93 So. 308 (Ala.App. 1922), 6 Div. 926, State v. Goldstein

Docket Nº:6 Div. 926.
Citation:93 So. 308, 18 Ala.App. 587, 207 Ala. 569
Opinion Judge:BRICKEN, P.J. SOMERVILLE, J.
Party Name:STATE v. GOLDSTEIN.
Attorney:[18 Ala.App. 588]Harwell G. Davis, Atty. Gen., for the State. Beddow & Oberdorfer, of Birmingham, for appellee.
Case Date:June 13, 1922
Court:Alabama Court of Appeals
 
FREE EXCERPT

Page 308

93 So. 308 (Ala.App. 1922)

18 Ala.App. 587, 207 Ala. 569

STATE

v.

GOLDSTEIN.

6 Div. 926.

Court of Appeals of Alabama

June 13, 1922

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

Criminal prosecution by the State against D. B. Goldstein. From a judgment sustaining demurrers to the complaint filed by the solicitor, charging defendant with profiteering, and in effect holding the act void, the State appeals. Affirmed.

Page 309

[18 Ala.App. 588]Harwell G. Davis, Atty. Gen., for the State.

Beddow & Oberdorfer, of Birmingham, for appellee.

BRICKEN, P.J.

This prosecution originated in the municipal court of Birmingham, wherein appellee was charged by affidavit with the offense of violating the terms of the statute approved September 30, 1919 (Acts 1919, p. 1088), known as the antiprofiteering act. From a judgment of conviction in said municipal court, the defendant appealed to the circuit court, and was there put to trial upon a complaint filed by the solicitor. In the circuit court demurrers were interposed to the complaint. The demurrers raised the question of the constitutionality of the act upon which the prosecution was predicated, and the judgment entry shows that the demurrers to this point were sustained, and as a result the court below held the statute in question to be unconstitutional. From a judgment to this effect the state appealed to this court. On submission here this court entertained the opinion that the court's ruling in this respect was without error. But this court not having the authority to so declare, certified the question to the Supreme Court as follows:

Certified Questions from the Court of Appeals.

Appellee was charged by complaint in the municipal court of Birmingham with a violation of the terms of the statute, entitled:

An act "to define trusts, monopolies, combines, profiteering and unlawful acts in hoarding, cornering or storing commodities with the purpose and intent to probably influence the price of food, commodities or any necessities of life and to fix civil and criminal liabilities, penalties or punishment and to provide remedies for the enforcement in such cases." Approved September 30, 1919, Acts 1919, p. 1088.

From a judgment of conviction in said court an appeal was taken to the circuit court, and upon the trial of the case in said court the act, supra, was declared unconstitutional, and from this ruling the solicitor, in behalf of the state, takes this appeal.

For the information of the Supreme Court, the complaint, demurrers, and judgment in the circuit court are set out as follows:

Solicitor's Complaint.

The State of Alabama, Jefferson County.

The Circuit Court of Tenth Judicial Circuit.

On Appeal from Jefferson County Court of Misdemeanors.

The state of Alabama by its solicitor complains of ))))). That within 12 months before the commencement of this prosecution, D. B. Goldstein did sell or offer for sale an article of commodity of clothing, to wit, a pair of ladies' hose, at and for the sum of $1.79, a necessity of life, with the intent of obtaining fraudulent or grossly excessive price over its true or intrinsic worth.

(2) And further that within 12 months before the commencement of this prosecution in said county, D. B. Goldstein did sell or offer for sale a pair of ladies' hose for $1.79, a commodity or article of clothing, a necessity of life, with the intent of obtaining a fraudulent or grossly excessive price over its true or intrinsic worth, against the peace and dignity of the state of Alabama.

Jos. R. Tate, Solicitor.

Demurrer to Information.

Comes the defendant, D. B. Goldstein, and demurs to the complaint or information and each count thereof separately, and for grounds of demurrer sets down and assigns the following:

(1) Because said complaint or information states no offense.

[18 Ala.App. 589] (2) Because it does not appear whether the intent was to obtain a fraudulent or a grossly excessive price.

(3) Because it does not appear, except as a conclusion of the pleader, that there was an intent to obtain a fraudulent or grossly excessive price.

(4) Because it does not appear at what price said article was sold, or intended to be sold, nor what would have been a fair or reasonable or lawful price to sell the same.

(5) Because it does not appear what was the true or intrinsic worth of the article.

(6) Because the act, entitled "An act to define trust, monopolies," etc. (Acts 1919, p. 1088), or so much thereof as is relied upon in this case, and upon which the complaint or information is drawn, is contrary to the Constitution of the United States.

(7) Because the act under which this complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of this complaint or information, is in violation of the Constitution of Alabama.

(8) Because the act under which this complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of the complaint or information, is in violation of section 6 of the Constitution of Alabama, and is null and void.

(8) Because the act under which this complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of the complaint, is in violation of section 7 of the Constitution of Alabama, and void.

(9) Because the act under which the complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of

Page 310

the complaint or information, is in violation of section 22 of the Constitution of Alabama, and void.

(10) Because the act under which this complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of the complaint or information, is in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States, and is void.

(11) Because the act under which this complaint or information is drawn (Acts 1919, p. 1088), or so much thereof as is the basis of the complaint, is in violation of article 7, section 10, of the Constitution of the United States, and void.

(12) Because it does not appear that the defendant was or remained a party to any profiteering, except as a bare conclusion of the pleader, and no sufficient facts are alleged to warrant the conclusion.

(13) Because the law upon which the complaint or information is based does not define the offense of profiteering, but leave the nature of said offense to the whim of a judge or jury, and is in violation of the Constitution of Alabama, or the Constitution of the United States, either or both.

(14) Because the statute entitled "An act to define trust," etc., approved September 30, 1919 (Acts 1919, p. 1088), is in violation of the provision of the Constitution of Alabama (section 6), which provides that "the accused shall have the right to demand the nature and cause of the accusation," and the provision that the accused "shall not be deprived of life, liberty or property except by due process of law," and in violation of section 7 of the Constitution of Alabama, wherein it is provided, "and no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied."

Beddow & Oberdorfer, Def'ts. Attys.

Filed in court this 7th day of March, 1921.

Judgment Entry.

The State v. D. B. Goldstein.

Affidavit for Profiteering.

Appealed from Jefferson County Court of Misdemeanors. Honorable H. P. Heflin, presiding.

This, the 7th day of March, 1921, came Joseph R. Tate, solicitor, who prosecutes for the state of Alabama, and also came the defendant in his own proper person and by attorney, and the defendant demurs to the solicitor's complaint in this cause this day filed, which said demurrer coming on to be heard and determined by the court, after due consideration thereof by the court, it is ordered by the court, and it is the judgment of the court, that said demurrer be, and the same is hereby, sustained by the court on account of the unconstitutionality of the statute under which the defendant is being prosecuted; and it is ordered by the court that said defendant be, and he is therefore, discharged.

Notice of Appeal being given by the state, and it appearing to the court that certain questions of law were reserved by the state of Alabama for the consideration of the Court of Appeals of Alabama, it is ordered by the court that the execution of the judgment in this cause be, and the same is hereby, suspended until the decision of this cause by said Court of Appeals of Alabama.

Certified Questions to Supreme Court.

Under the provisions of the statute in such cases made and provided, the following questions are hereby submitted to the Supreme Court for determination:

1. Is the act, entitled "An act to define trusts, monopolies, combines, profiteering and unlawful acts in hoarding, cornering or storing commodities with the purpose and intent to probably influence the price of food, commodities or any necessities of life and to fix civil and criminal liabilities, penalties or punishment and to provide remedies for the enforcement in such cases," approved September 30, 1919 (Acts 1919, p. 1088), violative of section 6 of the Constitution of Alabama?

2. Is the act supra violative of section 7 of the Constitution of Alabama?

3. Is the act supra violative of section 22 of the Constitution of Alabama?

4. Is the act supra violative of the Constitution of Alabama, or of section 1 of the Fourteenth Amendment of the Constitution of United States?

The above questions are submitted to the Supreme Court as abstract propositions, as directed by the statute, reference being made [18 Ala.App. 590] to the case in which the questions arise, for the convenience and information of the Supreme Court.

C. R. BRICKEN, Presiding Judge.

WM. H. SAMFORD,

H. P. MERRITT, Judges.

In response to same the Supreme Court rendered the following opinion:

The State of Alabama v. D. B....

To continue reading

FREE SIGN UP