Southern Express Co. v. Whittle

• Citation: 69 So. 652,194 Ala. 406
• Decision Date: 17 June 1915
• Docket Number: 169
• Parties: SOUTHERN EXPRESS CO. v. WHITTLE.
• Court: Supreme Court of Alabama

69 So. 652

194 Ala. 406

SOUTHERN EXPRESS CO. v. WHITTLE.

No. 169

Supreme Court of Alabama

June 17, 1915

Rehearing Denied July 2, 1915

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Suit by J.E. Whittle against the Southern Express Company. From a decree granting relief, defendant appeals. Reversed and rendered, dismissing the bill.

William L. Martin, Atty. Gen. (Samuel D. Weakley, of Birmingham, and Lindsay Rogers, of counsel), for appellant.

Weil Stakely & Vardaman, of Montgomery, and Lawrence Maxwell, of Cincinnati, Ohio, for appellee.

McCLELLAN J.

The complainant, Whittle, filed this bill against the Southern Express Company to compel it to receive at and transport from Pensacola, Fla., to Ramer, Ala., a shipment of intoxicating liquors, viz., whisky, consisting of six quarts. Whittle was and is engaged in the liquor business in Pensacola, and having received an order, accompanied by the requisite cash price, from Fletcher Farmer, who resides at Ramer, Ala., and who was one of Whittle's customers, for the six quarts of whisky mentioned, tendered the shipment to the common carrier at Pensacola, Fla., for transportation to the consignee at Ramer, Ala. The carrier refused to accept the shipment of six quarts of whisky, assigning as the only reason for its refusal thereof that the law of Alabama forbade the carrier's transportation and delivery to one consignee at a point in "dry territory" in the state of Alabama of more than one quart of whisky in any four consecutive weeks, even though the shipment is tendered in another state for transportation and delivery to a consignee in "dry territory" in the state of Alabama. Ramer, where the carrier has an office, is in "dry territory" in the state of Alabama. It is conceded, as upon the averments of the bill, that the shipment of whisky, tendered to the carrier as stated, was only intended for the personal use of Farmer (consignee), and for the use of his family, and not otherwise. The carrier's refusal was based upon an enactment commonly called the "Bonner Anti-Shipping Bill," which became effective in Alabama on February 8 1915, entitled, "An act to further promote temperance and suppress the evils of intemperance, and to restrict the consumption of spirituous, vinous, malted, fermented, or other intoxicating liquors in this state. ***" The following presently pertinent sections of that law may be appropriately set out at this point:

"Section 1. That it shall be unlawful for any railroad company, express company, or other common carrier, or any officer, agent or employé of any of them, or any other person to ship or to transport into, or to deliver in this state in any manner, or by any means whatsoever, any spirituous vinous, malted, fermented or other intoxicating liquors of any kind from any other state, territory or district of the United States, or place noncontiguous to, but subject to the jurisdiction of the United States, or from any foreign country, to any person, firm or corporation within the territory of this state, when the said spirituous, vinous, malted, fermented or other intoxicating liquors, or any of them, are intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package, or otherwise, in violation of any law of this state now in force, or in violation of any law that may be hereafter enacted in this state, or take effect therein."

"Sec. 4. That it shall be unlawful for any person, firm or corporation to accept from any railroad company, express company, or other common carrier, or any officer, agent or employé of any of them, or from any other person any delivery of the liquors mentioned in section 1 of this act, or any of them, when transported into this state, or delivered in this state in any manner, or by any means whatsoever from the points or places mentioned in section 1 of this act, where the said person, firm or corporation so accepting such delivery intends to receive, possess, or sell, or in any manner use either in original package or otherwise, the said liquors, or any of them, in violation of any law of this state now in force, or of this act or of any law that may be hereafter enacted in this state or take effect therein."

"Sec. 12. That it shall be unlawful for any person, firm or corporation, (1) to receive or accept delivery of, or to possess or to have in possession at any one time whether in one or more places, and whether in original packages or otherwise, more than one-half gallon of spirituous liquors, or more than two gallons of vinous liquors, or more than five gallons of malted liquors, when in kegs, or more than sixty pints when in bottles, or more than one gallon of any other intoxicating or fermented liquors beyond those thus enumerated; or (2) to receive, accept delivery of, possess, or have in possession more than one gallon of spirituous liquors, or four gallons of vinous liquors, or more than ten gallons of malted liquors, including beer and ale, when in kegs, or one hundred and twenty pints in bottles, or more than two gallons of any other fermented or intoxicating liquors beyond those thus enumerated, within any four consecutive weeks, whether in one or more places, but this section shall not apply to the possession of wine or cordial made from grapes or other fruit grown and raised by the person making the same for his own domestic use, when such person keeps such wine or cordial for his own domestic use on his own premises; but this section shall apply upon its enactment into law to such receipt, or acceptance of deliveries, or possession of such liquors respectively, occurring at any place or locality or within any territory in this state, where and within which it shall then be unlawful to sell, keep for sale, or otherwise dispose of said liquors, and it shall become applicable in respect to such receipt or acceptance of deliveries or possession of such liquors occurring at other places or localities, and within other territory in this state when and as soon as it shall become unlawful to sell, keep for sale, or otherwise dispose of such liquors at such places or localities or within such territory; this section shall not affect or modify any existing law or any law enacted at this session of the Legislature in so far as it regulates the sale or keeping for sale of alcohol, or wine for a defined purpose, by wholesale or retail druggists.

"Sec. 13. That any of the following facts shall constitute prima facie evidence that the liquors mentioned in the subdivisions of this section, respectively, are kept, or had in possession for sale, contrary to law, or for other unlawful disposition thereof, to wit: (1) The possession of more than one-half gallon of spirituous liquors at any one time, whether in one or more places, or (2) the possession of more than two gallons of vinous liquors at any one time whether in one or more places. (3) The possession of more than five gallons of malted liquors, when in kegs, or more than sixty pints in bottles, at any one time, whether in one or more places. (4) The delivery to a person, firm or corporation, or any officer, agent or servant of any of them, of more than one gallon of spirituous liquors, or more than four gallons of vinous liquors, or of more than ten gallons of malted or fermented liquors including beer and ale, when in kegs or more than one hundred and twenty pints in bottles, within any four consecutive weeks, whether in one or more places. (5) The possession of more than two gallons of any

intoxicating liquors other than those enumerated in the preceding subdivisions of this section, whether in one or more places; but this section shall not apply to the possession of wine or cordials made from grapes or other fruit grown and raised by the person making the same for his own domestic use, when such person keeps said wine or cordial for his own domestic use on his own premises, nor to alcohol or wine authorized by law to be sold by druggists for defined purposes. This section shall not repeal or modify any other statute of the state declaring what shall constitute the presumption of or prima facie evidence of guilt, of the violation of any law of the state for the promotion of temperance or for the suppression of the evils of intemperance, and this section is in addition to and supplemental to other statutes declaring such presumption or declaring such prima facie evidence of guilt. But this section shall apply upon its enactment into law to all possessions and deliveries of liquors as hereinabove stated when occurring at any place or localities and within any territory of this state, where and within which it shall then be unlawful to sell, keep for sale, or otherwise dispose of said liquors, and it shall become applicable to such possessions and deliveries at other places and localities, and within other territory in this state, when and as soon as it shall become unlawful to sell, keep for sale, or otherwise dispose of such liquors at such place, or localities or within such territory."

"Sec. 19. That this act shall be construed in harmony with all statutes of the United States relating to the transportation of the liquors mentioned in section i of this act into this state from points or places outside of the state mentioned in section 1 of this act, and other federal statutes bearing upon interstate shipments of such liquors."

"Sec. 22. That, in all prosecutions under this act for unlawful shipments of liquors mentioned in section 1 of this act into this state, the offense shall be held to have been committed in any county of the state through which or into which said liquors have been carried or transported, or in which they have been unloaded, or to which they have been conveyed

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