Akers v. State
| Decision Date | 02 March 1940 |
| Parties | AKERS v. STATE. |
| Court | Tennessee Supreme Court |
C. C. Jackson and C. L. Cummings, both of Murfreesboro, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
The defendant was found by the jury trying him to have been guilty of the offense of the unlawful possession of intoxicating liquors and they fixed his fine at $400. To this the court added a workhouse sentence of ninety days, and from the judgment below the defendant has appealed in error.
Numerous assignments of error are made in this court, but three of these assignments of error only are pressed upon us in brief and argument and our consideration may be confined to a discussion of these three contentions.
It is first urged that the court below erred in not sustaining the defendant's motion to quash the indictment. The indictment charged the defendant with the possession of intoxicating liquors. The argument is that since the enactment of chapter 69 of the Public Acts of 1933, the possession of beer in this State is not unlawful. It is therefore insisted that the indictment herein should have negatived any possession of beer by the defendant. This matter has been decided to the contrary in McHenry v. State, 168 Tenn. 667, 80 S.W. 2d 655.
It is next urged that chapter 49 of the Public Acts of 1939 worked a repeal by implication of sections 11215 et seq. of the Code prohibiting the reception, possession and transportation of intoxicating liquors. The Act of 1939 was what is commonly called a local option statute and made the reception, possession and transportation of liquors lawful in such counties as in a favorable election approved these changes.
The Act of 1939, on its face, could not possibly be treated as a repeal by implication applicable to the whole State of the previous liquor laws.
Section 17 of chapter 49 of the Acts of 1939 is in these words: "That in the several counties in which no local option election is held, or if held a majority of votes cast therein are against local option, then as to that county nothing in this Act shall be so construed as to modify in any respect the statutes now in force relating to the manufacture, sale, transportation, or possession of intoxicating liquors, but the same shall remain in full force and effect."
As we understand the argument, counsel contend that section 17 is unconstitutional, in violation of Section 8 of Article 1 of the Constitution and Section 8 of Article 11 of the Constitution, in that it creates an arbitrary and unreasonable discrimination in favor of, or against, citizens of particular counties of the State. This argument is no doubt fully answered by the opinion of this court in Clark et al. v. State ex rel. Bobo, 172 Tenn. 429, 113 S.W.2d 374, 782.
Furthermore, if section 17 of the Act were held unconstitutional and stricken out of the statute, the defendant's situation would be no wise improved. The elision of this section of the statute would beyond doubt bring chapter 49 of the Acts of 1939 in conflict with Section 17 of Article 2 of the Constitution and render the whole Act bad.
The caption of chapter 49 of the Acts of 1939 is as follows:
"An Act to legalize, regulate, and control the manufacture, sale, receipt, possession, storage, transportation and distribution of, and traffic in, alcoholic beverages, in counties and municipalities of this State, after local option elections are held and, by majority vote, the qualified voters approve the same; to provide for local option elections for said purpose; to levy taxes upon such beverages and provide...
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