51 So. 246 | Ala. | 1909
Lead Opinion
The proceeding against the appellant was had under an ordinance of the city of Bessemer which will appear in the reporter’s statement of the case. It is at this day universally held that the prohibition by the state of the manufacture and sale of intoxicating liquors and beverages within its territory is a, constitutional exercise of the police power. The multiplication in recent years of statutes and court decisions relating to the subject indicates a general and growing determination to make prohibition effective according to the popular intent. Mr. Black, a much-quoted authority on the subject states the theory and policy of such laws in the following language “The evil to be avoided is the communication from one to another of an article which may be injurious to the recipient, or which, by its general use, may demoralize or harm the whole community. It is not attempted to restrain
Counsel for appellant announce their inability to- see any justice or common sense in a rule which would differentiate intoxicating liquors and beverages from burglars’ tools, lottery tickets, infected clothing, or diseased animals. They argue that liquors are put by the statute outside the pale of law. Much the same argument was made in Preston v. Drew, 83 Me. 558, 54 Am. Dec. 639. In response, Shepley, C. J., said: “It is, however, insisted on argument that a person, by the common law, can no more acquire property in spirituous and intoxicating liquors than he can in obscene publications and prints. There is a clear and marked distinction between them. Such liquors may be applied to useful purposes. This is admitted in the act by its authorizing their sale for medical purposes. It is their abuse or misuse atone Avhich occasions the mischief. Obscene publications and prints are in their very nature corrupting and productive only of evil. They are incapable of any use which is not corrupting and injurious to the moral sense.” In Lincoln v. Smith, 27 Vt. 328, the court says: “The act does not declare that they (liquors) are not property, and there is no language which should receive a construction to forbid their being property. Though there is a command not to sell them, yet that cannot prevent a man from having a property in them for his own use, without any intention to sell them.” In the case of West Virginia v. Gilman, 33 W. Va. 140,
In the case of State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299, the court had under consideration a local prohibition statute for the county of
Municipal corporations in this state have power to adopt ordinances, not inconsistent with the laws of the state, to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort and convenience of the inhabitants. — Code 1907, § 1251. It must be conceded that they may pass ordinances in accord with the general prohibition law of the state, ordinances to- prevent evasions thereof by trick, artifice, or subterfuge, and ordinances making it an offense to keep intoxicating liquors and beverages in any place, public or private, with intent to sell or dispose of them in violation of law; all such being in consonance with the law and policy of the state, and fairly implied in the broad grant of powers enumerated. The ordinance in question does not make an offense against the municipality of those acts which are denounced by the law of the state; that is to say, it does, not prohibit the sale of intoxicating liquors, nor does it create the separate and distinct offense of having or keeping liquors and intoxicating beverages with the unlawful intent. It can be justified only, if at all, on the ground that it sustains some reasonable relation to the prohibition law in the way of preventing evasions of that law by trick, artifice, or subterfuge under guise of which that law is violated. But it has no such relation. It undertakes to prohibit the keeping in any quantity and for any purpose, however innocent, of intoxicating liquors and beverages in places which are innocent in themselves. Under the ordinance a keeping with innocent purpose is as much an offense as a keeping with
The ordinance under which the appellant was convicted is void, and the appellant must be discharged.
Reversed and rendered.
Dissenting Opinion
(dissenting). — This appeal invites the judgment of this court upon the inquiry whether the ordinance of the City of Bessemer, approved February 18, 1909, is a valid exercise of the police power. A majority of the court pronounce against its validity. It is indispensable to the determination of the validity of statute or ordinance that construction thereof be first taken. What does the assailed enactment mean? What does it prescribe or provide? What is its effect? — are first questions in the delicate and highly important judicial duty of deciding the validity vel non of legislative expression.
To neither of these conclusions can the writer give his approval. In my opinion both are unsound, and to sanction them is to impair and limit, without sufficient reason, the police power of the state itself, including, of course that of the municipalities created and empowered by the state. There can be no doubting the general right and power of a municipality in this state to ordain, under the power “to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience” of the inhabitants (Code 1907, § 1251), to the end that the prohibitory liquor laws of force in this state may be rendered more effective in such municipality. Accordingly, the question on the testing of this ordinance is whether the stated general
What does this ordinance prohibit? To me the response to this question is apparent from the face of the ordinance. A reading of it, obviating any necessity for argument or elucidation, demonstrates, in my opinion, that the Avhole purpose and effect thereof was and is to inhibit the storage, deposit, or having of the defined liquors “in or at any place Avhere any drinks or beverages are sold or kept for sale.” The title of the ordinance, to which reference may be had for purposes of interpretation, reinforces and emphasizes the correctness of this construction. Hoav it can be draAvn from this ordinance that an attempt is thereby made to penalize the possession, storage, or deposit of the condemned liquors at other than places whereat or Avherein drinks or beverages are sold or kept for sale I am entirely unable to see. How it can be said under this ordinance that a man is prohibited from having the defined liquors in his home is
Taking authority first: An exhaustive investigation of text-books and reported decisions of other jurisdictions has been reAvarded by a decision of the Supreme Court of New Hampshire, viz., State v. Clark, 28 N. H. 176. It is in immediate point, and Avas decided in 1854. So the proposition is not new. This case is also reported in 61 Am. Dec. 611, though the facts and briefs of counsel are not there as fully set out as in the original report of the case. The New Hampshire court has, in the Clark Case, to determine the validity vel non of the folloAving ordinance|: “No intoxicating liquors shall be used or kept in any refreshment saloon or restaurant Avithin the city, for any purpose whatever.” The argument against the validity of the ordinance was that set forth in the majority opinion in this case. It did
What - of the authorities affording the basis of the majority conclusion? In the first place, there is no sort of doubt that intoxicating liquors, even though being devoted to violations of penal statutes of the state, are property. Such was the ruling of this court in Smith v. Dinkelspeil, 91 Ala. 528, 8 South. 490, where the liquor owner was allowed to recover for trespass by a sheriff levying process. The court declared plaintiff’s property in the liquors, and his right to damages, to a limited extent, notwithstanding they were being used as a vehicle for the violation of the statues against retailing without a license. The other decisions of this court cited in the majority are in accord, on the property right, with Smith v. Dinkelspiel, supra. While the existence of such a right is settled, it has been, of course, long adjudged to finality, and never now doubted anywhere, that such right, of property is subject to proper qualification by the exercise by the state of its police
If the writer is correct in the construction taken of the ordinance, it clearly appears that the decisions cited in the majority opinion are not authorities against the validity of this ordinance. They may be for another inquiry, but not the one presented by the Bessemer ordinance. West Virginia v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, deals with a statute wherein it was made, among other things, an offense to “keep in his possession for another” spirituous liquors, etc. The court condemned the statute as invasive of property rights. Whether the holding is sound or not, it bears no relation, in principle or analogy, to the Bessemer ordinance, where the prohibition ivas the storing, deposit, or possession of defined liquors in or at places of a certain specified class. In the Gilman Case the prohibition was against the possession of liquors generally, and under it every possession of liquors generally, everywhere, in the state, was a violation of the statute. The cases are obviously different. In State v. Williams,
It is, of course, true that statutes and ordinances of the character now under consideration must bear a reasonable relation to the major object they were intended to conserve. They must reasonably tend to effect the prohibition, without unreasonably' impairing property rights. But in deciding w’hether a given statute or ordinance had gone beyond reasonableness, as that is colored in decision by the relation of the mode adopted to the prohibition sought to be rendered more effective, less liable to evasion or artifice, the courts must of necessity be cautious that they do not substitute mere preference of judgment on a matter of legislative policy for the limited and sole right of review' and revision. The wisdom of an enactment is not a proper subject of judicial consideration, nor is there reposed in the judiciary any power to revise the action of the legislative branch, except in respect of validity vel non thereof, and this upon grounds too well under
The circumstances indicated by this ordinance demonstrate, as I vieAV it, not only the reasonableness of the mode therein provided, but also that the council of Bessemer very naturally and reasonably anticipa,ted, in so ordaining, an artful and hard to detect method of evasion of the major law. The place of sale of ostensibly innocent beverages could, it was thought, readily afford a cloak for an illicit traffic in prohibited liquors. The vendor, “in or at” his place, was conceived • to be favorably situated
It has been said, in respect to this ordinance, that it prohibits any one, in addition to the keeper of the described place, from having therein any quantity of the liquors forbidden by the ordinance. If that is a proper
It is no argument against the validity of this phase of the ordinance that a well-intentioned individual, entering such a place as the ordinance defines, Avith spirituous, etc., liquors on his person at the time, would
But, if it be granted (for the argument) that the provision of the ordinance expressed in the phase “or have therein” is invalid, then there can be no sort of doubt
This state has adopted the policy of prohibiting the traffic in intoxicants. That power it rightfully has. Having that power, it has also and necessarily the ancillary power to give effect to the major object and policy of the state in this field of exercise of the police power. I cannot agree to curtail the ancillary power to the major end, and thereby largely paralyze the arm of
I recognize the force of the argument of our Brother Sayre, J.; but after a careful consideration of the question I am not able to concur. While it is true that spirituous liquors constitute property, yet it does not necessarily follow that the Legislature may not make regulations prescribing when and how they may be kept.
Without adverting to. the fact that all courts recognize the principal that spirituous liquors belong to a class of property, as to which many regulations and prohibitions may be made, which would not be allowable as to other property, yet as to property generally the Legislature has the right to make police regulations which are reasonable and suggested by the nature of the property and the evils intended to be remedied, and the courts will not declare such legislation invalid unless it is an unreasonable exercise of legislative discretion.
As a general proposition a proprietor has a right to employ a female, and the female has a right to earn her livelihood, yet it is held that an act prohibiting proprietors of places where malt, etc., liquors are sold, to employ a female to serve customers, is valid, and it matters not how orderly and proper the place is, or how virtuous the female may be. — Bergman v. Cleveland, 35
The same court, in sustaining a la tv prohibiting selling or buying “options” on commodities to be delivered in the future, says “Is it true that the Legislature is without poAver to forbid or suppress a particular kind of business, where such business, properly and honestly conducted, may not in itself be immoral? We think not. * * * If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the funda
Our constitution guarantees to every one the right to bear arms in defense of person or property, yet statutes prohibiting the carrying of a pistol concealed about the person have long been recognized as constitutional, though many persons might carry it, in that way, reaily for their own protection, and without any purpose or probability of violating the law otherwise. Cotton in the seed is certainly valuable property, and it follows that the right of ownership carried with it the right to sell it and to transport it, at the owner’s pleasure; yet this court has sustained as constitutional an act to prohibit the selling of cotton in the seed, and also prohibiting the transportation of the same after sunset and before sunrise.- — Acts 1878-79, p. 206; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; Mangan v. State, 76 Ala. 60.
The theory of all these acts is that, though the matters referred to are legitimate in and of themselves, yet experience has shown that, under the circumstances provided, the acts prohibited have been found to tend to a violation of the law. The act now under consideration is to prevent the evasion of the prohibition law, and I think it is a reasonable exercise of the police power of the state. It is a part of the history of all governments that the citizen must surrender some of his natural rights for the good of others.