J.W. Kelly & Co. v. Conner

• Decision Date: 11 December 1909
• Citation: 123 S.W. 622,122 Tenn. 339
• Parties: J. W. KELLY & CO. et al. v. CONNER, Sheriff, et al. CONNER v. J. W. KELLY & CO. et al.
• Court: Tennessee Supreme Court

123 S.W. 622

122 Tenn. 339

J. W. KELLY & CO. et al. v. CONNER, Sheriff, et al.

CONNER v. J. W. KELLY & CO. et al.

Supreme Court of Tennessee.

December 11, 1909

Appeal from Chancery Court, Hamilton County; T. M. McConnell Chancellor.

Consolidated actions by J. W. Kelly & Co. and others against S. A. Conner and others and by John H. Conner against J. W. Kelly & Co. and others. From a decree granting insufficient relief complainants and defendants separately appeal. Bill dismissed for want of jurisdiction.

Williams & Lancaster, Lewis M. Coleman, Spears & Lynch, E. E. Wright John J. Vertrees, and F. Zimmerman, for complainants. Attorney General Cates (Joe V. Williams and N. L. Bachman, on the brief), for defendants Whittaker, and others.

SHIELDS J.

These consolidated causes were heard together in the chancery court of Hamilton county and in this court, and will be so determined.

Complainants in the first-styled cause are J. W. Kelly & Co., Wakeman Distilling Company, and Chattanooga Brewing Company, all corporations created and organized under the laws of Tennessee, having their domiciles and places of business in Chattanooga, Hamilton county, Tenn., where they owned and operated distilleries and a brewery, and were, previous to July 1, 1909, without question, lawfully engaged in the wholesaling of whiskies and beer.

The defendants are S. A. Conner, sheriff of Hamilton county, and Matt N. Whittaker, district attorney of the state of Tennessee for the Sixth judicial circuit, of which Hamilton county is a part, and the mayor and aldermen of the city of Chattanooga, which is a municipal corporation located in Hamilton county.

Complainants brought their bill July 6, 1909, in the chancery court of Hamilton county, for the purpose of enjoining Matt N. Whittaker, as district attorney, and S. A. Conner, as sheriff, from instituting and prosecuting criminal actions against them for sales of whiskies and beer that they might make as wholesale dealers at their places of business in the city of Chattanooga, Hamilton county, Tenn., in violation of the provisions of an act of the General Assembly of Tennessee, known as the "Sales Act" or "Four-Mile Law of 1909," being chapter 1, p. 3, of the published Acts of Tennessee of 1909, because, as they insist, that statute, when properly construed, does not apply to and prohibit sales of whiskies and beer by wholesale, and, further, that the statute was not enacted in the form and ceremony prescribed by the Constitution of Tennessee, and its provisions violate certain other provisions of the Constitutions of Tennessee and of the United States.

The statute sought to be construed and attacked--the "Four-Mile Law of 1909," or the "Sales Act"--was enacted January 20, 1909, and is in these words, viz.:

"An act to prohibit the sale of intoxicating liquors as a beverage near any school house, public or private, where a school is kept, whether the school be in session or not.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall not be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer as a beverage, within four miles of any school house, public or private, where a school is kept, whether the school be then in session or not, in this state, and that anyone violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction, shall be punished by fine for each offense of not less than $50.00 nor more than $500.00, and imprisonment for a period of not less than thirty days nor more than six months.

"Sec. 2. Be it further enacted, that the grand juries shall have and exercise inquisitorial powers in respect to violations of this act, and it shall be the duty of the circuit and criminal judges of the state to give the same in charge to them.

"Sec. 3. Be it further enacted that all laws in conflict with this act be, and the same are hereby repealed.

"Sec. 4. Be it further enacted, that this act shall take effect from and after July 1st, 1909, the public welfare requiring it."

Thereafter, February 4, 1909, the General Assembly enacted another statute, known as the "Manufacturers Act" (Acts 1909, p. 21, c. 10) which prohibited the manufacture in this state, for the purpose of sale, of intoxicating liquors, including all vinous, spirituous, and malt liquors, imposing for its violation fine and imprisonment, and which by special provision was effective from and after January 1, 1910. It contains no provision in relation to the sale of intoxicating liquors.

The General Assembly of Tennessee had, before this legislation, enacted several other statutes prohibiting sales of intoxicating beverages within four miles of schoolhouses, the exact provisions of which it is not necessary to here set forth. The first of these statutes was enacted in 1877, being chapter 23, p. 37, of the Acts of 1877, and known as the "Four-Mile Law of 1877." The next was enacted in 1887, being chapter 167, p. 293, of the published acts of that year, and known as the "Four-Mile Law of 1887." This last act was amended from time to time, so that sales of intoxicating beverages were prohibited in practically every part of Tennessee, except the cities of Memphis, Nashville, Chattanooga, and La Follette. Whether sales by wholesale or only by retail were prohibited by this legislation is not now necessary to be considered; these acts being only referred to that the objections made by complainants to the "Four-Mile Law of 1909" may be fully understood.

Complainants charge in their bills that the statute called in question (chapter 1, Acts 1909), when properly construed, does not prohibit sales made by wholesale dealers, but that, if otherwise construed, in its enactment and provisions, article 2, § 17, and article 1, § 8, of the Constitution of Tennessee and the "due process clause" and "commerce clause" of the federal Constitution were violated, and that it is for these reasons void. Complainants' contentions fully appear in their assignment of errors, which will be set out in a subsequent part of this opinion.

Complainants, for the purpose of showing a case within the jurisdiction of a court of equity, and to enable them to present the constitutional objections made to the provisions of the statute, further charge:

That, when the Sales Act was enacted, January 20, 1909, they were, and had been for many years previous thereto, engaged in the lawful manufacture and sale, as wholesale dealers, of whiskies and beer in the city of Chattanooga, where they had their distilleries and brewery, their warehouses and places of business, having customers in Tennessee and many other states of the Union, and one of them in Mexico and the Philippine Islands; that their plants represented investments of many thousands of dollars, and their businesses were established, valuable, and profitable, all of which would be greatly depreciated in value, and rendered almost worthless, if they were prohibited from making sales of their whiskies and beer in Chattanooga.

That J. W. Kelly & Co. had on hands January 20, 1909, stored in its own warehouses and that of the United States, 7,500 barrels of whisky, of the value of $700,000, and after deducting what it could sell by diligent efforts, about 1,500 barrels, and adding what it thereafter manufactured, it had in stock July 1, 1909, about 8,000 barrels; that the Wakeman Distilling Company had on hands January 20, 1909, 1,600 barrels of whisky, of the value of $135,000, of which it was only able to sell 500 barrels, leaving remaining July 1, 1909, 1,100 barrels, and that much of this whisky was raw, and required several years to age and mellow it, and make it marketable, and for that purpose it was in the bonded warehouse of the government. The Chattanooga Brewing Company, when the law was passed, had in stock 22,329 barrels of beer, afterwards manufactured 44,922 barrels, and sold 40,531 barrels, leaving on hands July 1, 1909, 26,000 barrels, of the value of $200,000, if it could there be sold.

That the value of this property consisted in its salability, and that, if complainants were prohibited from selling it, its value would be greatly depreciated and destroyed, and they would suffer irreparable loss and injury.

They further charge that there are numerous schoolhouses, where school is kept, in Hamilton county, and all other counties of the state, so situated that there is scarcely any territory which is not within four miles thereof, unless it be in some small, sparsely settled portions of the state.

They further charge that the defendant M. N. Whittaker, district attorney, has construed the Sales Act to prohibit all sales of intoxicating beverages, whether by wholesale or retail, in which construction the defendant S. A. Conner, sheriff, concurs, and that these officers have announced their intention to arrest and prosecute all persons making such sales in Hamilton county, and that they will do so if not prohibited by the injunctive process of the chancery court, notwithstanding, as complainants are advised and charge, the said "Sales Act" does not apply to sales made by wholesale, or for the purpose of exportation to other states and countries, and is also unconstitutional and void for the reasons heretofore stated.

They further charge:

"To do business, complainants must sell and make many sales of the liquors they have, and every sale will constitute an offense, if the said law be valid and forbid wholesale sales. The punishment imposed is both fine and imprisonment--a punishment extremely severe. To cease to sell will break up and destroy the business of complainants and cause their said valuable properties to become a loss on their hands. To sell will subject them...