103 Tenn. 685 | Tenn. | 1900
The defendants were prosecuted for unlawfully selling liquors. They were tried in the Court below before the Judge, a jury being waived, and were each fined $50 and costs, and
There are three counts in the presentment — the first charging the sales to have been made within four miles of a schoolhouse, the second charging the sales to have been made within four miles of an incorporated institution of learning, and .the third charging that the sales were in violation of the Acts of 1899, Chap. 221.
The finding of the trial Judge was that the defendants were guilty of unlawfully selling intoxicating liquors as a beverage within four miles of a schoolhouse.
The proof showing sales of such liquors within four miles of a schoolhouse is abundant and is not denied, but is conceded, and excused or justified on the ground that they were within the limits of an incorporated town, and were not, therefore, unlawful.
It is conceded that the sales are contrary to the provisions of the Acts of 1899, Chap. 221: but it is insisted that this Act is unconstitutional and invalid, and hence, the incorporation being legal, the sale is permitted and lawful under the laws existing prior to the passage of said Act.
The 'State insists that the corporation is a sham and device to evade the operation of the law usually called the “four-mile law,” which prohibits
The statutes provide that any part of a county not within any municipality may be incorporated by any number of legal voters over fourteen, being freeholders, and residing within the territory to be incorporated. Shannon, Secs. 1881, 1882, and subsequent provisions of the same compilation, give in detail the proceedings that are required to form the corporation, and provide that unless they are complied with the incorporation shall be void.
It is insisted that the record shows a complete compliance with all the requirements of the statutes relating to the obtaining of charters. These requirements are numerous; they are set out with much of detail in Shannon’s compilation, Secs. 1881 to 1902, inclusive, and are epitomized in the case of Woodbury v. Brown, 101 Tenn. (17 Pickle, 707). In that case it is said that all these requirements must be strictly and literally complied with to render the charter valid. We cannot now take the time to enumerate them all. They are crude as a system and somewhat obscure.
What purports to be the charter is set out in the record in the cross-examination of the wit
We cannot presume from the mere fact recited in the record that the Register of the county presented the charter, that it was registered: besides, the fact that the charter, on being set out, has no certificate of registration, negatives any such presumption, if • it could arise.
It is said, alsoj that the corporation is not made in good faith, but is a mere sham to
In view of these facts the State insists that
“It has been held that the corporation in which the sale is protected must be an active, vital organization, and if in fact a corporation exists, but is not sustained and kept in organized good faith operation, such sale within four miles of an incorporated institution of learning is juilawful. Two questions are open in such case on this point: 1.. Was the original coloration void ? 2. If valid, is an active organization and operation dn good faith and for corporate purposes maintained % If the charter is absolutely void, of course it can be so treated in any collateral attack. If not void, but there is no organization and operation under it in good faith, this can be shown in proof.”
In Buck v. The State, 5 Lea, 351, it wsfs said:
“It was, in any event, the purpose of the Legislature, in excepting from the general provisions of the Act against the sale of liquors Avithin four miles of an institution of learning, only to except sales Avithin the limits of a toAvn or city actually organized as a corporation. The*693 existence of a charter not accepted or acted upon in fact would not meet the object or purpose of the exception.”
It is said the Act of 1899, Chau. 221, is unconstitutional and void, because it conflicts with See. 8, Art. XI., of the' Constitution of Tennessee. The argument is that it makes a partial and unequal application of • what is called the four-mile law — that is, that liquor is allowed to be sold in incorporated towns of the State having 2,000 inhabitants or less which were in existence prior to the passage of the Act on April II, .1899, while in such towns incorporated subsequent to that date it could not be sold; and this, it is claimed, is an arbitrary and unnatural classification and discrimination prohibited by the Constitution. To support this view, defendants rely upon the case ■of Hatcher v. The State, 12 Lea, 368. In that case the Court considered an Act passed in 1883, amending the four-mile law of 1817 so that is should not apply to the sale of liquors within the limits of corporations organized under the Act of 1882, Chap. 127, known as taxing. districts of the second class, to which it was made to apply, and within which such sales were made unlawful. The Court, in that case, held the Act invalid, because it was not a law governing all municipal corporations of the State, but only such as were organized under the Act of 1SS2, and made sales in such cor
The question presented is: Does the amending Act of 1899 stand upon the same footing as that of 1883 above referred to? The substance of the Act of 1899 is that sales of intoxicating liquors shall not be made within -four miles of an institution of learning, even though it be within an incorporated town, if such town was incorporated after the passage of the Act and does not contain as many as 2,000 inhabitants. The argument is that the effect of the amendment is to distinguish between corporations for municipal purposes by providing that sales may be made in such corporation, no matter how many or few inhabitants it contained, if it was in existence before the Act was passed, but if subsequently chartered, it must contain 2,000 inhabitants in order to make such sales legal. The original Act of 1877, known as the four-mile law, was sustained upon the ground that it was a reasonable police regulation, the theory being that incorporated towns would provide the necessary police force, so as to keep down disturbances and breaches of peace that arise out of the sale and use of intoxicating liquors as a beverage. Carrying out this idea, it is not an unreasonable requirement that the corporation should have as many as 2,000 inhabitants, since it could be fairly presumed that adequate police protection could not be furnished and
Even if we concede, therefore, that. the classi-. fication dactrine applies to municipal corporations, which admits of grave doubt (Ballentine v. Pulaski, 15 Lea, 633; Williams v. Nashville, 89 Tenn., 487; Reelfoot Lake v. Dawson, 97 Tenn., 153; Burnett v. Maloney, 97 Tenn., 697), the classification made in this case is not arbitrary and capricious but reasonable and natural, and básed upon the idea that sales of intoxicating liquors will be allowed only when adequate police power can be afforded to protect the peace and good order of the locality.
The reasonableness of such classification is emphasized in • this case, since it is evident that with a voting population of only fifteen, and a taxable property of only $2,100, no adequate police force ' could be,, maintained to preserve society from disturbance and breaches of peace arising out of the sale of intoxicating liquors.
' We are of opinion, therefore, that the defendants are not protected by the so-called incorporation in this case, because of- the defects in procuring the charter already mentioned, and because
The application for continuance in this case on account of the absence of distinguished foreign counsel was properly refused. Tt appears that defendants had able local counsel to represent them, and we can see no prejudice to them in the case.”