66 So. 115 | Ala. | 1914
The Carmichael bill (Acts Sp. Sess. 1909, pp.8-13) and the Fuller bill (Acts Sp. Sess. 1909, pp. 63-96) are expressive of the law of this state on the subject of intoxicating liquors and beverages, except in so- far as their provisions have been expressly or impliedly repealed by the Parks bill (Gen-Acts 1911, pp. 26-31) and the Smith bill (Gen. Acts 1911, pp. 249-288).—Southern Express Co. v. I. Brickman Co., 187 Ala. 637, 65 South. 954; State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 South. 294; Western Railway v. Capital Brewing Co., 177 Ala. 149, 59 South. 52; Hauser v. State, 6 Ala. App. 31, 60 South. 549.
The Fuller bill prohibits intrastate shipments of intoxicating liquors and beverages, except when such shipments are made for certain recognized legal purposes, and the provisions of the Fuller bill are now operative as to such shipments in all parts of the state except those embraced within the territory in “wet towns or cities.”—Southern Express Co. v. I. Brickman Co., supra. The Fuller bill does not, however, prohibit or attempt to prohibit, the transportation of intoxicating liquors or beverages from some other state or territory into the state of Alabama.-Section. 24, Fuller bill, pp. 86, 87,
The Legislature, in adopting the Fuller bill, recognized that when an article is delivered to a common carrier in one state, for transportation to' and delivery in another state, such article is — so far as the question now under consideration is concerned — from its receipt by the common carrier until its orderly delivery to the consignee, within the sole jurisdiction of the federal government, and that it does not come within the jurisdiction of the state to which it is shipped until, in due course of business, it is delivered to the consignee.
(2) Since the adoption of the Fuller bill the Congress of the United States has adopted what is familiarly known as the “Webb Law.” — Act March 1, 1913, c. 90, 37 Stat. 699. This bill was passed, over the veto of the President, in March, 1913, and is in the following language : “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the shipment or transportation in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented or other intoxicating liquor of any kind, including beer, ale, or wine, from one state, territory, or district of the United States or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into- any state', territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, directly or indirectly or in any manner connected with the transaction, to be received, possessed, or kept, or in
The above act, by its terms, does not prohibit the transportation of intoxicating liquor from one state into another state except upon the contingency that the liquor is to be received, possessed or sold or in some way used in a manner prohibited by the laws of the state into which such liquor is to be, or is in fact, imported. The above act, by its terms, divests intoxicating liquor of its “interstate character,” and withdraws from it “interstate protection” at the hands of the federal government only Avhen it is shipped from one state into another state for purposes which, under a valid statute of the state into which it is shipped, are illegal in the state into which it is "shipped. In other words, under the terms of the above quoted act, intoxicating liquor, as an article of interstate commerce, is not an outlaw. It is however, as such an article, under certain conditions, an outlaw.
(3) Prior to the passage of the act of Congress approved August 8, 1890, c. 728, 26 Stat. 313 (U. S. Comp. St. 1901, p. 3177), entitled “An act to limit the effect
The above doctrine grew out of the fact that the states, in adopting the Constitution of the United States, vested in Congress the exclusive power “to' regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” except, indeed, such power as relates to subjects which “do not require the .application of a general or uniform system.”—Leisy v. Hardin, supra.
“Where the subject-matter requires a uniform system .as between the states, the power controlling it is vested •exclusively in Congress; but where, in relation to the ■subject-matter, different rules may be suitable for different localities, the states may exercise powers which, though they may be said to partake of the nature of the power granted to the general government, are strictly not such, but are simply local powers which have full •operation unless or until circumscribed by the action of ■Congress in effectuation of the general power.”
In other words, from the adoption of the federal Con-stitution it has ever been held that the power of Congress “to regulate commerce among the states, when the ■subjects of that power are national in their nature, is exclusive.” It has also been held that “the failure of ■Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free :from restrictions or impositions upon it by the several
When, therefore, the Legislature of this state, through the Carmichael bill and the Fuller bill, made it unlawful to sell or give away intoxicating liquors or to transport them except for certain purposes, from any point in the state to any other point in the state, it in no- way, in recognition of the above federal power, attempted to prohibit the shipment of intoxicating liquor from another state into this state.
The stringent prohibition laws which became operative in all parts of this state -upon the adoption of the Carmichael and Puller bills to which we have above referred are general laws now operative, as we have already said, in all parts of the state, except where an exception has been ingrafted upon them through the operation of the Parks and Smith bills, to which reference has also- been made. In a few of our towns and cities — not counties — intoxicating liquor may now, within the territory embraced within the corporate limits of such toAvns and cities, under restrictions Avhick at no previous time have prevailed in the state, be sold. The manner in which, under the provisions of the Parks, and Smith bills, the wet cities and towns have been able,, through the votes of the people of the counties in which such toAvns and cities are situated, to except themselves from the general prohibition laws of the state gives emphasis to the public policy of the state to discourage the-use and consumption of intoxicating liquors within the state. In furtherance of that policy, it is, except in wet cities and towns, not only unlawful to- manufacture,, keep for sale, or have in possession for disposition in any way, or sell, give away, or otherwise dispose of, prohibited liquors, but it is also provided that: “The keep
The only protection, in short, which is accorded to intoxicating liquor in the dry territory of the state, except to that which is had for personal use, for the use of druggists, etc., and for communion purposes, is the protection which is accorded to it by the federal laws governing the subject of interstate commerce.
(4) The Webb bill, which we have above quoted, outlaws intoxicating liquors which are shipped into- this state from another state, and which are shipped into this state for illegal purposes. Intoxicating liquors which are shipped into this state from another state for illegal purposes are therefore, in so far as this state is concerned, not the subjects of interstate commerce. They are outlaws, and are to be dealt with by the courts as such. Such liquors are not now recognized as legit-mate subjects of transportation, and a common carrier-caught in the possession of such liquors, liquors which, under the express terms of the Webb bill, it is prohibited from bringing into this state, cannot escape the operation of the laws of this state by showing its own violation of a federal statute, passed confessedly for the purpose of aiding this state in its policy, through prohibitory laws, of encouraging temperance among all of its people.
The prohibition laws of this state, as they now exist, are sufficiently broad to cover all liquors which no person can lawfully have in his possession, and they became immediately operative upon all liquors shipped for illegal purposes into this state from other states, upon the passage of the Webb bill.
While section 24 of the Fuller bill deals only with the intrastate shipments, and renders unlawful all shipments of intoxicating liquors, except shipments to druggists, physicians, etc., and while section 36 of the Fuller bill declares that our prohibitory laws shall be so construed as to avoid conflict with “that clause of the Constitution of the United States which confers upon the Congress of the United States the power to regulate commerce with foreign nations and among the several states and with the Indian tribes,” a proper construction of the Fuller bill must lead to the conclusion that it was the purpose of the Legislature in that bill to declare that it should be unlawful for any person to have in his possession, or to deliver to any other person at any point in the state, liquors not within interstate protection and which were intended for unlawful use. The construction which is thus placed by us upon the Fuller bill is that construction which is in accord with the well-recognized public policy of the state, and which is enjoined, in section 37 of the Fuller bill, upon all courts in the following language: “This act shall be liberally construed so as to accomplish the purpose thereof, which is to further suppress the evils of intemperance and se
For the reasons above stated we are of the opinion that interstate commerce cannot, since the passage by Congress of the Webb law, be used as a subterfuge by common carriers or other corporations, firms, or persons for having in their possession or for delivering to any other person liquors intended to be used, not for lawful, but for unlawful, purposes in the state.
“That which does not belong to commerce is within the jurisdiction of the- police power of the state, and that which does belong to commerce is within the jurisdiction of the United States.”—Peirce v. New Hampshire, 5 How. 504, 12 L. Ed. 256; In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572.
Intoxicating liquors and beverages intended for unlawful use in Alabama are, in so far as the state of Alabama is concerned, since the passage of the Webb bill, not articles of commerce, and cannot claim protection as. such.
(5) That the laws of this state which have been pass-, ed for the purpose of promoting temperance are violative of no provision of the state or federal Constitution is a proposition about which there is no room for doubt.—Mugler v. Kansas, v23 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. Congress in adopting various prohibitory laws with reference to sales, etc., of intoxicating liquors to the Indians, has clearly indicated that, in the opinion of the federal government, such laws subserve a not unwise public policy when applied to certain localities and peoples under the peculiar protection of the feder
One of the chief stumbling blocks in the way of the enforcement of local option and prohibitory laws in our various states has been the fact that, while the states could prohibit intrastate commerce in prohibited intoxicating liquors, they were without protection against interstate shipments until the liquors so shipped had found their way into the general mass of property of the state. Experience in prohibition and local option states indicated that, so long as the consignee was under the interstate commerce law, permitted to sell intoxicating liquors in original packages, such liquors found their way, upon the sale by the consignee in the original packages, into channels which were subversive of the public policy of the state which dictated its prohibitory and local option laws. The result was that Congress passed the act of August 8, 1890, to which we have above referred, and which was upheld as constitutional in Ex parte Rahrer, supra.
Experience has demonstrated that local conditions in some of our states present problems which in other states do not exist, and that laws which are necessary in some states are needless in others. It is therefore appropriate that, under the broad powers which have been expressly lodged in Congress as the sole custodian of interstate commerce, such regulations of that commerce shall be had at the hands of that body as will assist the various states in enforcing valid statutes enacted by them in furtherance of a public policy which is dictated by their several peculiar needs.
“The power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of
The power of a state to prohibit the transportation of intoxicating liquor from a wet part of a state into- a dry-part of a state, and to be there used in violation of law, is, as we have already said, unquestioned. In this state a large number of our counties are dry counties, and the Legislature of the state, out of respect to the wishes, the needs, and the efforts of a majority of the people in those counties to promote and encourage soberness and temperance, has validly declared that intoxicating liquor shall, except to druggists, etc., not be shipped from any point in the state into those counties. Why, then, if the United States government possesses, in fact, exclusive control over interstate commerce, that government, to meet the needs and efforts of the states to discourage the use of intoxicating liquors, does not possess the power to outlaw from the protection of federal commerce liquors intended for use in such states in contravention of their laws we are unable to see. The power to which we refer must be lodged somewhere. It is not in the states, because they expressly surrendered their power in the premises when they adopted the Constitution. The powers which the states surrendered when the Constitution Avas adopted were lodged by them in the federal government, and were by the states expressly “vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The powers vested in Congress, a legislative body, were vested in it in order that the Congress, on the subjects placed within its jurisdiction, might so legislate on such subjects as to promote the general welfare. Congress is not authorized by the Constitution to delegate leg
—In re Rahrer, supra; State v. McCarty, 5 Ala. App. 212, 59 South. 543.
In construing the commerce clause of the federal Constitution, the courts have uniformly held that, in the absence of congressional legislation on the subject, the clause in no way conflicts with the police power of a state to prevent the introduction of noxious articles, for the “protection of life, liberty, health or property 'within its borders,” and to that end may “prevent persons and animals suffering under contagious or infectious diseases from entering the state,” etc.—Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23.
Without regard to the reasoning upon which the declaration by the courts, made during the period of inactivity on the part of Congress on the subject now under consideration, that “where, in relation to the subject-matter, different rules may be suitable for different localities, the states may exercise powers which, though they may be said to partake of the nature of the power 'granted to the general government, are strictly not such, but are simply local powers which have full operation unless or until circumscribed by the action of Congress in effectuation of the general power” have been, placed by the courts, the real true reasoning underlying the principle is the necessity of conceding to the states such power. Without such power the states, in the ab
“Where the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, * * * is repugnant to such freedom.”-Robbins v. Shelby Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694.
It was under the above rules of construction that in Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, Justices Harlan, Gray, and Brown were of the opinion that, through the effect of the Wilson bill, which was construed by the court in the case of In re Rahrer, supra, intoxicating liquor was brought within the complete operation of the valid police jurisdiction of a state immediately upon its arrival in such state and before its delivery in the original package to the consignee. While, in that case, a majority of the court were of a different opinion, the opinion of the majority was based upon the language of the act under review, and not upon constitutional grounds. In other words, in that case the majority of the court determined that Congress had not exercised, and not that it did not possess, a particular power.
“All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct, to establish their individuality.”—Gibbons v. Ogden, supra.
In so far as the instant case is concerned, the Webb law, in aid of the public policy of our state, has cut from interstate commerce, in so far as this state is concerned, an article intended for use in the state in violation of a statute which this state, under both the federal and state Constitutions, had the power to enact.- In other words, Congress, in whom the people have expressly vested the exclusive power to legislate upon the particular subject, has, “in that spirit of harmony and conciliation which ought always to characterize the com duct of governments standing in the relation which that of the Union and those of the states bear to each other,” “in some measure, adapted its own legislation to this object, by making provisions in aid of those of the states.”—Gibbons v. Ogden, supra.
“Although Congress cannot enable a state to legislate Congress may adopt the provisions of a state on any subject.”—Gibbons v. Ogden, supra.
And in adopting the Webb law Congress has simply come to the rescue of prohibition and local- option states
“The 'power to regulate commerce’ here meant to be granted was that power to regulate commerce which previously existed in the states. But what was that power? The states were unquestionably supreme; and each possessed that power over commerce which is acknowledged to reside in every sovereign state. * * * The law of nations, regarding man as a social animal, pronounces all commerce legitimate in a state of peace until prohibited by positive statute. The power of a sovereign state over commerce, therefore, amounts to nothing more than a power to limit and restrain it at pleasure.”—Gibbons v. Ogden, supra.
While the federal government, under the Constitution as originally adopted and the various amendments which have been added to it since its adoption, has not an unbridled power over interstate commerce, the above excerpt from Gibbons v. Ogden is authority for the statement that Congress under the federal Constitution possesses all the power over interstate commerce which this state under the federal and state Constitutions possesses over its intrastate commerce. When, in Gibbons v. Ogden, the Supreme Court of the United States, in
While intoxicating liquor is property and an object of constant commerce, it is, as we have already said, an article which is made the subject of some kind of police regulation in every state of the Union. These police regulations are not, it is true, uniform in the various states, but all the states have them. There is therefore a field for the operation of the Webb law in every state of the Union; and, if the federal Constitution, under which this government was established, and which, to use the language of the Supreme Court of the United States in the Legal Tender Cases, 110 U. S. 421, 14 Sup. Ct. 122, 28 L. Ed. 204, was “intended to endure for ages and to be adapted to the various crises of human affairs, and is not- to be interpreted with the strictness of a private contract,” then it would seem that, in adopting the Webb bill Congress was exercising, not an implied, but an express, power conferred upon it by the Constitution.
“If any one proposition could command the universal assent of mankind, we might expect it would be this: That the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it
• While there has always been a difference of opinion as to whether the federal Constitution should receive a liberal or a strict construction, this difference of opinion has been more distinctly pronounced with reference to the implied, rather than with reference to the express, grants of power by the Constitution. Where the power is expressly granted, there has been but little room for debate, and it must be remembered that the inability of the confederated states to regulate commerce with foreign nations with the states, and with the Indian tribes, was one of the principal defects in the Articles of Confederation, which finally led to the adoption of the federal Constitution. — Tucker on the Constitution, p. 520, § 251. In other words, before the adoption of the Constitution the common 'welfare of the states demanded that there should exist, subject to the limitations imposed by the Constitution, in one body, that exclusive, autocratic power over foreign and interstate commerce which naturally and inherently belongs to all independ
Giving to the clause under consideration, not that narrow construction which would render Congress unable to meet the reasonable demands of the police regulations of the states with reference to a subject which every .one recognizes should receive constant and watchful regulation, but giving to it that construction which “the words of the grant, as usually understood, import, and which is consistent with the general views and objects of the instrument,” it seems to us that, in enacting the Webb law, Congress exercised a constitutional
“Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies which may arise in the progress of events connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to perpetual modification and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those who administer the government a ve'ry large mass of discretionary powers, capable of greater or less actual expansion, according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution can provide perfect guards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against the abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change belonging to them in cases requiring extraordinary remedies.”—1 Story, Const. p. 324, § 425.
Indeed, if Congress possesses the power to authorize a state, in the exercise of its police power, to' confiscate immediately upon its delivery to the consignee, intox
(6) We have already called attention to our statute which requires that our prohibitory laws shall be so construed as to avoid conflict with the interstate commerce clause of the federal Constitution. We have also called attention to that provision of our laws which declares that: “The keeping of liquors or beverages that are prohibited by the laws of the state to be manufactured, sold; etc., in any building not used exclusively for a dwelling shall be, prima facie evidence that they are
As common carriers engaged in interstate commerce are not prohibited by the federal laws from bringing into this state all intoxicating liquors, but only such as are intended for unlawful use in this state, the above-quoted provision of the Fuller bill is not applicable to common carriers engaged in interstate commerce. Plainly this provision of the Fuller bill was not, when it was passed, intended to apply to common carriers engaged in interstate commerce, and there is nothing in the Webb bill bringing such carriers within the operation of said quoted section of the Fuller bill. In so far as this state is concerned, its laws have no effect upon liquors brought into this state from another state unless, in contravention of the act of Congress, the carrier has them in its possession for the purpose of delivery or undertakes to deliver them for illegal use in the state. The laws of this state have no1 extraterritorial force, and the Webb bill was not intended to give to our laws any such force. The state of Alabama has nothing to do with sales that may be made in another state. It is, hoAvever, interested in the question as to whether a carrier of interstate commerce shall deliver to a consignee in this state an article which such consignee intends to use in this state in violation of a valid state law. The true, legal effect of the Webb bill, construed in connection Avith our prohibitory statutes, is to prohibit a carrier engaged in interstate commerce from delivering or having in its possession, for the purposes of delivery to a consignee, liquor which has come into its hands, and Avhich such consignee intends to use in violation of our laws. If liquor intended for unlaAvful use in Alabama is delivered by the carrier to the person so intending to use it, the act of delivery at once becomes an efficient aid to the crim
“The commerce clause of the federal Constitution does not now afford to the carrier the complete protection it formerly did. The carrier must now, if it wishes to avoid being prosecuted, take notice of the use to which it is intended to put the liquor, and, if the use will vtolate the law of the state at the place of delivery, the carrier may refuse to receive the shipment or, having received it, may refuse to deliver it.”—Adams Express Co. v. Commonwealth of Kentucky, 154 Ky. 462, 157 S. W. 908, 48 L. R. A. (N. S.) 342.
. Under section 240 of the federal Penal Code interstate shipments of intoxicating liquors, etc., are prohibited unless each package containing the same “be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents, and the quantity contained therein.” Under the provisions of this section of the Penal Code a common carrier of interstate commerce is therefore apprised, when intoxicating liquor is received by it for shipment, of that fact, and, since the passage of the Webb law, before it delivers such liquor to the consignee in this state it should inform itself as to the purpose of the consignee with reference to the liquor. If it has liquor in its possession in this state for delivery to a person who intends to use it in violation of the law, or actually delivers it in this state to such person, then, presumptively, it has itself been guilty of a violation of the law.
“When an act denounced by the law is proved to have been committed, in the absence of countervailing evidence, the criminal intent is inferred from the commission of the act.”—Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; Tinker v. State, supra.
The court below committed no error in overruling the defendant’s demurrer to the bill, and, under the facts stated in the bill, he had authority to grant the preliminary writ of injunction.
(8) In our opinion, however the court should have granted the defendant’s motion to dissolve' the preliminary writ of injunction. If, in good faith, and after proper investigation, a common carrier of interstate commerce delivers liquors to a consignee without any
(9) The above being our conclusions, the decree of the court below refusing to dissolve the preliminary injunction is hereby reversed, and a decree is here rendered dissolving said injunction, and the cause is remanded for further proceedings in the court below.
Reversed, rendered, and remanded.