69 So. 652 | Ala. | 1915
The complainant, Whittle, filed this hill against the Southern Express Company to compel it to receive at and transport from Pensacola, Fla., to Earner, Ala., a shipment of intoxicating liquors, viz., whisky, consisting of six quarts. Whittle was and is engaged in the liquor business in Pensacola, and, having received an order, accompanied by the requisite cash price, from Fletcher Farmer, who resides at Earner, Ala., and who was one of Whittle’s customers, for the six quarts of whisky mentioned, tendered the shipment to the common carrier at Pensacola, Fla., for transportation to the consignee at Earner, Ala. The carrier re
“Section 1. That it shall be unlawful for any railroad company, express company, or other common carrier’, or any officer, agent or employee of any of them, or any other person to ship or to transport into, or to deliver in this state in any manner, or by any means whatsoever, any spirituous, vinous, malted, fermented or other intoxicating liquors of any kind from any other state, territory or district of the United States, or place noncontiguous to, but subject to the jurisdiction of the United States, or from any foreign country, to any person, firm or corporation within the territory of this state, when the said spirituous, vinous, malted, fer*409 mented or other intoxicating liquors, or any of them, are intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package, or otherwise, in violation of any law of this state now in force, of in violation of any law that may be hereafter enacted in this state, or take effect therein.”
“Sec. 4. That it shall be unlawful for any person, firm or corporation to accept from any railroad company, express company, or other common carrier, or any officer, agent or employee of any of them, or from any other person any delivery of the liquors mentioned in section 1 of this act, or any of them, when transported into this state, or delivered in this state in any manner, or by any means whatsoever from the points or places mentioned in section 1 of this act, where the said person, firm or corporation so accepting such delivery intends to receive, possess, or sell, or in any manner use in original package or otherwise, the said liquors, or any of them, in violation of any laws of this state now in force, or of this act or of any law that may be hereafter enacted in this state or take effect therein.”
“Sec. 12. That it shall be unlawful for any person, firm or corporation, (1) to receive or accept delivery of, or to possess or to have in possession at any one time whether in one or more places, and whether in original packages or otherwise, more than one-half gallon of spirituous liquors, or more than -two gallons of vinous liquors, or more than five gallons of malted liquors, when in kegs, or niore than sixty pints when in bottles, or more than one gallon of any other intoxicating or fermented liquor beyond those thus enumerated; or (2) to receive, accept delivery of, possess, or have in possession fiiiore than one gallon of spirituous liquors, or four gallons of vinous liquors, or more than ten gallons of*410 malted liquors, including" beer and ale, when in kegs, or one hundred and twenty pints in bottles, or more than two gallons of any other fermented or intoxicating liquors beyond those thus enumerated, within any four consecutive weeks, whether in one or more places, but this section shall not apply to the possession of wine or cordial made from grapes or other fruit grown and raised by the person making the same for his own domestic use, when such person keeps such wine or cordial for his own domestic use on his own premises, but this section shall apply upon its enactment into law to such receipt, or acceptance of deliveries, or possession of such liquors respectively, occurring at any place or locality or within any territory in this state, where and within which it shall then be unlawful to sell, keep for sale, or otherwise dispose of said liquors, and it shall become applicable in respect to such receipt or acceptance of deliveries or possession of such liquors occurring at other places or localities, and within other territory in this state when and as soon as it shall become unlawful to sell, keep for sale, or otherwise dispose of such liquors at such places or localities or within such territory; this section shall not affect or modify any existing law or any law enacted at this session of the Legislature in so far as it regulates the sale or keeping for sale of alcohol, or wine for a defined purpose, by wholesale or retail druggists.
“Sec. 13. That any- of the following facts shall constitute prima facie evidence that the liquors mentioned in the subdivisions of this section, respectively, are kept, or had in possession for sale, contrary' feq law, or for other unlawful disposition thereof, to-wit:N (1) The possession of more than one-half gallon of spirituous liquors at any one time, whether in one or more places, or (2) the possession of more than two gallons of vinous*411 liquors at any one time whether in one or more places. (3) The possession of more than, live gallons of malted liquors, when in ltegs,’ or more than sixty pints in bottles, at any one time, whether in one or more places. (4) The delivery to a person, firm or corporation, or any officer, agent or servant of any of them, of more than one gallon of spirituous liquors, or more than four gallons of vinous liquors, or of more than ten gallons of malted or fermented liquors including beer and ale, when in kegs or more .than one hundred and twenty pints in bottles, within any four consecutive weeks, whether in one or more places. (5) The possession of more than two gallons of any intoxicating liquors other than those enumerated in the preceding subdivisions of this section, whether in one or more places; but this section shall not apply to the possession of wane or cordials made from grapes or other fruit grown and raised by the person making the same for his own domestic use, when such person keeps said wine or cordial for his own domestic use on his own premises, nor to alcohol or wine authorized by law to be sold by druggists for defined purposes. This section shall not repeal or modify any other statute of the state declaring what shall constitute the presumption of or prima facie evidence of guilt, of the violation of any law of the state for the promotion of temperance or for the suppression of the evils of intemperance, and this section is in addition to and supplemental to other statutes declaring such presumption or declaring such prima facie evidence of guilt. But this section shall apply upon its enactment into law to all possessions and deliveries of liquors as hereinabove stated when occurring at any place or localities and within any territory of this state, where and within which it shall then be unlawful to sell, keep for sale, or otherwise dispose of said liquors, and it shall become applicable to such pos*412 sessions and deliveries at other places and localities, and within other territory in this state, when and as soon as it shall become unlawful to sell, keep for sale, or other.wise dispose of such liquors at such place, or localities or within such territory.”
“Sec. 19. That this act shall be construed in harmony with all statutes of the United States relating to the transportation of the liquors mentioned in section 1 of this act into this state from points or places outside of the state mentioned in section 1 of this act, and other federal statutes bearing upon interstate shipments of such liquors.”
“Sec. 22. That, in all prosecutions under this act for unlawful shipments of liquors mentioned in section 1 of this act into this state, the offense shall be held to have been committed in any county of the state through which or into Avhich said liquors have been carried or transported, or in which they have been unloaded, or to which they have been conveyed for delivery.” '
Section 23 provides penalties and punishments for violation of the provisions of the law. It is clear that, if the Bonner Anti-Shipping Bill is a valid enactment, forbidding the receipt, or acceptance, or delivery, or the possession of the character of liquors constituting the shipment tendered by Whittle, in the quantity contained therein, regardless of the fact that the consignee only intended to devote these liquors to personal or family use or consumption, the carrier’s refusal to accept this shipment for transportation and delivery, or either, into “dry territory” in the state of Alabama, was justified, and the compulsory process sought by the bill, and granted by the court below, on submission on bill and answer, was laid in error. The purpose undertaken to be expressed in and made effective by the Bonner
It is the complainant’s (appellee’s) theory, and the hill so asserts, that the Bonner Law, as presently pertinent, is void for the following- reasons:
(1) That section 12 violates section 1 of the Constitution (1901) of Alabama, which enumerates as .among the inalienable rights of men the rights of “life, liberty and the pursuit of happiness.”
(2) That section 12 is void under the declarations of ¡section 35 of the Constitution of Alabama, which reads: “That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”
(3) That section 12 violates the fourteenth amendment of the Constitution of the United States, providing that no state shall make or enforce any law which shall .abridge the privileges or immunities of citizens of the United States, and also the provision thereof against the •deprivation, by any state, of the citizen’s life, liberty, ■or'property without due process of law.
(4) That it offends the. “commerce clause” of the ■Constitution of the United States. — Article 1, § 8.
The substance of the Webb-Kenyon Law, title and body, is written' in these words:
■“Aii act divesting intoxicating liquors of their interstate character in certain cases.
“Be it enacted, etc., that the shipment or transportalion, in any manner or hy any means whatsoever, of any*414 spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, 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 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, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby-prohibited.”
The constitutionality of the Webb-Kenyon Law is not directly questioned on this appeal. Its constitutional validity was affirmed by this court in Southern Express Co. v. State, 188 Ala. 454, 66 South. 115: Justice de Graffenried setting forth the views of this court. On the brief for appellant decisions of other jurisdictions to-like effect are collated. A notable contribution to the judicial literature on this subject is afforded by the opinion of Chief Justice Sidney Smith in American Express Co. v. Beer, 65 South. 575. There is, however, a contention for the appellee that asserts conditionally the constitutional invalidity of the Webb-Kenyon Law as upon the theory that, if it is construed to authorize a state to “prescribe the manner or method by which, or the quantity or times in which,” intoxicating liquors; “may be received or possessed, and further attempts to-enforce these regulations as to interstate shipments,”' the Webb-Kenyon Law would then be subject to the fatal objection that it has undertaken to delegate to the states powers with respect to interstate commerce that by the Constitution of the United States are reposed
These particularly illuminating announcements of rule and doctrine were set forth by Chief Justice Fuller in Re Rahrer, 140 U. S. 545, 554, et seq., 11 Sup. Ct. 865, 866 (35 L. Ed. 572) :
“The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive. And this court has uniformly recognized state legislation) legitimately for police purposes, as not in the sense of the Constitu*419 tion -necessarily infringing upon any right which has been confided expressly or by implication to the national government. * * * In short, it is not to be doubted that the power to make the ordinary regulations of police remains with the individual states, and cannot be assumed by the national government, and that in this respect it is not interfered with by the fourteenth amendment. — Barbier v. Connally, 113 U. S. 27, 81 (5 Sup. Ct. 357, 28 L. Ed. 923].”
Intoxicating liquor is universally regarded as a proper subject for the application of the police power. Its capacity or quality, at least, to not only create, but to aggravate, evils prejudicial to various phases of the social order and to the welfare of individuals and their dependents admittedly authorize and require the exertion of the police power upon it. And since the right of intoxicants, intended for unlawful purposes, to enter interstate commerce, is withdrawn by the Webb-Kenyon Law, valid state laws governing the article, enacted under the police power of the state, operate upon intoxicants immediately upon their movement, across the state boundary, into the state of delivery. — Sou. Express Company v. State, supra, 66 Sou. 115; American Exp. Co. v. Beer, 65 South. 574, 580. The power of the state to prohibit the manufacture or sale of intoxicants is never now questioned. It is generally accepted and finally established. The object and purpose of all our laws governing the subject of intoxicating liquors is “to" promote temperance and prevent drunkenness, * * * The evil to be remedied is the use of intoxicating liquors as a beverage. * * * ” — Carl’s Case, 87 Ala. 17, 6 South. 118, 4 L. R. A. 380; Marks v. State, 159 Ala. 71, 84, 85, 48 South. 864, 133 Am. St. Rep. 20. Freund, in his work on the Police Power, at section 204, thus amplifies the idea expressed in our cases above quoted: “It
See Crowley v. Christensen, 137 U. S. 86, 90, 91, 11 Sup. Ct. 13, 34 L. Ed. 620.
The government does not interfere with or impair “any one’s constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society. * * Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare. — Mugler v. Kansas, 123 U. S. 623, 662, 663, 8 Sup. Ct. 273, 298 (31 L. Ed. 205). Neither the fourteenth amendment, nor any other, “was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations, to promote the health, peace, morals, education, and good order of the people. * * * ” — Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923. All personal and related rights and privileges, whether arising out of contracts or out of or pertaining to property, are subject to the lawfully exercised police power of the state, directed to the pro
The declarations of our Constitution guaranteeing’ the rights of life, liberty, and the pursuit of happiness, and asserting the limits of rightful functions in government, on the one hand, and, on the other hand, denouncing the excession of such limits as usurpation and oppression, were never intended to restrict the rightful exercise of the police power by the state. All such rights are assured by the organic laws, but the assurance is ever subject to the power of police, to be exercised for the public welfare, that from necessity inheres in the government of the state. It is the peculiar function of the lawmakers to ascertain and to determine when the welfare of the people requires the exercise of the state’s police powers, and what are appropriate measures to that end, subject only to the power and authority of the courts to see, when assured to the requisite certainty, that the measures of police so adopted do not arbitrarily violate rights protected by the organic laws. — Purity E. & T. Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. In a case involving a state enactment, of -course attributable for authority to the police power, declaring void certain “future” contracts, it was said in Otis v. Parker, 187 U. S. 606, 609, 23 Slip. Ct. 168, 170 (47 L. Ed. 323), Justice Holmes writing that: “If a state thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the courts cannot interfere, unless, in looking at the substance of the matter, they can see that it ‘is a clear, unmistakable infringement of rights secured by the fundamental law.’ — Booth v. Illinois, 184 U. S. 425, 429 [22 Sup. Ct. 425, 46 L. Ed. 623].”
The doctrine of this case particularly consists with that announced in our own cases of Feibelman v. State, 130 Ala. 122, 30 South. 384, and Marks v. State, 159 Ala. 71, 80, 48 South. 864, 133 Am. St. Rep. 20.
It is earnestly urged for the appellee that the doctrine and the pronouncements of governing principle made in the majority opinion in our case of Eidge v. City of Bes
Eidge v. City of Bessemer, 164 Ala. 599, 51 South. 246, 26 L. R. A. (N. S.) 394, cannot be regarded or accepted as a governing authority on this appeal for the following reasons:
(a) There the ordinance of a municipality, not a statute of the state, was the subject of consideration and decision: an ordinance going beyond and in advance of any state statute then of force; and note of this fact
(b) The quotation, on pages 601 and 602 of 164 Ala., on page 252 of 51 South., from section 39 of Black on Intoxicating Liquors; is in conflict with this statement of the long since accepted general legislative purpose, in this state, in the adoption of prohibitory statutes, as set forth in Marks v. State, 159 Ala. 71, 84, 85, 48 South. 864, 869 (133 Am. St. Rep. 20), upon the apt authority of Carl’s Case, 87 Ala. 17, 6 South. 118, 4 L. R. A. 308: “The statute under consideration is but the extension of kindred prohibition statutes to the entire state which were theretofore local. True, it contains provisions not heretofore embodied in local. statutes, which new provisions must yet he construed. The objects and purposes of those statutes had been defined by the courts; and, being incorporated and re-enacted in the general law, they bring with them such judicial constructions. The main object and 'purpose of all is the same. Some may be restricted, and some more extensive and exclusive than others; but the main object and purpose of all,, as said by Justice Somerville, in Carl’s Case, 87 Ala. 17, 6 South. 118, 4 L. R. A. 308, is ‘to promote temperance and prevent drunkenness. The mode adopted to accomplish this end is the prevention of the sale, the giving away, or other disposition of intoxicating liquors. The evil to be remedied is the use of intoxicating liquors as a beverage, rather than as an ingredient of medicines and articles of toilet, or for culinary purposes, and the
(c) The approval of the majority view in the case of State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299, 14 Ann. Cas. 562, which concerned the validity of an enactment of the Legislature of that state, is disapproved; that decision being, in our opinion, unsound.
(d) The doctrine of the case of West Virginia v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, is opposed to the doctrine or principle of our decision in Williams v. State, 179 Ala. 50, 60 South. 903, and the Gilman Case is not now regarded as any measure of authority here on the question of the validity vel non of the Bonner Law.
In tbe consideration of controversies involving the propriety vel non of enactments purporting to be tbe exercise of tbe police power, against admitted evils, tbe acceptance of tbe fact that the thing, or tbe right to or the unrestricted enjoyment of the thing, sought by tbe enactment to be affected, is property, does not at all conclude tbe question to be determined. That fact is but an element of tbe inquiry; and this is true for the reason, as was ruled in Ex parte Mayor of Florence, 78 Ala. 419, and numerous other decisions delivered here and elsewhere, that one’s already acquired property in intoxicants is ever held’subject to tbe superior, yet lawfully exercised, power of police inhering in tbe government of tbe state. Having tbe universally recognized power to qualify tbe enjoyment of tbe ordinary, usual rights and privileges with respect to intoxicants that are generally, normally accorded to other subjects of ownership and enjoyment, by tbe lawful exercise of tbe police power of tbe state, tbe time, primary, controlling inquiry in such circumstances is whether the enactment is a
The generally conceded propriety of the exercise of the police power in respect of the prohibition of the manufacture and sale of intoxicants does not consist with some expressions in the opinion in our case of Dorman v. State, 34 Ala. 216, supra, wherein this court then (upwards of 50 years ago) said, after declaring that all property was equally sacred, that' it was “not permitted to listen to a suggestion that this particular species of property is so pernicious in its influences upon society that the best interests of the state would be promoted by its destruction.” To the immediate contrary the Supreme Court pronounced in Mugler v. Kansas, 123 U. S. 623, 8 Sup. St. 273, 31 L. Ed. 205, when a state enactment had so declared. ' In. this regard the general
To our minds Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, lays the premise for the logically unescapable conclusion that the Bonner Law offends no constitutional provision, invades no right guaranteed or protected by the Constitutions, state or federal, if indeed, it is not a direct authority inviting and supporting that conclusion. We think the correctness of this proposition is demonstrated by expressions of Justice Harlan, who wrote for the court. In this opinion this language of Justice Grier, in the License Cases, 5 How. 504, 631, 632 (12 L. Ed. 256) is approvingly quoted: “The true question presented by these cases, and one which I am not disposed to evade, is whether the states have a right to prohibit the sale and consumption, of an article of commerce which they believe to be pernicious in its effect, and the cause of disease, pauperism, and crime.
It was further said for the court: “It is, however, contended that, although the state may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, ‘no convention or Legislature has the right, under our form of government, to .prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of •others.’ The argument made in support of the first branch of this proposition, briefly stated, is that in the implied compact between the state and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, .liberty, or property without due process of law, and with which the state cannot interfere; that among those rights is that of manufacturing for one’s use either food or drink; and that while, according to the doctrines of the commune, the state may control the tastes, appetites, habits, dress, food, and •drink of the people, our system of government, based apon the individuality and intelligence of the citizen,
"But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, proyided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the- police
“Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive’ any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her-limits, of intoxicating liquors for general use there as;
If the right of common law to manufacture an intoxicating liquor for one’s own personal use, out of one’s own materials by the application of one’s own personal effort, may be forbidden by appropriate legislation under the police power, as was expressly ruled in Mugler v. Kansas, supra, it cannot be logically or soundly asserted that the receipt of possession of more than a specified quantity at one time may not be forbidden by statute, especially when the sale or other disposition of intoxicants is forbidden in the state’s effort to promote temperance and to suppress the eyils of intemperance by visiting its power upon one of the means usually productive of intemperance, viz., the traffic therein, or, as has been before quoted from our Marks and Carl Cases, ante, to remedy the evil present in “the use of intoxicating liquors as a beverage.” The power confirmed in Mulger v. Kansas must necessarily comprehend the lesser mani
The extent to which the police power may be exerted and the circumstances of the cases which will warrant its exertion, which the promotion of the public welfare may present for its exercise, have not been defined. It is not desirable that it should be done. — Noble State Bank v. Haskell, supra.
We may note at this point in the opinion some illustrative instances, — out of a greater number including those afforded by this court in the decisions above cited, —where ancillary prohibitions of acts and conduct, innocent in themselves, have been sustained and confirmed as an exercise of the police power of the state; and so upon the theory that some valid legislative purpose might be more certainly made effective, or that evasions of the laws might be prevented or hindered of accomplishment.
The Lynch Case, quoted before, and the Feibelman Case, will suffice to illustrate the activity of this prin
Our opinion is that section 12 of the Bonner Law is not in conflict with any of the mentioned provisions of the Constitutions, state or federal.
The policy of our laws respecting the subject of intoxicating liquors being to promote temperance and to suppress the evils of intemperance, and to these ends having prohibited the sale or other disposition thereof in the territory to which the six-quart shipment of whisky was consigned by Whittle to Parmer, the present inquiry is: Does the prohibition of the receipt or.possession of more than the stipulated (in section 12) quantity of whisky at one time bear a reasonable relation to the major purposes contemplated, as stated by the lawmakers? The
The court below erred. The bill is without equity. The carrier was justified in its refusal of the shipment
Reversed and rendered.