Southern Express Co. v. State

• Decision Date: 30 June 1914
• Docket Number: 733
• Citation: 188 Ala. 454,66 So. 115
• Parties: SOUTHERN EXPRESS CO. v. STATE.
• Court: Alabama Supreme Court

66 So. 115

188 Ala. 454

SOUTHERN EXPRESS CO. v. STATE.

No. 733

Supreme Court of Alabama

June 30, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Suit by the State, by its solicitor, against the Southern Express Company to enjoin the maintenance of a whisky nuisance. From a decree overruling demurrers to the bill, and a motion to dissolve a temporary injunction, defendant appeals. Reversed rendered, and remanded.

The bill alleges in effect that the Southern Express Company is a common carrier in and through Morgan county, Ala., doing an inter and intra state business, and in Decatur and other points in said county it maintains depots, warehouses, or storage places where goods received by it destined for Decatur are kept or stored until they are delivered to consignees, and that it keeps in said depots, warehouses, or storage places prohibited liquors for distribution or delivery contrary to the laws of the state; that it has frequently received at such warehouse or storage place whisky to be delivered to John Milligan and Ellis Wright in Morgan county, Ala., and that such shipments have been received in large quantities and at frequent intervals, and that said liquors are kept and stored in such warehouses in large quantities and at frequent intervals to be delivered to individuals for illegal purposes, and that it has maintained a common nuisance or liquor nuisance in violation of law. It is then alleged that it is not a druggist, and does not keep a drug store or maintain a drug store at the above-mentioned storehouses or warehouses, and that the buildings above mentioned are not used exclusively for warehouses. Answering the bill, the express company admitted that it was a common carrier in and through Morgan county, and that it maintained depots and warehouses as charged in the bill at Decatur where goods received by it for transportation or delivery to persons in Morgan county are stored and kept in pursuance of the contract of transportation. That it is a common carrier engaged in intra and inter state transportation, and under its duty as such is bound to receive and transport shipment of liquors from points without the state of Alabama to points within the state, but that these liquors were not intended to be received, possessed, sold, or otherwise used in violation of law so far as this respondent is advised, and it denies that it has or keeps on hand prohibited liquors or stores prohibited liquors in Morgan county, or that it is maintaining a common or liquor nuisance in violation of the law. Then follows a detailed statement of the character of the shipments made to the persons named in the bill, and the conferences held between this corporation and the representatives of the state of Alabama as to the shipment right, it being alleged that the shipment to Milligan had been delivered before this corporation was informed that the shipment was for illegal purposes. The answer admits that the corporation is not a druggist and does not keep a drug store at the places mentioned in the bill. The bill then sets up the interstate commerce regulation and the interstate commerce clause of the Constitution, and that the bill seeks an injunction against the lawful and orderly conduct of lawful interstate commerce, and that the Webb bill does not confer upon the agent of the state of Alabama, nor upon the state itself the power contended for in the bill, and that the said bill known as the Webb bill, or as the Webb-Kenyon bill, is unconstitutional and void, as violative of article 1, section 8, article 4, section 2, and of the Fourteenth amendment of the Constitution of the United States, and because it undertakes to subject this defendant to loss of property and property rights because some person other than this defendant entertains an intent to violate the laws of the state, to which said shipment was destined, and because it attempts to give extraterritorial effect to the laws of the state, and to enable that state to annul and defeat contracts made without the state of Alabama and to deprive this defendant of its property rights to carry such shipments as interstate commerce.

Robert C. Alston, of Atlanta, Ga., and Eyster & Eyster, of New Decatur, for appellant.

R.C Brickell, Atty. Gen., T.H. Seay, Asst. Atty. Gen., and Melvin Hutson, of Decatur, for the State.

DE GRAFFENRIED, J.

The Carmichael bill (Acts Sp.Sess.1909, pp. 8-13) and the Fuller bill (Acts Sp.Sess. 1909, pp. 63-96) are expressive of the law of this state on the subject of intoxicating liquors and beverages, except in so far as their provisions have been expressly or impliedly repealed by the Parks bill (Gen. Acts 1911, pp. 26-31) and the Smith bill (Gen. Acts 1911, pp 249-288). Southern Express Co. v. I. Brickman Co., 66 So. 954, present term; State ex rel. Cramton v. City of Montgomery, 59 So. 294; Western Railway v. Capital Brewing Co., 59 So. 52; Hauser v. State, 6 Ala.App. 31, 60 So. 549.

The Fuller bill prohibits intrastate shipments of intoxicating liquors and beverages, except when such shipments are made for certain recognized legal purposes, and the provisions of the Fuller bill are now operative as to such shipments in all parts of the state except those embraced within the territory in "wet towns or cities." Southern Express Co. v. I. Brickman Co., supra. The Fuller bill does not, however, prohibit or attempt to prohibit, the transportation of intoxicating liquors or beverages from some other state or territory into the state of Alabama. Section 24, Fuller bill, pp. 86, 87, Acts Sp.Sess.1909; Southern Express Co. v. I. Brickman Co., supra.

The Legislature, in adopting the Fuller bill, recognized that when an article is delivered to a common carrier in one state, for transportation to and delivery in another state, such article is--so far as the question now under consideration is concerned--from its receipt by the common carrier until its orderly delivery to the consignee, within the sole jurisdiction of the federal government, and that it does not come within the jurisdiction of the state to which it is shipped until, in due course of business, it is delivered to the consignee.

(2) Since the adoption of the Fuller bill the Congress of the United States has adopted what is familiarly known as the "Webb Law." Act March 1, 1913, c. 90, 37 Stat. 699. This bill was passed, over the veto of the President, in March, 1913, and is in the following language:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the shipment or transportation in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented or other intoxicating liquor of any kind, including beer, ale, or wine, from one state, territory, or district of the United States or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, directly or indirectly or in any manner connected with the transaction, to be received, possessed, or kept, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, enacted in the exercise of the police powers of such state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited; and any and all contracts pertaining to such transactions are hereby declared to be null and void, and no suit or action shall be maintained in any court of the United States upon any such contract or contracts, or for the enforcement or protection of any alleged right based upon or growing out of such contract or contracts, or for the protection in any manner whatsoever, of such prohibited transactions."

The above act, by its terms, does not prohibit the transportation of intoxicating liquor from one state into another state except upon the contingency that the liquor is to be received, possessed, or kept, or in some way used in a manner prohibited by the laws of the state into which such liquor is to be, or is in fact, imported. The above act, by its terms, divests intoxicating liquor of its "interstate character," and withdraws from it "interstate protection" at the hands of the federal government only when it is shipped from one state into another state for purposes which, under a valid statute of the state into which it is shipped, are illegal in the state into which it is shipped. In other words, under the terms of the above quoted act, intoxicating liquor, as an article of interstate commerce, is not an outlaw. It is however, as such an article, under certain conditions, an outlaw.

(3) Prior to the passage of the act of Congress approved August 8, 1890, c. 728, 26 Stat. 313 (U.S.Comp.St.1901, p. 3177), entitled "An act to limit the effect of the regulations of commerce between the several states and foreign countries," a sale, in the original package in which the article was shipped, by the person who imported the article from one state into another state, was an incident of interstate commerce, and the state into which the article was imported could not prohibit such sale. Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 Sup.Ct. 592, 30 L.Ed. 694; Leisy v. Hardin, 135 U.S. 100, 10 Sup.Ct. 681, 34 L.Ed. 128.

The above doctrine grew out of the fact that the states, in adopting the Constitution of the United States, vested in C...