Beauvoir Club v. State

• Decision Date: 24 January 1907
• Citation: 42 So. 1040,148 Ala. 643
• Parties: BEAUVOIR CLUB v. STATE.
• Court: Alabama Supreme Court

42 So. 1040

148 Ala. 643

BEAUVOIR CLUB v. STATE.

Supreme Court of Alabama

January 24, 1907

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

The Beauvoir Club was convicted of keeping open its clubroom for the sale of intoxicating liquors on Sunday, and it appeals. Affirmed.

The indictment is set out in the opinion. Demurrers were interposed as follows: "(1) Said indictment fails to state that at the time of the commission of the offense charged this defendant was a merchant or shopkeeper. (2) That so much of the act approved February 23, 1903, entitled 'An act to prohibit the sale of liquor on Sunday' [Gen. Acts 1903, p. 64], as undertakes to prohibit and punish the keeping open on Sunday a barroom or other place for the sale of spirituous, vinous, or malt liquors, is unconstitutional in this: That said prohibition is not clearly express in its title. (3) The act approved February 23, 1903, entitled 'An act to prohibit the sale of liquor on Sunday,' is unconstitutional in this: Said act contains more than one subject. (4) Said indictment charges no offense known to the law of Alabama." These demurrers being overruled, the defendant filed pleas as follows "(1) Not guilty. (2) That the only disposition made by this defendant of spirituous, vinous, or malt liquors on Sunday was exclusively to its members, and the defendant avers it has the right to so dispose of spirituous, vinous or malt liquors to its members on Sunday under the third section of an act of the Legislature approved February 17 1897, entitled 'An act to confirm the incorporation of the Beauvoir Club, of Montgomery, Alabama, and to enlarge its powers and capacities' [Acts 1896-97, p. 1160], which said third section of said act is hereby referred to and made a part hereof, and is specially pleaded as a defense to this action. [ Here follows third section of act referred to.] (3) That this defendant is a private social and literary club inaccessible to the public. (4) That the disposition by this defendant of spirituous, vinous, or malt liquors is at all times confined to its own limited membership of less than 200 members. (5) That this defendant is not engaged in the business of a liquor dealer. (6) That this defendant keeps open its clubrooms on Sunday for the social and literary uses of its members, and not for the sale of spirituous, vinous, or malt liquors." Demurrers were interposed and sustained to these pleas.

Marks & Sayre and Rushton & Coleman, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The indictment is in the following language: "The grand jury of said county charge that, before the finding of this indictment, Beauvoir Club, a corporation, did on Sunday unlawfully keep open a clubroom for the sale of spirituous, vinous, or malt liquors, against the peace and dignity of the state of Alabama." It is founded on the act of the Legislature entitled "An act to prohibit the sale of liquor on Sunday," approved February 23, 1903 (Pamph. Acts 1903, p. 64). The defendant demurred to the indictment on the ground, among others, that "so much of said act as undertakes to penalize the keeping open of a barroom or other place for the sale of liquors on Sunday is violative of the Constitution, in that the same is not clearly expressed in the title of the act." In respect to this act we said in a former case: "The title of the act is in a sense general and contains but one subject, 'To prohibit the sale of liquor on Sunday.' This is clearly expressed. Everything contained in the several sections is directed to the subject of the law as expressed in the title, and we think plainly and unquestionably germane and referable to the subject. Whenever this is the case, the act cannot be said to be offensive to section 45, art. 4, of the Constitution." Borck's Case (Ala.) 39 So. 580; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224. So it seems that this contention of the defendant is concluded by Borck's Case. Being satisfied with that decision, and in adherence to it, we hold that the trial court properly overruled the third and fourth grounds of the demurrer.

But it is insisted that, even though the first clause of the act, the one on which the indictment is based, is a valid enactment, yet it has no reference to private social clubs, and therefore the indictment charges no offense. The argument by the defendant in support of the insistence is that the act is a police regulation; that such regulations are made with reference to the conduct of individuals in its bearing on the public; that to promote the public welfare is the sole justification for the curtailment of personal liberties and the regulation of individual acts; that the place is kept open, not for the benefit of the public, but of the members of the club; that, if sales of liquor are made on Sunday by the club to its members in its rooms, this is not an act or acts which affect the public welfare--there is no point of contact with the public--and, therefore, not within the legitimate exercise of the police power. There can be no doubt that the legislation in question must be referred to the police power of the Legislature. Whatever differences of opinion may exist as to the extent and boundaries of this power, and however difficult it may be to render a satisfactory definition of it, there seems no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. These objects belong emphatically to that class which demand the application of the maxim, "salus populi suprema lex," and they are to be attained and provided for by such appropriate means as the Legislature may devise; and while the determination of the Legislature as to what is a proper exercise of its police powers in relation to such objects is not final or conclusive, but is subject to the supervision of the courts, yet the traffic in intoxicating liquors is universally recognized as a proper subject for police regulation, and may be controlled, restricted, or even totally prohibited, without violating any constitutional right. Bartemeyer v. Iowa, 18 Wall. 129, 21 L.Ed. 929; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; 23 Cyc. p. 65, and cases cited in notes 64, 65, and 66.

So far as the demurrer to the indictment is concerned, this court is committed to the doctrine that a transaction whereby an incorporated social club sells intoxicating liquors to one of its members is a sale technically and within the meaning of a statute prohibiting the sale of vinous, spirituous, or malt liquors without a license. Martin's Case, 59 Ala. 34; Manassas' Case, 121 Ala. 561, 25 So. 628. The evil intended to be corrected by the act in question is the keeping open on the Sabbath day of barrooms or other places where liquors are furnished and drunk, and it can make no difference whether few or many persons can obtain admission and buy or obtain the liquors in the club, or whether other people may or not see them buy the liquor, or for what other purpose the place is being operated, if the fact remains, as it does (on the demurrer), that intoxicating liquors are sold on the Sabbath day. State v. Gelpi, 48 La. Ann. 520, 19 So. 468; Mohrman's Case (Ga.) 32 S.E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74. It is also settled law that it is within the legitimate exercise of the police power for the Legislature to enact laws on the subject of abstaining from worldly employments on Sunday, and especially to prohibit the sale of vinous, spirituous, or malt liquors on Sunday, and keeping open places where such liquors are sold. Whether the sale is engaged in as a livelihood or profit, or whether sales are made publicly or privately, or not at all, is of no consequence, if the places are kept open for such sales. Frolickstein's Case, 40 Ala. 725; Dixon's Case, 76 Ala. 89; Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Manassas' Case, 121 Ala. 561, 25 So. 628; Jebeles' Case, 131 Ala. 41, 31 So. 377; Martin's Case, 59 Ala. 34; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224; State v. Common Pleas (N. J.) 13 Am. Rep. 422; State v. Gelpi, 48 La. Ann. 520, 19 So. 468; Mohrman's Case (Ga.) 32 S.E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74; State v. Ambs, 20 Mo. 215; Palmer's Case, 2 Or. 66. In the light of past and current events we encounter no difficulty in reaching the conclusion that keeping open a place for the sale of vinous, spirituous, or malt liquors on the Sabbath (or any other day) is hurtful to the comfort and welfare of society, and as a matter of consequence that the Legislature, in enacting the law in question, was well within the legitimate exercise of the police power, and the fifth ground of the demurrer was properly overruled. We remark that it may be that we should have treated the fifth ground as a "speaking demurrer," as nothing appears on the face of the indictment to show that Beauvoir Club is any more than an ordinary private corporation.

We deem it unnecessary to announce...