Hardin v. State

• Decision Date: 22 January 1941
• Docket Number: 8 Div. 902.
• Citation: 3 So.2d 89,241 Ala. 4
• Parties: HARDIN v. STATE.
• Court: Alabama Supreme Court

3 So.2d 89

241 Ala. 4

HARDIN v. STATE.

8 Div. 902.

Supreme Court of Alabama

January 22, 1941

BROWN, Justice.

Hardin purchased three cases, seventy-two pints of alcoholic liquors in Tennessee, on which the federal taxes had been paid containing the proper internal revenue stamps, and transported said liquor in a truck into Madison County, this State, where he was arrested for "violating the prohibition law." The liquors did not have the state stamps thereon, nor did the defendant have a license or permit issued by the Board, to deal in liquors or transport or import the same. He had had it in his possession three hours.

Complaint was made under oath before the clerk of the Circuit Court by the arresting officer charging that "Larry Hardin did sell or have in possession illegally, give, barter, exchange receive, deliver, carry or ship, prohibited liquors, contrary to law."

On this complaint a warrant issued by the clerk commanding Hardin's arrest for "violating the prohibition law" returnable unto the Circuit Court, where he was subsequently tried, by the court without the intervention of a jury, resulting in his conviction and fine of one hundred dollars, and failing to pay the fine, was sentenced to hard labor for thirty days for the payment of the fine and seventy-four days for the payment of $54.83 in costs.

The judgment of the court recites: "Defendant, being duly arraigned in open court upon an affidavit on a charge of violating the prohibition law, for his plea thereto says he is not guilty; issue joined on said plea. Defendant having withdrawn his demand for a jury in this case, it is submitted to the court upon the evidence. The court, after hearing and considering the evidence, finds the defendant guilty and fixes his fine at One Hundred Dollars." [Italics supplied.]

From the judgment of conviction Hardin appealed to the Court of Appeals, 3 So.2d 83, and on the original consideration, the court treating the conviction as for a violation of the prohibition law, in a unanimous opinion reversed the judgment and discharged the defendant, stating as a reason therefor that under the provisions of § 49 of the Alabama Beverage Control Act, Gen.Acts 1936-37, Sp.Sess., p. 80, Code 1940 Tit. 29, § 66, he had three days after receiving said liquors to report the same to the Alabama Beverage Control Board, and have the same taxed and stamped. On application for rehearing there was a division of opinion, the Presiding Judge adhering to the original views, while the other Judges expressed the view, that under that part of the provision of § 51 of the Alabama Beverage Control Act, Gen.Acts 1936-37, Sp.Sess., p 83, Code 1940 Tit. 29, § 68, which provides: "In all Counties of the State it shall be unlawful for any person firm or corporation to have in his or its possession any still or apparatus to be used for the manufacture of any alcoholic beverage of any kind, or any alcoholic beverage of any kind illegally manufactured, or transported, within the State, or imported into the State from any other place without authority of the Alcoholic Control Board of the State, and any person, firm or corporation violating this provision or who transports any illegally manufactured alcoholic beverages, or who manufactures illegally any alcoholic beverages, upon conviction, shall be punished as now provided by law"--the defendant is guilty and the judgment should be affirmed. [Italics supplied.]

The question certified by the Presiding Judge of the Court of Appeals, as "the sole question involved:" "The specific question involves the construction of Section 49 of the Alabama Beverage Control Act, as will be noted in the two opinions of the judges of this court. Said opinions are hereby transmitted to you as being the best manner of stating the disagreement of the judges of this court upon which this certification is rested." [Italics supplied.]

Courts take judicial notice of the Governor's proclamation declaring the result of the election under the Alcoholic Beverage Control Act and that Madison County is a "wet" county, within the meaning of said Act; that said Act, and such rules as the Alcoholic Beverage Board, may promulgate within the authority of that Act, regulate the sale, having in possession, receiving, delivering and carrying of alcoholic liquors and beverages in said county.

This is so by the terms of § 51 of the Act which provides, inter alia: "When the returns from said election are tabulated, the Governor shall issue a proclamation declaring the result of the election in each of the counties of the State. In every County where a majority of the electors voting in said election vote 'Yes', this Act, and all of its provisions, shall be immediately put into operation in such County, but in every County where a majority of the electors voting in said election vote 'No', this Act shall not go into effect in such County, and all laws prohibiting the manufacture and sale of alcoholic liquors or beverages now in force and effect in Alabama shall remain in full force and effect in every such County."

It is therefore clear, that of whatever offense Hardin may be guilty under the facts, he is not guilty of "violating the prohibition law" according to the generally accepted meaning of that phrase. Slater v. State, 230 Ala. 320, 162 So. 130, 132.

Section 49 of the Alcoholic Beverage Control Act, as to the meaning of which the Judges of the Court of Appeals differ provides: "Any person, firm, corporation, club or association of persons, who purchases, and/or receives, and/or who brings into the State in any manner whatsoever, any of the articles of alcoholic beverages enumerated herein, which does not have affixed revenue stamps, crowns or lids, or stamps or identification as described in this Act, shall within three (3) days of the receipt of such articles of alcoholic beverages, report the receipt or purchase of said alcoholic beverages to the Board, giving the date of purchase or receipt, the name of person or firm from who [whom] purchased or received, and a list describing the articles of alcoholic beverages so purchased or received. This report must be made by registered mail, or in person. Any person, firm, corporation, club or association of persons who fails and/or refuses to make the report as required in this subsection, shall be guilty of a misdemeanor and upon conviction shall be fined not less than Five ($5.00) Dollars, nor more than One Hundred ($100.00) Dollars, or imprisoned not to exceed thirty days for each offense." [Italics supplied.]

Section 2 of the Alcoholic Beverage Control Act, Code 1940, Tit. 29,§ 1, contains a definition of words and phrases, among others--"person" "club" "association" "corporation," & c.

Section 6 of the Act, Code 1940, Tit. 29, § 5, provides: "The functions, duties and...