Hardin v. StateHardin v. State
- Reporters:
- , ,
- Before:
- C. R. Bricken
We are of the opinion that the case was correctly decided in the court below, and its judgment will stand affirmed.
Affirmed.
On Rehearing.
Thе difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed by the legislature is obvious. We regard, as the legislature itself has regarded, the prohibition of the sale of fish, foreign or domestic, a subject of law and not a subject of a regulation to carry some previously enacted law into effect. There is no absolute, universal formula for determining in all cases the powers which must be exercised by the legislative body itself and those which may be delegated by the legislature to some administrative agency. It is, however, significant, we think, that the legislature itself prohibited the sale of bass taken without the State. This was not left by the legislature to rules or regulations promulgated by an administrative agency. The legislative prohibition was limited to bass and does not apply to bream and crappie. Acts 1935, page 1110,
In the statute cited, the legislature was dealing with fish. We are reluctant to believe that the legislature would have prohibited the sale of bass and not prohibit the sale of bream and crappie when the subject of fish was being dealt with, had the legislature intended for the sale of bream and crappie taken in waters without the State to be prohibited.
We have not overlooked Skrmetta v. Alabama Oyster Commission, 232 Ala. 371, 168 So. 168, emphasized by the Attorney General in brief on rehearing. We did not comment on that because the distinction between that case and the case at bar is obvious. In the Skrmetta case, the court was concerned with the act of a public corporation created by statute, in regulating the manner of taking public property, the State’s absolute property in and to the oysters and oyster beds being established, if not conceded, for private use.
In the case at bar the fish involved were Vaughan’s (appellee) property. The State of Alabama never acquired any property in them. The fish were lawfully acquired in Florida and lawfully brought into Alabama. They were legitimate articles of interstate commerce and private property. This case involved no attempt to regulate the method of taking the State’s property from the State’s holdings as was the case in Skrmetta case.
There being no absolute and universal formula for determining in all cases the power which must be exercised by the legislative body itself, eaсh case must be controlled by the application of the general principle to a given situation.
We are of the opinion that Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, when read understandingly in connection with the Skrmetta case, supra, forces us to the conclusion that the judgment appealed from should be affirmed, “to the end that it may be a government of laws and not of men.”
Opinion corrected, and extended. The application for rehearing is overruled.
Brickell & Johnston, of Huntsville, for appellant.
BRICKEN, Presiding Judge.
The judgment of conviction in the lower court was based upon an affidavit charging the defendant with the offense of violating the prohibition laws of this State. The warrant was made returnable to the circuit court, in which court the trial was had without the intervention of a jury.
The affidavit contained several alternate averments; but the trial was based upon the specific charge of having in possession certain intoxicating liquors; and there was no evidence adduced upon the trial to sustain either of the other averments in the affidavit, nor was any attempt made to do so.
The facts in this case, as stated by respective counsel, in briefs, were without dispute or conflict. It was disclosed, by the evidence adduced upon the trial, that on the day in question the defendant was arrested on the U. S. 241 Highway, by one Allison, the only witness for the State, and at the time of said arrest the defendant was on his truck in which there were three cases of whiskey, containing 72 pints and labelled “Distillers Pride.” The State’s witness testified that said whiskey had United States stamps upon all of it, but did not have, at the time, Alabama State Stamps thereon. As stated, the foregoing was without dispute, the defendant admitted having said whiskey in his possession, but in this connection testified he had regularly and legally bought said whiskey, about two hours and a half before his arrest, in the State of Tennessee and had only had the whiskey in his possession for that length of time. All this occurred in the County of Madison, which County we judicially know is a wet County and possession of legal whiskey is permissible.
Under the above agreed facts no law of this State had been violated, nor had any of the rules and regulations of the Alabama Beverage Control Board been transgressed. Sеction 49 of the Alabama Beverage Control Act, Gen.Acts 1936-37, Sp.Sess., p. 80,
Under the provisions of above quoted section the accused, as will be noted, had three days after receipt of the alcoholic liquor in question, to comply with the requirements provided for in said section. Said alcoholic beverage was in no sense illegal or contraband. The evidence showed it was legally purchased, hence legally possessed, at the time and place of the arrest of appellant. The prosecution of this appellant therefore was premature, and improvidently begun. These undisputed facts appearing on the trial of this case, entitled the defendant to his discharge, and by every possible means appellant, by his able counsel, urged the court to so hold. The adverse rulings of the court in this connection were erroneous in each instance and necessitates a reversal of the judgment of conviction from which this appeal was taken. It is so ordered. And as no conviction can be had in this case, as hereinabove stated, a judgment is here rendered in favor of the defendant discharging him from further custody in this proceeding.
Reversed and rendered.
On Rehearing.
BRICKEN, Presiding Judge.
Upon the original consideration of this case, this court was of the opinion, and so held, that under the undisputed facts, “the prosecution of this appellant therefore was premature, and improvidently begun,” and as authority we cited, and quoted in full, Section 49 of the Alabama Beverage Control Act,
Upon consideration of the case, on application for rehearing, the judges of this court were unable to reach an unanimous conclusion or decision, whereupon resort was had to the provisions of
The following certification was made to the Supreme Court, viz.:
“To the Supreme Court of Alabama:
“Under the provisions of Section 7311 of the Code of 1923, I hereby certify to you the sole question involved upon the appeal in the case of Larry Hardin v. State, from Madison Circuit Court, pending here on application for rehearing.
“The specific question involves the construction of Section 49 of the Alabama Beverage Control Act, as will be noted in the two opinions of the judges of this court. Said opinions are hereby transmitted to you as being the best manner of stating the disagreement of the judges of this court upon which this certification is rested.
“This December 30th, 1940.
“(Signed) C. R. Bricken,
“Presiding Judge.”
In response to said certification, the Supreme Court transmitted to this court the following opinion.
“BROWN, Justice.
“Hardin purchased three cases, seventy-two pints of аlcoholic liquors in Tennessee, on which the federal taxes had been paid, containing the proper internal revenue stamps, and transported said liquor in a truck into Madison County, this State, where he was arrested for ‘violating the prohibition law.’ The liquors did not have the state stamps thereon, nor did the defendant have a license or permit issued by the Board, to deal in liquors or transport or import the same. He had had it in his possession three hours.
“Complaint was made under oath before the clerk of the Circuit Court by the arresting officer charging that ‘Larry Hardin did sell or have in possession illegally, give, barter, exchange, receive, deliver, carry or ship, prohibited liquors, contrary to law.’
“On this complaint a warrant, issued by the clerk commanding Hardin‘s arrest for ‘violating the prohibition law’ returnable unto the Circuit Court, where he was subsequently tried, by the court without the intervention of a jury, resulting in his conviction and fine of one hundred dollars, and failing to pay the fine, was sentenced to hard labor for thirty days for the pay-
“The judgment of the court recites: ‘Defendant, being duly arraigned in court upon an affidavit on a charge of violating the prohibition law, for his plea thereto says he is not guilty; issue joined on said plea. Defendant having withdrawn his demand for a jury in this case, it is submitted to the court upon the evidence. The court, after hearing and considering the evidence, finds the defendant guilty and fixes his fine at One Hundred Dollars.’ (Italics supplied.)
“From the judgment of conviction Hardin appealed to the Court of Appeals, and on the original consideration, the court treating the conviction as for a violation of the prohibition law, in a unanimous opinion reversed the judgment and discharged the defendant, stating as a reason therefor that under the provisions of Section 49 of the Alabama Beverage Control Act, Gen.Acts 1936-37, Sp.Sess., p. 80,
“The question certified by the Presiding Judge of the Court of Appeals, as ‘the sole question involved:’ ‘The specific question involves the construction of Section 49 of the Alabama Beverage Control Act, as will be noted in the two opinions of the judges of this court. Said opinions are hereby transmitted to you as being the best manner of stating the disagreement of the judges of this court upon which this certification is rested.’ (Italics supplied.)
“Courts take judicial notice of the Governor‘s proclamation declaring the result of the election under the Alcoholic Beverage Control Act and that Madison County, is a “wet” county, within the meaning оf said Act; that said Act, and such rules as the Alcoholic Beverage Control Board, may promulgate within the authority of that Act, regulate the sales, having in possession, receiving, delivering and carrying of alcoholic liquors and beverages in said county.
“This is so by the terms of Section 51 of the Act which provides, inter alia: ‘When the returns from said election are tabulated, the Governor shall issue a proclamation declaring the result of the election in each of the counties of the State. In every County where a majority of the eleсtors voting in said election vote “Yes“, this Act, and all of its provisions, shall be immediately put into operation in such County, but in every County where a majority of the electors voting in said election vote “No“, this Act shall not go into effect in such County, and all laws prohibiting the manufacture and sale of alcoholic liquors or beverages now in force and effect in Alabama shall remain in full force and effect in every such County.’
“It is therefore clear, that of whatever offense Hardin may be guilty under the facts, he is not guilty of ‘violating the prohibition law’ according to the generally accepted meaning of that phrase. Slater v. State, 230 Ala. 320, 162 So. 130 [132].
“Section 49 of the Alcoholic Beverage Control Act, as to the meaning of which the Judges of the Court of Appeals differ, provides: ‘Any person, firm, corporation, club or association of persons, who purchases, and/or receives, and/or who brings into the State in any manner whatsoever, any of the articles of alcoholic beverages enumerated herein, which does not have affixed revenue stamps, crowns оr lids, or stamps or identification as described in this Act, shall within three (3) days of the receipt of such articles of alcoholic beverages, report the receipt or purchase of said alcoholic beverages to the board, giv-
“Section 2 of the Alcoholic Beverage Control Act,
“Section 6 of the Act,
“* * *
“‘(b) To control the possession, sale, transportation and delivery of alcoholic beverages as enumerated and defined herein. * * *
“‘(i) To control the manufacture, possession, sale, consumption, importation, use and delivery of liquor, alcohol and malt and brewed beverages, in accordance with the provisions of this Act; * * * The Board shall require each Alabama manufacturer and each non-resident manufacturer of distilled liquors selling distilled liquors to the Board to make application for and be granted a permit by the Board before distilled liquors shall be purchased from such manufacturer. The Board before issuing such permit shall collect from each applicant permit fee of fifteen dollars ($15.00), which sum shall be paid annually thereafter on application. In the event that any such manufacturer shall, in the opinion of the Board, sell distilled liquors to the Board through another person for the purpose of evading this provision relating to permits, the Board shall require such person before purchasing distilled liquors from him, or it, to take out a permit and pay the same fee as hereinabove required to be paid by such manufacturer. All permit fees so collected shall be paid into the State Stores Fund.
“‘(j) To grant, issue and suspend or revoke for cause liquor licenses, and alcohol permits, as provided in this Act.’ (Italics supplied.)
“Section 7(a),
“Section 19, subsection (3),
“Section 25, subsection (3),
“Section 31,
“Section 36,
“‘The Board may promulgate rules and regulations governing the affixing of stamps, crowns or lids on any articles or commodities enumerated herein handled by persons, firms, or corporations operating on interstate common carriers.
“‘Any rules or regulations of the Board when duly made and promulgated, shall have the full force and effect of law. Any person violating such rule when duly made
“Section 37,
“Section 51,
“This provision is applicable to all counties of the State. Holt v. State, 238 Ala. 2, 193 So. 89.
“Interpreting the provisions of Section 49 of the Act, in the light of these other provisions noted above, it is our conclusion that said section refers to licensees of the Board, and gives such licensees three days from the receipt of goods which they are authorized by license to possess, transport or sell, to report the same for taxation, and penalize such licensees for the failure to so report.
“Said section is not applicable to persons not licensees who bring into the State untaxed liquors or beverages. Under the facts the defendant if guilty at all is guilty of violating the provisions of the last clause of Section 51 quoted above, which makes it a misdemeanor to import into the State, without authority of the Board, untaxed liquors and beverages.
“The italicized provision ‘shall be punished as now provided by law,’ evinces a legislative intent by reference to adopt the provisions of Section 4704 of the Code 1923 [
“Let this opinion be certified to the Court of Appeals.
“All the Justices concur in the opinion; KNIGHT, Justice, however, does not wish to be understood as holding that the Alcoholic Beverage Control Act was constitutionally enacted.”
As will be noted in the foregoing “response,” the Supreme Court stated, that Section 49 of the Alabama Beverage Control Act aрplies only to licensees of the Board, and gives such licensees three days from receipt of goods * * to report the same for taxation, thereby holding that the words in said Section 49, viz., “Any person, firm, corporation, club or association of persons,” etc. apply only to licensees, and not to any such of said persons, etc., supra, who are not licensees. The wording of said section does not so state; but, the Supreme Court having thus held, this court perforce, under provisions of
It will also be noted, after a consideration of the certified question and the statement of a full premise in the opinion of the Supreme Court, supra, it was stated: “It is therefore clear, that of whatever offense Hardin [this appellant] may be guilty under the facts, he is not guilty of ‘violating the prohibition law’ according to the generally accepted meaning of that phrase. Slater v. State, 230 Ala. 320, 162 So. 130, 132.” Said opinion further holds: “Under the facts the defendant if guilty at all is guilty of violating the provisions of the last clause of § 51 quoted above, which makes it a misdemeanor to import into the State, without authority of the Board, untaxed liquors and beverages.”
From the foregoing; which, as stated, we must follow, the judgment of conviction from which this appeal was taken is of no force and effect, and cannot avail, as the prosecution, upon which said judgment is rested, is for the violation of another and different statute, and is not based upon a
Opinion corrected and extended.
Application overruled.
After Remandment.
BRICKEN, Presiding Judge.
The order of this court heretofore rendered reversing the judgment of conviction from which this appeal was taken, and rendering judgment discharging defendant from further custody in this proceeding, must be, and is, hereby modified, and an order now made and entered reversing the said judgment of conviction and remanding the case to the court below for further proceedings as directed by the Supreme Court on certiorаri.
The history of this case, from the initial prosecution to the present time, has been unusual. Several opinions by the two appellate courts have been herein rendered. The original prosecution of the defendant in this case was as for the violation of the prohibition laws of the State which were in force and effect, before and at the time of the adoption of the Alabama Beverage Control Act,
Much confusion exists we are officially informed, and personally know, relative to how prosecutions should be begun, for the violation of the prohibition laws, or laws to promote temperance in this State. The simplest solution of this much debated question is—where the offense is alleged to have been committed in any of the 24 “wet cоunties” of the State, the prosecution should be instituted and based as for a violation of the Alabama Beverage Control Act; and, contra; where the offense is alleged to have been committed in the “dry counties” of the State, the prosecution should be begun under the provisions of the prohibition laws of the State as they existed before the Alabama Beverage Control Act was enacted. All this, of course, to be governed and controlled in addition to the respective acts, by such constructions as may have been or may be hereafter placed thereon by the appellate courts of this State.
Reversed and remanded.