Fourment v. State

• Decision Date: 09 April 1908
• Citation: 46 So. 266,155 Ala. 109
• Parties: FOURMENT v. STATE.
• Court: Alabama Supreme Court

46 So. 266

155 Ala. 109

FOURMENT v. STATE.

Supreme Court of Alabama

April 9, 1908

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Z Frank Fourment was convicted of violating the liquor laws and he applied for habeas corpus for his discharge on the ground of the unconstitutionality of the law. From a judgment denying the writ, he appeals. Affirmed.

Acts 1907, p. 518, is as follows:

"An act to further regulate the opening, closing and operating saloons, and giving away or selling spirituous, vinous or malt liquors under a license from the state and to punish violations thereof.

"Section 1. Be it enacted by the Legislature of Alabama, That from and after January first, 1908, it shall be unlawful for any one authorized by license from the state, to sell spirituous, vinous or malt liquors, or the employé, agent or servant of such person to have open or to admit any one or more persons into the house or place wherein spirituous, vinous or malt liquors are stored, kept or sold, under such license, or to give away or sell any spirituous, vinous or malt liquors in any quantity in or from the house or place where such liquors are stored, kept or sold, before the hour of six o'clock in the morning in any place, town or city, or after the hour of seven o'clock in the evening in places, towns or cities of less than ten thousand inhabitants or after the hour of eight o'clock in the evening in towns or cities of not less than ten thousand nor more than fifteen thousand inhabitants or after the hour of nine o'clock in the evening in cities of more than fifteen thousand inhabitants.

"Sec. 2. That any person or persons having a license to sell spirituous, vinous or malt liquors, or the agent, employé or servant of such person or persons who directly or indirectly sells or gives or delivers any spirituous, vinous or malt liquors to any person in or from such house or place in which license authorizes the doing of business at any time prohibited by this act shall be guilty of a misdemeanor and on conviction shall be fined not less than fifty nor more than five hundred dollars and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months.

"Sec. 3. That when any person is convicted for a violation of this act a copy of such conviction shall be certified by the clerk of the court wherein such conviction is had to the judge of probate of the county and on it being shown to the probate judge that the person or persons having such license or his agent, employé or servant has been convicted for two violations of this act the probate judge shall cancel such license to sell spirituous, vinous or malt liquors.

"Sec. 4. That an indictment for a violation of this act shall be sufficient if it charges 'that ______ having a license to sell spirituous, vinous or malt liquors, or being the agent, employé or servant of one having such license did keep open saloon, or sell or give away spirituous, vinous or malt liquors in or from a house or place where such liquors were kept, stored, or sold or did admit persons into such house or place at an unlawful hour and contrary to law and so forth.'

"Sec. 5. The number of inhabitants in any city or town or place shall be determined by the last legally authorized census.

"Approved Aug. 2, 1907."

Erwin & McAleer and B. B. Boone, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

Where one is in custody which is predicated upon an assumed and exercised judicial jurisdiction of matter or person that it is asserted did not legally exist, habeas corpus is the remedy to institute an investigation of the existence of such jurisdiction; an inquiry very different from one involving the merely erroneous or irregular exercise of existent jurisdiction. Code 1896, § 4838; Ex parte Sam, 51 Ala. 34; City of Selma v. Till, 42 So. 504; Church on Habeas Corpus, §§ 356, 352. That this remedy, under the conditions defined, is appropriate, has, on several occasions, served to invite, without question, the decision of this court. We therefore take up for review the constitutionality of the act approved August 2, 1907. Acts 1907, pp. 518-519. This bill was, by the Senate, substituted for Senate Bill 344. The latter bill had been introduced and referred to a standing committee of that body which committee had, before the substitution, regularly considered it and reported thereon favorably. The title of the original bill was: "To...