Perry v. Southern Express Co.

• Decision Date: 17 April 1919
• Docket Number: 7 Div. 976
• Parties: PERRY v. SOUTHERN EXPRESS CO.
• Court: Alabama Supreme Court

81 So. 619

202 Ala. 663

PERRY v. SOUTHERN EXPRESS CO.

7 Div. 976

Supreme Court of Alabama

April 17, 1919

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Action by Laura Perry against the Southern Express Company. Judgment for defendant, and plaintiff appeals. Affirmed.

L.B Rainey, of Gadsden, for appellant.

Alto V Lee, of Gadsden, for appellee.

THOMAS J.

Demurrer being sustained to counts 1 to 5, inclusive, because of such adverse ruling, a nonsuit with a bill of exceptions was taken.

In the act of January 23, 1915, and section 8 thereof, provision is made for suit at law for all damages actually sustained, and for exemplary damages, by a wife, child, parent, or other person who shall be injured in person, or property or means of support by any intoxicated person, or in consequence of the intoxication of any person. The right of action is "against any person who shall be selling, or giving or otherwise disposing of to another [such person] contrary to the provisions of law, any liquors or beverages, cause [causing] the intoxication of such person. ***" Gen.Acts 1915, § 8, p. 10.

Was then, the delivery of the liquors in question to plaintiff's minor son as charged contrary to the provisions of the law? It is provided by an act "to further promote temperance and suppress the evils of intemperance," etc., "that, it shall be unlawful for any railroad company, express company, or other common carrier, or any person, agent, employé thereof, or any other person, to deliver to any minor in this state, any of the liquors mentioned in section 1 of this act, that may be brought into this state from any point or places mentioned in section 1 of this act." Gen.Acts 1915, § 10, pp. 39, 43. The prohibited liquors mentioned in section 1 of said act are spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind; and it is made unlawful for any railroad or express company, or other common carrier, or any officer agent or employé thereof, to transport into, or to deliver in this state in any manner, or by any means whatsoever, said liquors, when intended to be received, possessed, sold, or in any manner used, either in the original package, or otherwise, in violation of law. Gen.Acts 1915, § 1, p. 39; State v. T.J. Mattox Cigar & Tob. Co., 77 So. 755; Feibelman v. State, 130 Ala. 122, 30 So. 384; State ex rel. Black v. Sou. Exp. Co., 75 So. 343.

The several counts of the complaint allege that liquors were delivered to the minor contrary to law, respectively, as spirituous liquors (count 1); a package of intoxicating liquors (counts 2 and 4); prohibited liquors (count 3); and whisky which caused the intoxication of said minor (count 5). By such general averment, permissible in complaints, it is asserted that the liquors, alleged in the several counts to have been delivered contrary to law to said minor, were prohibited liquors within the definition of the statute.

The right of action given in section 8 of the act of 1915 (page 10) "against any person" so offending included express companies and other common carriers. Gen. Acts 1915, p. 43, § 10; Words and Phrases, vol. 1, p. 978, "Carriers"; Code 1907, § 1, p. 217; Bailey v. State, 159 Ala. 4, 48 So. 791, 17 Ann.Cas. 623; State v. Turley, 142 Mo. 403, 410, 44 S.W. 267; State v. Hulder, 78 Minn. 524, 526, 81 N.W. 532.

The Legislature is vested with authority, under the police power (Const. § 44), to regulate the internal affairs of this state, embracing the whole system of internal regulation, to preserve order, legislate for public welfare, and, to that end, to suppress any and all practices tending to corrupt the public morals. Cooley's Const.Lim. (7th Ed.) 829 et seq.; Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302; Beer Co. v. Massachusetts, 97 U.S. 25, 33, 24 L.Ed. 989; Amer. Union Tel. Co. v. W.U. Tel. Co., 67 Ala. 26; Feibelman v. State, supra; Const. Alabama, § 104 (2); State ex rel. Black v. Sou. Exp. Co., supra; State v. T.J. Mattox Cigar & Tob. Co., supra; Standard Chem. & Oil Co. v. City of Troy, 77 So. 383, 384, 385; L.R.A. 1918C, 522; Purity Ext. Co. v. Lynch, 226 U.S. 192, 33 Sup.Ct. 44, 57 L.Ed. 184; Clark Dist. Co. v. West. Md. Ry. Co., 242 U.S. 311, 37 Sup.Ct. 180, 61 L.Ed. 326, L.R.A. 1917B, 1218, Ann.Cas.1917B, 845.

In State ex rel. Black v. Sou. Exp. Co., 75 So. 343, 345, 346, this court disposed of the several grounds of demurrer directed against the complaint as to the same being interstate shipments and deliveries of prohibited liquors by the Southern Express Company. The state statutes were construed in relation to the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699 [U.S.Comp.St. § 8739]) as follows:

"All of the shipments referred to in the pleadings originated outside of the state of Alabama, and were consigned for delivery at points in Alabama. The traffic in intoxicants in this state has been prohibited, to the legislatively avowed end of promoting temperance and of preventing drunkenness. Sou. Ex. Co. v. Whittle, 194 Ala. 406, 69 So. 652, 675-678, L.R.A. 1916C, 278. In addition, valid ancillary prohibitions and regulations reasonably conceived to be in aid of the stated major purposes entertained by the lawmakers, have been enacted. Sou. Ex. Co. v. Whittle, supra; Purity Ex. Co. v. Lynch, 226 U.S. 192, 33 Sup.Ct. 44, 57 L.Ed. 184; Feibelman v. State, 130 Ala. 122, 30 So. 384; Marks v. State, 159 Ala. 71, 80, 48 So. 864, 133 Am.St.Rep. 20. Many of the laws of Alabama token and validly effectuate a purpose to avail of the opportunity afforded the state by the federal Webb-Kenyon Act, to promote temperance and to prevent drunkenness. Sou. Ex. Co. v. State, 188 Ala. 454, 66 So. 115; Sou. Ex. Co. v. Whittle, supra. Through the recent decision delivered by the Supreme Court of the United States, in response to the appeals of the James Clark Distilling Company against the railway company, the express company and the state of West Virginia, the constitutional validity of the Webb-Kenyon Act was broadly, completely affirmed. 242 U.S. 317, 37 Sup.Ct. 180, 61 L.Ed. 326 [L.R.A. 1917B, 1218, Ann.Cas. 1917B, 845]. In determining its validity Chief Justice White, speaking for the court, said: 'It is true the regulation which the Webb-Kenyon Act contains permits state prohibitions to apply to movements of liquor from one state into another, but the will which causes the prohibitions to be applicable is that of Congress, since the application of state prohibitions would cease the instant the act of Congress ceased to apply.' (Italics supplied.) In eliminating from consideration 'the leading state case cited,' Van Winkle v. State, 27 Del. (4 Boyce) 578, 91 A. 385, Ann.Cas. 1916D, 104, the court said: '*** It (the Van Winkle Case) necessarily rested upon an entire misconception of the text of the Webb-Kenyon Act, because that act did not simply forbid the introduction of liquor into a state for a prohibited use, but took the protection of interstate commerce away from all receipt and possession of liquor prohibited by state law.'

"The appeal in Sou. Ex. Co. v. Whittle, 194 Ala. 406, 69 So. 652, L.R.A. 1916C, 278, evoked from this court a decision justifying the carrier in its refusal to receive at Pensacola, Fla., for transportation to and delivery at Ramer, Ala., a shipment of whisky that exceeded in amount the quantity of whisky a person might, under the laws of Alabama, receive during the prescribed period, or have in his possession in Alabama, at one time, for personal use only. The theory upon which the decision in the Whittle Case proceeded was that an interstate carrier to which a shipment of prohibited liquors was tendered outside of the state, to be

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