Dowda v. State

• Decision Date: 30 October 1919
• Docket Number: 6 Div. 925
• Citation: 203 Ala. 441,83 So. 324
• Parties: DOWDA v. STATE.
• Court: Alabama Supreme Court

83 So. 324

203 Ala. 441

DOWDA v. STATE.

6 Div. 925

Supreme Court of Alabama

October 30, 1919

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Joseph R. Tate, as solicitor of the Tenth Judicial Circuit of the State, against B.B. Dowda, to condemn property because of manufacture of prohibited liquors thereon. From decree overruling demurrer to the bill, respondent appeals. Affirmed.

The style of the bill is the State of Alabama v. One House and Two Lots and B.B. Dowda, and it is brought by Joseph R. Tate as solicitor for the Tenth judicial circuit, wherein the real estate is situated. The bill describes the property; alleges that the lots and buildings were in the possession of said Dowda, that he claimed to own the same, and that they were being used for the unlawful manufacture of prohibited liquors; that a large still was located in the basement thereof; and that Dowda had knowledge that said still was located and being operated on said lot and in said structure. The demurrers raised the proposition discussed in the opinion.

Judge Roe & Charlton, of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MAYFIELD J.

This is a suit in equity to abate a "liquor nuisance," by condemning and confiscating the premises--a house and lot in the city of Birmingham, Ala.--alleged to be used for the manufacture or distillation of intoxicating liquor.

Such a proceeding was sought to be authorized or provided for by an act of the Legislature of this state, approved January 25 1919, commonly known as the Shaw Bill or the Bone-Dry law. The title of this bill is as follows:

"To further suppress the evils of intemperance; to restrict the receipt, possession and delivery of spirituous, vinous, malted, fermented or other intoxicating or prohibited liquors and beverages and fixing punishment and penalties."

Section 12 of the act provides that all appliances used for the purpose of distilling intoxicating liquors in violation of law are declared to be contraband, and that the owner of all illegal distilleries or plants for the making of prohibited liquors, and any person permitting the same to exist on his premises, shall forfeit to the state all property used in connection with such illegal plant, together with the buildings and lots, or parcels of ground constituting the premises on which the unlawful act is performed or permitted to be performed, and that a bill may be filed on the equity side of the circuit court of the county in which the property is located for the abatement of the nuisance.

The sufficiency of the bill was tested by demurrer. The trial court overruled the demurrer, and from that decree the defendant prosecutes this appeal.

The main grounds of demurrer argued on this appeal raise the questions as to the constitutionality of section 12 of the act, which attempts to authorize the proceeding to abate the nuisance by a condemnation and confiscation of the property.

It is first insisted that section 12 of the act violates section 45 of the Constitution, in that it is not germane or properly referable to the title of the act. In other words, that the subject-matter of section 12 is not properly embraced within the title. A title, "To further suppress the evils of intemperance" will certainly warrant or authorize an enactment or a provision to abate liquor nuisances, and to destroy property used in creating or maintaining such nuisance, and such is the object and purport of section 12 of the act in question. Toole's Case, 170 Ala. 47, 54 So. 195; Fulton's Case, 171 Ala. 572, 54 So. 688; In re State ex rel. Atty. Gen., 179 Ala. 639, 60 So. 285.

It is next insisted that section 12 of the act violates the provisions of our state Constitution, which guarantees to the citizens the inalienable right of trial by jury, and which guarantees that the right shall remain inviolable. The answer to this contention is that the proceeding to abate a nuisance or to condemn and confiscate property which is being used to create or maintain such nuisance, and in violation of law, is not a proceeding in which the right of jury trial existed at common law, or by statute when the Constitution was adopted, and it is therefore not within the protection of these constitutional provisions. The proceeding provided for in section 12 of the act is in the nature of a civil libel in rem, and not against the person. U.S. v. La Vengeance, 3 Dall. 297, 1 L.Ed. 610; Barnacoat v. Six Casks of Gunpowder, 1 Metc. (Mass.) 230. These constitutional provisions as to jury trials do not extend to all trials or judicial proceedings, but only to those, or similar kinds, which existed when the Constitution was adopted. If a jury trial was not authorized or required in a particular kind of judicial proceeding when the Constitution was adopted, then it did not exist or was not required by these provisions of the Constitution relating to jury trials. They did not confer or create the right of trial by jury, but they did perpetuate the right which existed when the Constitution was adopted. Hathorne v. Panama Park Co., 44 Fla. 194, 32 So. 812, 103 Am.St.Rep. 138.

The right of jury trial did not extend to equity cases as a matter of right when our Constitution was adopted, nor to proceedings like the one in question, provided for...