Borck v. State
| Decision Date | 11 May 1905 |
| Citation | 39 So. 580 |
| Parties | BORCK v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Criminal Court, Jefferson County; S.E. Green, Judge.
"Not officially reported."
Richard A. Borck was convicted of selling liquor on Sunday, and appeals. Reversed.
B. M Allen, for appellant.
Massey Wilson, Atty. Gen., for the State.
The appellant was tried and convicted for selling liquor on Sunday in violation of the act approved February 23, 1903 entitled "An act to prohibit the sale of liquor on Sunday." Acts 1903, p. 64.
The validity of this act is assailed on constitutional grounds. It is contended that the act is violative of section 45, art 4, of the Constitution, which provides that "each law shall contain but one subject, which shall be clearly expressed in its title," etc. The first section of the act prohibits any person from keeping open a barroom or other place for the sale of spirituous, vinous, or malt liquors and any dealer in spirituous, vinous, or malt liquors from selling such liquors, on Sunday, and fixes a punishment for a violation of the law. A proviso then follows wherein it is provided "that if any person is convicted twice under this act for offenses committed within one year, such person shall also forfeit his license and be debarred from conducting for himself or another the business of a dealer in spirituous, vinous, or malt liquors for a period of two years after such conviction." The second section imposes certain duties upon the clerk of the trial court and on the judge of probate in the event of a second conviction, and prohibits the judge of probate from issuing a license within two years after the second conviction. The third section provides a penalty for a violation by any probate judge of his duty under section 2. 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 acts cannot be said to be offensive to the above-mentioned provision of the Constitution. Ballentyne v. Wickersham, 75 Ala. 533.
It is further contended that the act is offensive to the provisions of both the federal and the state Constitutions against cruel and unusual punishment, in that for the second offense the defendant forfeits his license and is prohibited from engaging in the business for a period of two years. We are unable to see anything that is either cruel or unusual in the punishment. That it is within the police power of the state to regulate, or to absolutely prohibit, the sale of spirituous, vinous, or malt liquors, is too firmly settled to admit of question. If the state can prohibit the sale as to all persons, it certainly has the power to prohibit it as to a class that the state deems unfit to engage in the business--to such as will not observe and obey the laws of the state made in regard to the traffic. "A license, whether revocable in terms or not revocable, is neither a contract nor property in any constitutional sense, but is subject at all times to the police power of the state." Powell v. State, 69 Ala. 10. The courts of other states have upheld similar statutes authorizing a revocation of license for a violation of the liquor laws. See the cases collected in 17 Am. & Eng. Ency. Law (2d Ed.) p. 215, notes 7-13, and pages 263, 264, notes 1-9.
The questions by the defendant on the cross-examination of the state's witness Plunkett called for evidence tending to show activity, interest, and bias on the part of the witness in the prosecution, and therefore in a measure affecting the credibility of his evidence, and the court erred in sustaining the state's objections.
The defendant, having testified as a witness on his own behalf that he did not remember making the sale testified to by the witness Plunkett, was asked by the solicitor on cross-examination whether he sold liquor on that day, or was accustomed to selling on Sunday. The defendant objected to...
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...E. 397; State v. Gibbs, 109 Minn. 247, 123 N. W. 810, 25 L. R. A. (N. S.) 449; Gordon v. State, 7 Ga. App. 691, 67 S. E. 893; Borck v. State (Ala. Sup.) 39 So. 580; Strother v. State, 15 Ala. App. 106, 72 So. 566; Board of Com'rs of Excise of Onondaga County v. Backus, 29 How. Prac. (N. Y.)......
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