was tried, were drawn and organized under the provisions of an act, approved December 19, 1876.—Session Acts 1876-7, pp. 190-193. This act, which is specially applicable only to the county of Dallas, and five other сounties in the State, provides for the appointment of five commissioners by the Governor, in each of the counties designated, who are authorized to discharge and perform, in their respective counties, all the duties in relation to the [sjelection and drawing of grand and petit jurors, now required by law to be performed by the judges of probate, sheriffs and clerks of the Circuit or City Courts of said counties.” The duties, term of office and compensation of these commissioners are prescribed, as also the qualification of the jurors to be selected. It is entitled “An act to secure more effectually competent and well qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock.”

We сan see no valid objection to this act on constitutional grounds. There is no prohibition to be found in the Constitution, express or implied, as held by this court, in Williams v. State, 61 Ala. 33, which limits or restrains the power of the Legislature to regulate the entire subject of the selection and organization of juries, or to make a special law, applicable to particular counties or designated localities, varying in its provisions from the general law of the sovereign jurisdiction. And this conclusion may be said to be based on a principle recognized by the best writers on constitutional law.—Cooley on Const. Lim. 170.

The present indictment is found under section 2 of an act of the Legislature, entitled “an act to prevent, in certain cases, the sale, exchange and transportation of cotton in the counties of Montgomery, Bullock, Dallas, &c.”—Acts 1878-79, p. 206.

The first section of this act makes it unlawful, with certain reservations, for “any person to sell or offer for sale, barter, exchange or buy,” within the specified localities, “any cotton in the seed," or to sell or offer for sale, &c., any cotton in the seed produced in said localities.

Section 2 provides, “that it shall ‍‌‌​‌​​‌​​​​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌​‍not be lawful for any person to transport or move, after sunset and before sunrise of the succeeding day,” in said localties, “any cotton in the seed.” A proviso permits the owner or producer of the сotton to remove it from the field, where it is grown, to the gin-house or other place of storage of such owner or producer. Section 5 makes it a felony where any one “knowingly violates” any of the provisions of the act, and affixes punishment by confinement in the penitentiary.

It is insisted that this act is in violation of the Constitution and therefore void, as an improper exercise of legislative power; that it unjustly and injuriously discriminates against the particular counties included in the law, and subjеcts persons resident there to deprivation of liberty and property, without due process of law, within the meaning of § 7 of Art. 1 of the State Constitution (1875), and of § 1, Art. 14 of the amendments to the Constitution of the United States.

We confine our discussion of this objeсtion to section 2 of the act in question, the one under which the indictment is found.

In our inquiries into the naturejand limits of legislative power, as affecting this subject, we are not disposed to controvert or materially qualify the principle so emphаtically enunciated by this court, in Dorman v. State, 34 Ala. 216, (236); that there are no limfis to the legislative power of the State government, save such as are written upon the pages of the State or Federal Constitution.” “It has never been questioned, so far as I know,” says Rеdfield, C. J., in Thorpe v. R. R. Co., 27 Vt. 142, “that the American Legislatures have the same unlimited power in regard to legislation, which resides in the British Parliament, except where they are restrained by written constitutions. That must be conceded, I think,” he says, “to be a fundamental principlе in the organization of the American States.”—Cooley on Const. Lim. 88-89. And this power and jurisdiction of Parliament, as expressed in the familiar language of Sir Edward Coke, “is so transcendent that it cannot be confined, either for causes or persons, within аny bounds.”—2 Coke Ins. 36.

This great constitutional axiom is, of course, to be taken as qualified by the necessary implication that the act, which is subjected to scrutiny, is purely legislative in its nature and not judicial nor executive.

“This court,” as said by Chase, C. ‍‌‌​‌​​‌​​​​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌​‍J., in the License Tax Cases, 5 Wall. 469, “can know nothing of public policy except from the Constitution and the laws, and the cause of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as pоlitic or impolitic. Considerations of that sort must be addressed to the Legislature. Questions of policy there are concluded here.”

“If,” as said by Mr. Justice Walker, in Dorman v. State, supra, “while-keeping within the limits which the sovereign power has prescribed for its action, it [the Legislature] yet violates the abstract principles of justice, and disregards the boundaries of natural right, there is no remedy save in the punitive power of public opinion, and the right of the people to change the representatives of their legislative sovereignty, and through them to repeal the obnoxious enactment.”—34 Ala. 235.

It is argued that this statute, under consideration, is such a despotic interference with the right of private property as to be tantamount, in its practical effect, to a deprivation of ownership “without due process of law.” The definitions of this phrase, “due process of law,”" are so various, in the reported American decisions, that it would be unsatisfactory to attempt an accurate definition of it here. Omnis definitio in jure periculosa est, is a wise maxim of judicial caution, a want of proper regard for which has aggravated that proverbial uncertainty of the law, so frequently charged to be its chief reproach, it is sufficient to say that this constitutional barrier was “intеnded to protect property from confiscation by legislative enactments, and from seizure, forfeiture and destruction, without a trial and conviction by the ordinary modes of judicial proceeding.”—Wynchamer v. People, 3 Kernan, 366-7, (20 Barb. 567); Zeigler v. S. & N. R. R. Co. 58 Ala. 594. It is not, nor can it be maintained, that the act in question goes, or attempts to go this far. It has never been seriously questioned that the jus disponendiA is not an absolute, unqualified or indispensable right attaching to property, but is subject to such regulations, not inconsistent with the Constitution, as, in the judgment of the law-making powers, the interеsts of society and good government may require. Wynchamer v. People, 20 Barb. 567, (604); Dorman v. State, supra. The prohibition in section 2 against transporting or moving is eonfiued to “cotton in the seed,” and to such hours as intervene between sunset of one day and sunrise of the succeeding day. It does not inhibit all transportation, but seeks only to regulate and control it, in one particular cоndition of a commodity. We regard this as a mere police regulation, the alleged impolicy or injustice of which is beyond the legitimate scope of judicial criticism. The primary object of this law is not to interfere with the right of propеrty or its vendible character. Its object is to regulate traffic in the staple agricultural product of the State, so as to prevent a prevalent evil, which, in the opinion of the law-making power, may have done much to demoralize agricultural labor and destroy the legitimate profits of agricultural pursuits to the public detriment, at least within the specified territory. This the Legislature had the power to do.—Tiffany’s Gov. & Const. Law, § 318; Beer Co. v. Massachusetts, 97 U. S. (7 Otto) 25; Bartemeyer v. Iowa, 18 Wall. 129. There is no constitutional objection to it.—Munn v. Illinois, 94 U. S. (4 Otto), 113. In discussing the subject of a prohibitory liquor law, confined to a sрecified ‍‌‌​‌​​‌​​​​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌​‍locality, which was urged as being violative of this same clause in the Constitution, Walker, J., in Dorman v. State, supra, used the following language, to which it is not necessary, for the purposes of this case, that we should give our unqualified assent: “The prohibition,” says he, “must be оf such a character as, in effect, to annihilate, within the entire domain covered by the legislative authority, the quality of sale which makes the property valuable to the owner, and thus to sweep it, as an article of traffic, from the commerce of the State. If any substantial right of sale within the State is left untouched by the law, this, it is admitted, will save its validity.”—34 Ala. 242.

It is further argued, in substance, though not in so many words, that this act operates as a denial by the State to certain persons of that “equal protection of the laws” which is secured to every citizen by section 1, article 14 of the Amendments to the Constitution of the United States.

There is nothing, in our opinion, in either the Federal Constitution or that of the State, which prevents the Legislature from еnacting local laws, different in their provisions from the general code of laws for the State, and operating-only in certain counties or limited territorial districts. This principle is sustained by the best approved writers on constitutional law, and was settled by this court more than twenty years ago in Dorman v. State, supra, and again more recently in Board of Revenue v. Barber, 53 Ala. 589; Cooley on Const. Lim. 170.

It was also discussed and fully established by the Supreme Court of the United States in the very recent case of Missouri v. Lewis, 101, U. S. Rep. (11 Otto) 22. It is there held that “a State may establish one system of law in one portion of its territory and another system in another,” within the limitations of the Constitution, provided it does not deny to any person within its jurisdiction “the equal protection of the laws in the same district.” And it is asserted that each State has full power to “make, for municipal purposes, pоlitical divisions of its territory, and regulate their local government.”

Mr. Justice Bradley, in delivering the opinion of the court, says: Convenience, if not necessity, often require this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right. Wе think it is not denied or taken away by anything in the Constitution of the United States, including the amendments thereto.” And again : “If every person residing or being in either portion of the State should be accorded .the equal protection of the latos prevailing there, he could,..not, justly complain of a violation of the clause referred to. Eor, as before said, it has respect to persons,¡¿not classes. It means ‍‌‌​‌​​‌​​​​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌​‍that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place, or under like circumstances, 1b. 31.

Suggestion merely, and not argument, is needed to show that this legislative enactment, severe 'as it may be in its penalties, affixes equal punishment upon all persons, without exception, who may viоlate its provisions.

The objection is urged by the appellant that the indictment uses the words “transport or remover while the words of the act are “transport or move.” While it is the better practice, as said by Brickell, C. J., in Holly v. State, 54 Ala. 238, to follow the exact words of the statute, those equivalent in meaning are sufficient. We consider the words “move” and “remove,” as here used, to be equivalent in meaning.

We are of opinion,, however, that the indictment is defective in another respect. It fails to charge that the defendant knowingly committed the act for which he is criminally indicted. The statute is highly penal in its character, and creates a new crimе unknown to the common law. Section 5 makes knowledge of the facts essential to the crime, deeming him alone guilty “who knowingly violates any of the provisions” of the act. The general rule of pleading is, that every indictment, information or other сriminal proceeding, ought to contain all that is material to constitute the crime, or every necessary ingredient of the offense, stated with precision, or at least certainty, and in the customary forms of law.—3 Greenl. Ev. § 10; Beasly v. State, 18 Ala. 535. A crime is committed only by a combination of act and intent. “No amount of intent аlone is sufficient, neither is any amount of act alone; the two must combine.”—1 Bish. Cr. Law, § 430 (6th ed). In the particular crime here charged, there are forcible reasons for the application of this rule requiring the indictment to state the guilty scienter. The transportation of the prohibited commodity may have been done ignorantly. The defendant ‍‌‌​‌​​‌​​​​‌​‌‌‌‌‌‌​‌​​​​‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌‌​‍may honestly have believed that he was without the prohibited jurisdiction.

For this defect, the judgment of the Circuit Court must be reversed and the ease remanded. In the meanwhile, the defendant will remain in custody until discharged by due course of law.

Case Details

Case Name: Davis v. State

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1880

Citation: 68 Ala. 58

Court Abbreviation: Ala.