Motlow v. State

Citation145 S.W. 177
Decision Date01 December 1912
CourtTennessee Supreme Court

Appeal from Circuit Court, Moore County; Ewin L. Davis, Judge.

Lem Motlow was convicted of unlawfully manufacturing intoxicating liquor for the purpose of sale, and he appeals. Affirmed.

Carter, Lamb & Lamb, Bean & Parks, and Frank P. Bond, for appellant. Attorney General Cates, for the State.


The indictment in the present case charges that Lem Motlow, on the 25th day of May, 1911, in Moore county, this state, unlawfully operated a whisky distillery, "and did then and there distill and manufacture spirituous, vinous, malt, and intoxicating liquors for the purpose of sale, contrary to the statute in such cases made and provided, and against the peace and dignity of the state." There was a motion to quash the indictment, but as the same questions were made on the trial we shall pass these without further notice.

The agreement as to the evidence was as follows:

That the defendant, Lem Motlow, on the 25th day of May, 1911, was the proprietor of the Jack Daniels distillery, located in Moore county, this state, and on that day manufactured 375 gallons of intoxicating liquors — that is to say, whisky 100 proof — for purposes of sale; "but," continues the agreement, "said whisky was not made for purposes of sale as a beverage within the state of Tennessee."

The defendant was convicted, and sentenced to pay a fine of $250, and to confinement in the county jail for a period of 90 days, and to pay the costs of the proceeding. He thereupon made a motion for new trial which was overruled, and he then appealed to this court.

The act on which the prosecution was based is chapter 10 of the Acts of 1909, which is as follows:

"An act to prohibit the manufacture in this state of intoxicating liquors for the purpose of sale.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall not hereafter be lawful for any person or persons to manufacture in this state, for purposes of sale, any intoxicating liquor, including all vinous, spirituous, or malt liquors, and that any one violating the provisions of this act shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine, for each offense, of not less than $250 nor more than $1,000 and imprisonment for a period of not less than ninety days nor more than twelve months: Provided, this section shall not be so construed as to prohibit the manufacture of alcohol of not less than 188 proof for chemical, pharmaceutical, medical, and bacteriological purposes.

"Sec. 2. Be it further enacted, that the grand juries of this state shall have and exercise inquisitorial power 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 January 1, 1910, the public welfare requiring it."

This act was passed over the veto of the Governor on February 4, 1909.

What the act in question has done is simply to put into a separate class the manufacturers of intoxicating liquors, and forbid them to make for sale any such liquors, except alcohol 188 proof.

Was the creation of such a class an arbitrary act, or is there any reason by which it can be justified? The principles on which the inquiry should be conducted are those laid down in a very recent opinion of the Supreme Court of the United States, in Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369: "(1) The equal protection clause of the fourteenth amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore it is purely arbitrary. (2) A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. (3) When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. (4) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." The same rules must apply in disposing of a question arising under article 1, § 8, of our Constitution of 1870, embracing the "law of the land" clause, because its provisions are in this regard, taken in connection with the first clause of section 8 of article 11, substantially the same as those contained in the second clause of the first section of the fourteenth amendment to the federal Constitution.

At the time the act was passed, the situation in Tennessee was this: Sundry statutes had been passed, known as "four-mile laws," which had made it unlawful to sell intoxicating liquors as a beverage anywhere in the state within four miles of a schoolhouse, whether the school was in session at the date of the sale or not. These acts made it unlawful to sell intoxicating liquors anywhere in this state as a beverage, since there was no point that was not within four miles of a schoolhouse. The last of these acts (chapter 1, Acts of 1909) was passed January 23, 1909, and went into effect July 1, 1909, and made the series of four-mile laws complete. Furthermore, by Acts of 1899, c. 161, it had been made unlawful to sell intoxicating liquors anywhere in Tennessee for any purpose without a license. No license could be issued which would give authority to violate the four-mile law. Therefor no license could be issued for the sale of intoxicating liquors at any point in Tennessee, unless for sale for nonbeverage purposes; that is, for medical, mechanical, chemical, or scientific purposes, and wine for sacramental use. These laws are reviewed in Kelly v. State, 123 Tenn. 516 (and see particularly page 531 et seq. and page 550), 132 S. W. 193. I am of the opinion, however, that the right to issue licenses for the latter purpose lasted only until July 1, 1909, because on February 5, 1909, chapters 13 and 14 of the Acts of that year were passed, which forbade the issuance of licenses to run for any longer date than July 1, 1909. After that date, as I think, no license for any purpose could be issued, and prohibition was complete in the state. My opinion is that these laws should all be construed together, or in pari materia, including Acts of 1899, c. 161. So construing them, it is evident, as I think, that the purpose of the Legislature was that no intoxicating liquors should be sold at all, except alcohol 188 proof, and this only for chemical, medical, pharmaceutical, and bacteriological purposes, for the sale of which no license was required; the statute giving by implication the authority to sell. I think the Legislature must be considered as having had in mind chapters 13 and 14 when chapter 10 at the same session was passed; these three acts, with chapter 1, Acts of 1909, being all of a piece, chapter 10 having been passed likewise on February 4, 1909, and chapters 13 and 14 on February 5th, but chapter 10 by its terms not taking effect until January 1, 1910. So that when chapter 10 went into effect no license could be issued for any purpose, and nothing in the form of intoxicating liquors could be sold, except alcohol 188 proof, and that only for the purposes mentioned in the act itself. Perhaps, however, considering Acts of 1899, c. 161, in connection with the act of 1885, construed in the Druggists' Cases, 85 Tenn. 449, 457, 3 S. W. 490, druggists may yet sell wine for sacramental purposes without any license other than a druggist's license.

However, the majority of the court are of the opinion that chapters 13 and 14 of the Acts of 1909 were not intended as a general withdrawal of the power to issue licenses except for sale of intoxicating liquors as a beverage, and that a license may still be issued, under which the holders may sell intoxicating liquors for medical, mechanical, chemical, scientific, and sacramental purposes, and for these purposes only. The majority are of the opinion that alcohol of 188 proof, referred to in chapter 10, Acts of 1909, is an intoxicating liquor (Marks v. State, 159 Ala. 71, 83, 48 South. 864, 133 Am. St. Rep. 20, and cases cited), included within the classes just mentioned, and not exclusive thereof.

Now, did chapter 10 have any reasonable tendency towards making effective the prohibition laws referred to? Or, to state the question differently, would breweries and distilleries operating in this state, producing thousands of gallons of beer and whisky and brandy every year, make it easier for those desiring to violate the prohibition laws to find the means of accomplishing that result? If these factories stopped, would it be more difficult and more expensive for persons desiring such beverages for sale to obtain them? There is only one possible answer to these questions, and that is so obvious that it is unnecessary to state it in terms. If it be true, then, that the producing of so much intoxicating liquor in the state would make it more difficult to maintain the prohibition laws, and the ceasing of the manufacture would tend to make it easier to maintain these laws, then there was ample ground for the classification. Moreover, it is a matter of judicial knowledge on the part of the court, arising out of the history of this class of litigation in the state, that the breweries actively encourage and foster the opening and maintaining of saloons to enable them to sell their product, and that distilleries have places where the product is...

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