Eidge v. City of Bessemer

• Citation: 164 Ala. 599,51 So. 246
• Parties: EIDGE v. CITY OF BESSEMER.
• Decision Date: 30 June 1909
• Court: Supreme Court of Alabama

51 So. 246

164 Ala. 599

EIDGE v. CITY OF BESSEMER.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from City Court of Bessemer; William Jackson, Judge.

W. S Eidge was convicted of unlawfully keeping intoxicants on storage, and he appeals. Reversed and rendered.

McClellan Denson, and Simpson, JJ., dissenting.

The ordinance is as follows:

"Section 1. Be it ordained by the city council of Bessemer as follows: That it shall be unlawful and constitute a violation of this ordinance if any person, firm or corporation in the city of Bessemer have or keep on storage or deposit or have therein any vinous, spirituous or malt liquors, or intoxicating beverages, or any beverage which is a product of maltace or gencase as a substantial ingredient, in or at any place where any drinks or beverages are sold or kept for sale.

"Sec. 2. Be it further ordained by the city council of Bessemer that section 1 of this ordinance shall not apply to any druggist who is a licensed pharmacist, or who regularly employs a licensed pharmacist, or who sells pure alcohol for medicinal purposes only, or who sells grain alcohol to chemists and bacteriologists actually engaged in scientific work, and for such purposes only, and wine to be used for sacramental purposes only, or from using alcohol in the compounding of prescriptions or other medicines the sale of which would not subject them to the payment of a special tax required of liquor dealers by the United States."

Section 3 provides a punishment for a violation.

The other matters sufficiently appear in the opinion.

Thomas T. Huey and Pinkney Scott, for appellant.

Ben G. Perry, H. A. Lock, J. A. Smith, and Samuel D. Weakley, for appellee.

SAYRE J.

The proceeding against the appellant was had under an ordinance of the city of Bessemer which will appear in the reporter's statement of the case. It is at this day universally held that the prohibition by the state of the manufacture and sale of intoxicating liquors and beverages within its territory is a constitutional exercise of the police power. The multiplication in recent years of statutes and court decisions relating to the subject indicates a general and growing determination to make prohibition effective according to the popular intent. Mr. Black, a much-quoted authority on the subject, states the theory and policy of such laws in the following language: "The evil to be avoided is the communication from one to another of an article which may be injurious to the recipient, or which, by its general use, may demoralize or harm the whole community. It is not attempted to restrain a man's private indulgence in drink; but that is because the law deals not with the isolated individual, but with men in their relation to each other." Black, § 39. No purpose to put intoxicating liquors outside the pale of the law has ever as yet been announced in statutory enactment. On the contrary, so far as this state is concerned, the general prohibition law of November 23, 1907 (Acts Sp. Sess. 1907, p. 71), preserves by exception to retail druggists the right to sell alcohol and wine for certain designated purposes, and necessarily further recognizes the lawfulness of keeping intoxicating liquors and beverages by a provision that the act shall not prohibit the serving of the liquors and beverages mentioned therein in private residences in ordinary social intercourse. In the License Cases, 5 How. 504, 12 L.Ed. 256, Taney, C.J., says: "Spirits and distilled liquors are universally admitted to be subjects of ownership and property." In Dorman v. State, 34 Ala. 216, in a judgment sustaining a local prohibition statute, R. W. Walker, J., said: "The form in which the question is stated assumes that spirituous liquors are property. Of this there is no doubt, and we will not waste words upon a proposition about which there can be no reasonable dispute [Wynehamer v. People] 3 Kern. [ 13 N. Y.] 384. All property is equally sacred in the view of the Constitution. And hence we are not permitted to listen to a suggestion that this particular species of property is so pernicious in its influence upon society that the best interests of the state would be promoted by its destruction. The description of property to which this act refers has nothing to do with this controversy; for a statute, depriving a citizen of his property in spirituous liquors, is just as clearly in conflict with the Constitution as one which should take from him his lands, houses and slaves." This decision was rendered in 1859. The fact that an intervening vis major has overruled it in part does not affect its force or application to the case in hand. In Ex parte Mayor of Florence, 78 Ala. 419, it was said that "liquors are considered property, the subject of ownership, and entitled to protection, though, like other property, held subject to the condition that it shall not be so used as to injure the equal rights of others, or the interests of the community."

Counsel for appellee announce their inability to see any justice or common sense in a rule which would differentiate intoxicating liquors and beverages from burglars' tools, lottery tickets, infected clothing, or diseased animals. They argue that liquors are put by the statute outside the pale of the law. Much the same argument was made in Preston v. Drew, 33 Me. 558, 54 Am. Dec. 639. In response, Shepley, C.J., said: "It is, however, insisted on argument that a person, by the common law, can no more acquire property in spirituous and intoxicating liquors than he can in obscene publications and prints. There is a clear and marked distinction between them. Such liquors may be applied to useful purposes. This is admitted in the act by its authorizing their sale for medical purposes. It is their abuse or misuse alone which occasions the mischief. Obscene publications and prints are in their very nature corrupting and productive only of evil. They are incapable of any use which is not corrupting and injurious to the moral sense." In Lincoln v. Smith, 27 Vt. 328, the court says: "The act does not declare that they [[liquors] are not property, and there is no language which should receive a construction to forbid their being property. Though there is a command not to sell them, yet that cannot prevent a man from having a property in them for his own use, without any intention to sell them." In the case of West Virginia v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. R. A. 847, the defendant was charged under a statute which made it an offense to "solicit or receive orders for, or keep in his possession for another, spirituous liquors," etc. The court, observing that the provision of the statute which prohibited the keeping in possession for another had no reference to the intent or purpose for which the liquors were kept, but denounced as a crime the simple fact that the liquor was kept in possession for another, however innocent the act or commendable the purpose, and announcing its opinion that, if it be a crime for a person to keep liquor in his possession for another, it would be equally so for him to keep it for himself, said: "The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public; and therefore the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgment of the privileges and immunities of the citizen without any legal justification, and therefore void." And later on: "From what we have already said, it is apparent that the provision of the statute under consideration is not a fair and reasonable exercise of the police power, nor has it any reference to the prohibition or sale of liquors. It is simply an attempt to make the possession of liquors for any purpose a crime. A very different question would be presented if the act had made it unlawful for any person to keep intoxicating liquors in his possession, either for himself or for another, for the purpose of selling it, or as a device to evade the revenue laws."

In the case of State v. Williams, 146 N.C. 618, 61 S.E. 61 17 L. R. A. (N. S.) 299, the court had under consideration a local prohibition statute for the county of Burke, which, after declaring it to be unlawful to manufacture, sell, or otherwise dispose of liquors in the county named, provided as follows: "It shall be further unlawful for any person, except as a druggist, for medical purposes, as aforesaid, to bring into said county of Burke, in any day, more than one-half gallon of such spirituous, vinous or malt liquors." The court announced its opinion in the following language: "Chapter 806 of the Laws of 1907, prohibiting any person from carrying into the county of Burke in any one day more than one-half gallon of vinous, spirituous, or malt liquor, is not a valid exercise of the police power, for that it unduly restricts the right of the citizen to the use if his property, without any intent to violate any prohibited act in relation to it; that the carrying into the county of Burke of the prohibited quantity has no reasonable, substantial relation to the sale of liquors as prohibited by law." We indulge one further quotation, from high authority, as succinctly stating the limitation upon the Legislature in the exercise of the police power: "It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police power of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. * * * If, therefore, a statute purporting to have...