Lovett v. State
| Citation | 30 Ala.App. 334,6 So.2d 437 |
| Decision Date | 16 December 1941 |
| Docket Number | 4 Div. 706. |
| Parties | LOVETT v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Jan. 13, 1942.
Appeal from Circuit Court, Houston County; D. C. Halstead Judge.
Certiorari denied by Supreme Court in Lovett v. State, 4 Div. 245, 6 So.2d 441.
L A. Farmer, of Dothan, for appellant.
Thos. S. Lawson, Atty. Gen., and Noble J Russell, Asst. Atty. Gen., for the State.
The proceeding below was to condemn 200 pints of liquor, allegedly being kept and used for illegal sale in Houston, a wet, County. The liquor was the property of the appellant and was stored at his place of business, a filling station and taxicab stand in Dothan, Alabama. There was also proof of recent sales and deliveries of liquors from this place of business.
The liquor had been purchased from a State store in the county and was duly stamped and labeled, with all taxes paid thereon, as required by law.
The important question for decision is the right and authority, vel non, of the State to seize and confiscate as contraband such liquor, when being stored and used as alleged; viz. for illegal sale.
It was uncontroverted that appellant had no license to sell or otherwise dispose of the liquor. In fact he could not have procured such a license, his business not being a hotel, restaurant, club or such enterprise as is authorized under the statute to sell liquor. Alabama Alcoholic Beverage Control Act, Sections 1, 13, 21, and 23, Title 29, Code 1940.
Any sale of liquor by appellant under such circumstances (without a license) was unauthorized and therefore a violation of the Alabama Alcoholic Beverage Control Act and subjected him to the penal provisions thereof.
To be specific, in so selling such liquor, he was guilty of violating the license regulation promulgated by the Alabama Alcoholic Beverage Control Board under authority of said act, which makes it unlawful for any person, firm, corporation, partnership or association of persons as such terms are defined in said act, who has not been licensed so to do under the appropriate provisions thereof, to sell, offer for sale or have in possession for sale, any liquor or malt or brewed beverages as those terms are therein defined.
The Legislature may empower appointed agencies and bureaus to make such reasonable rules and regulations as are necessary for the administration and enforcement of the provisions of the law they are to administer. Lum West et al. v. State, Ala.App., 6 So.2d 434; Parke et al. v. Bradley, State Treas., 204 Ala. 455, 86 So. 28; Skrmetta v. Alabama Oyster Commission, 232 Ala. 371, 168 So. 168. The Alabama Alcoholic Beverage Control Board was, by the terms of the act, vested with such authority. Act, supra, Gen. Acts, Extra Session 1936-1937, p. 49, Section 7(a), Code 1940, Tit. 29, § 6(a). And all such reasonable rules and regulations of the Alabama Alcoholic Beverage Control Board have the force and effect of law. Same Act, supra, p. 73, Sec. 36, Code 1940, Tit. 29, § 52. Likewise, the court will take judicial notice of such rules and regulations promulgated by the Board within the scope of its authority which have the same effect as law. Lum West et al. v. State, supra; 20 Am.Jur., Sec. 44, p. 67; Morris Adler & Co. v. J. E. Jones & Co., 208 Ala. 481, 94 So. 816; Lawrenceburg Roller Mills Co. v. Chas. A. Jones & Co., 204 Ala. 59, 85 So. 719.
No authority exists under the Alabama Alcoholic Beverage Control Act for the confiscation of liquor duly purchased from a State store. The commodity is contraband under the act only when said alcoholic beverages or products do not have "affixed to the package * * * the stamps, crowns or lids as provided by law", Sec. 49, Title 29, Code 1940; or when "found within this state in the possession of or on the premises of any person, firm, corporation or association of persons not having affixed thereto such mark of identification showing that said alcoholic beverages were sold or distributed by a state liquor store". Section 50, Title 29, Code 1940. In other words, only unstamped or unidentified liquors and beverages are subject to confiscation under the provisions of said act.
So, if the liquor in suit be subject to condemnation by the State, authority therefor must be under some other law.
The instant proceedings were drawn and transacted under the provisions of Article 11, Chapter 167, Code 1923, Section 4740 et seq., Code 1940, Title 29, Article 10, Section 209 et seq. From an order of condemnation, this appeal proceeded.
Section 4740, Code 1923 is: " Forfeiture and destruction of liquors, receptacles, etc.-Prohibited liquors and beverages kept, stored or deposited in any place in this state, for the purpose of sale or unlawful disposition or unlawful furnishing or distribution, and the vessels and receptacles in which such liquors are contained are declared to be contraband and are forfeited to the state when seized and may be condemned for destruction as hereinafter provided," etc.
The controlling question is whether the liquors in suit are prohibited liquors within the meaning of Section 4740 et seq.
It is the contention of appellant that these Code sections dealing with the confiscation of prohibited liquors have no application in a wet county to liquors duly purchased from a State store even though such liquors are being kept and used for an illegal purpose, i. e. for illegal sale or unlawful disposition. But we do not think so.
Unless Section 4740 et seq. (Code 1923) have such application in wet counties the State is without authority to confiscate such liquors when being illegally sold or disposed of therein.
Other legal questions aside, it is not conceivable that by the passage of the Alabama Alcoholic Beverage Control Act, providing (under prescribed conditions) for the legal sale of liquor in wet counties, there was any legislative purpose to sanctify for the bootleggers such commodities when illegally used-sold-by rendering the State legally impotent to confiscate such liquor when being possessed for and used under such circumstances. To thus consecrate in the citadels of the lawless their illegally used products would in no way contribute to good morals, temperance or the public welfare. And it should be remembered that the Legislature by specific verbiage pronounced that the Alabama Alcoholic Beverage Control Act was designed "to promote temperance and suppress the evils of intemperance," (Gen. Acts, Extra Session, 1936-1937, p. 40, Title of Act), and "for the protection of the public welfare, health, peace and morals of the people of the State," (Section 3, p. 43, said Act, Code 1940, Tit. 29, § 2). The primal legislative purpose of the act would obviously be defeated if, by abstruse and strained judicial interpretation, the conclusion could be reached that the State in attempting to strengthen the laws of temperance and good morals had been rendered powerless to confiscate the commodity the subject of such legislation, when used illegally, and which for years on end in this State has been denounced as contraband, when illegally possessed, sold or otherwise disposed of contrary to law.
Such is the rationale of our view, and there is correct legal authority to support it.
Section 4740, above, makes provision for the confiscation of "prohibited liquors". The appellant contends that the liquor, being in a wet county and having been purchased from a State store, cannot be so classified, citing, among others, the cases of Christian v. State, 29 Ala.App. 497, 198 So. 366, Walls v. State, 29 Ala.App. 466, 198 So. 151, certiorari denied 240 Ala. 148, 198, So. 153, and Harvey v. State, Ala. App., 3 So.2d 142, 143, wherein it was observed that
This pronouncement when wrenched from its judicial setting might perhaps warrant the construction attempted here by appellant but not so when each case is considered in its entirety. In these cases the court was, in each instance, dealing with a state of facts wherein the defendant's guilt of crime was sought to be established by the proof, alone, of possession in a wet county of liquor duly purchased from a State store. The holding, of course, in such cases was that the possession alone of State store liquor in a wet county not now (under the Alcoholic Beverage Control Act) being unlawful, it could not, under such circumstances, be construed as a "prohibited liquor" so as to subject the defendant to prosecution without proving (quoting from the Walls case, supra [29 Ala.App. 466, 198 So. 153]) "circumstantially or otherwise, the defendant's guilty connection with the liquor for the...
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