State v. Cumberland Club

Decision Date23 September 1916
CourtTennessee Supreme Court

Appeal from Criminal Court, Hamilton County; S.D. McReynolds, Judge.

Appeal from Criminal Court, Knox County; T. A. R. Nelson, Judge.

The Cumberland Club was indicted for receiving, keeping, and storing in its premises intoxicating liquors belonging to its members, and the Elks' Social Club was indicted for receiving and keeping intoxicating liquors for sale to its members. Demurrers sustained and indictments quashed, and the State appeals. Affirmed.

Frank M. Thompson, Atty. Gen., for the State.

Fred C Houk and John H. Frantz, for Cumberland Club.

W. H Cummings, Frank S. Carden, Geo. D. Lancaster, and Frank Spurlock, all of Chattanooga, for Elks' Social Club.


These cases were heard together, as presenting the question of the constitutionality of chapter 54, Acts 1915. In order to present the question it will be necessary to quote only the title and the first section of this act. They are as follows:

"An act to prohibit persons, clubs, associations or lodges from storing, keeping, distributing, or in any way disposing of liquor containing more than one-half of one per cent. alcohol, on the premises of any association, lodge, or club and providing penalty for the violation thereof."
"Section 1. That it shall not hereafter be lawful for any person, club, association or lodge directly or indirectly to keep or maintain by himself, itself, or by association with others, or to in any manner aid, abet or assist in maintaining any clubhouse, lodge or other place in which any liquor, containing more than one-half of one per cent. alcohol, is received or kept by the person in his own name or otherwise, or, by the association, lodge or club, for the purpose of use, gift, barter or sale as a beverage, or for distribution or division among the members of any club, association or lodge in this state, by any means whatsoever; and no person, club, association or lodge within this state shall use, barter, sell or give away, or assist in bartering, selling or giving away any liquor, containing more than one-half of one per cent. alcohol, so received or kept. Any person violating the provisions of this act shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50.00 nor more than $500.00 and imprisonment for a period of not less than thirty days nor more than six months."

The indictment against the Cumberland Club charges:

"That 'the Cumberland Club,' a bona fide social club, chartered, organized and existing under the laws of the state of Tennessee, for the exclusive purpose of social enjoyment and intercourse among its members, and having and owning its clubhouse in Knoxville, Knox county, Tenn., and also having several members, whose names are unknown to the grand jurors aforesaid, did, on the _____ day of June, 1915, unlawfully permit certain members of said club to receive, keep and store in its said clubhouse and premises intoxicating liquors, containing more than one-half of 1 per cent. alcohol, belonging to said members, and received, kept and stored by said club for the use and consumption of said members in and upon its said clubhouse and premises, and kept in individual or private lockers by said members, and not for the purpose of barter or sale as a beverage by said club or its members, in violation of chapter 54 of the Public Acts of the General Assembly of Tennessee for 1915, contrary to the statute and against the peace and dignity of the state."

The indictment against the Elks' Social Club has two counts. The first count charges:

"That the Elks' Social Club, a corporation, heretofore on the 3d day of June, 1915, in the county aforesaid, did unlawfully keep and maintain a certain clubhouse, where, and in which, liquors containing more than one-half of 1 per cent. of alcohol were received and kept by said club for the purpose of sale as a beverage to the individual members of such club, against the peace and dignity of the state."

The second count charges:

"That the Elks' Social Club, a corporation, heretofore on the 3d day of June, 1915, in the county aforesaid, did unlawfully sell liquors containing more than one-half of 1 per cent. of alcohol from a supply of such liquors received and kept by said club in a clubhouse maintained by it against the peace and dignity of the state."

A demurrer was filed to each of these indictments, and sustained. Thereupon an appeal was prayed in each case to this court; the first case from the criminal court of Knox county, and the second from the criminal court of Hamilton county.

Many points were made in the demurrer, but we shall consider only two of them. The first of these points is based upon the following found in the journal of the Senate: It appears from the journal that Senate Bill No. 763, having the same caption as House Bill No. 797, had already passed its third and final reading, and a motion to reconsider had gone to the table. Thereafter the senate reconsidered its action and took from the table the motion to reconsider, contrary to its rules, and over the objection of a member of the Senate, and substituted the House Bill for the Senate Bill, and passed it. It appears from the rules of the Senate that when a motion to reconsider has gone to the table no motion to reconsider shall be in order. It also appears from a resolution of the Senate construing the rules that after a motion to reconsider has gone to the table no further action can be taken by the Senate, unless a motion is entered on the journal for reconsideration by a member who votes on the losing side.

So far as the matter of substitution is concerned the practice is well recognized in several of our cases, as expressed in the syllabus to Archibald v. Clark, 112 Tenn. 532, 82 S.W. 310, viz.:

"Where the Senate Bill and the House Bill are the same in tenor and substance in their caption and body, and the House Bill duly passed by the House is transmitted to the Senate after the Senate Bill had duly passed its two readings, and thereupon the House Bill is substituted for the Senate Bill and read and passed in the Senate, the law is constitutionally enacted, and the constitutional requirements (art. 2, § 18) that a bill shall be read and passed in each house on three separate days is complied with."

To the same effect: Webb v. Carter, 129 Tenn. 263, 165 S.W. 426; State ex rel. v. Persica, 130 Tenn. 68, 168 S.W. 1056; Tennessee Coal, Iron & R. Co. v. Hooper, 131 Tenn. 616, 175 S.W. 1146; Heiskell v. Knox County, 132 Tenn. 187, 188, 177 S.W. 483.

So far as concerns the violation of its own rules by the Senate, this cannot furnish a basis for the court's annulment of an act. The Senate has the right, under the Constitution, to make its own rules (Const. art. 2, § 12), and it must be the judge of those rules. All the court can do is to ascertain whether the Constitution has been complied with. If this has been done, we cannot look further. The same question has arisen in other states, and has been decided in the same way. Sweitzer v. Territory of Oklahoma, 5 Okl. 299, 300, 47 P. 1094; McDonald v. State, 80 Wis. 411, 412, 50 N.W. 185; In re Ryan, 80 Wis. 414, 50 N.W. 187; Railroad Co. v. Gill, 54 Ark. 105, 106, 15 S.W. 18, 11 L. R. A. 452. To the same effect: United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321. Mr. Lewis states the proposition in the following language:

"It is held that an act cannot be declared invalid for failure of the Legislature, or of either house, to observe its own rules, and that the court will not inquire whether such rules have been observed in the passage of an act." Lewis' Sutherland Statutory Construction (2d Ed.) vol. 1, § 76, p. 126.

The next point is that the act in question violates article 2, § 17, of our Constitution of 1870. That section reads, so far as is necessary to be quoted:

"No bill shall become a law which embraces more than one subject, that subject to be expressed in the title."

This section has given rise to a very great number of cases. Those up to 90 Tenn. are collected in Hardaway v. Lilly (Ch. App. 1898) 48 S.W. 712. Those in 90 Tenn. to 116 Tenn. inclusive, are catalogued in Malone v. Williams, 118 Tenn. 438, 103 S.W. 798, 121 Am. St. Rep. 1002. The cases published after 116 Tenn. up to 129 Tenn. are set out in Palmer v. Express Co., 129 Tenn. 116, 153, 154, 165 S.W. 236. The cases since the publication of that decision are State ex rel. v. Persica, 130 Tenn. 48, 168 S.W. 1056; Bird v. State, 131 Tenn. 518, 175 S.W. 554; Todtenhausen v. Knox County, 132 Tenn. 169, 177 S.W. 487; Hamilton National Bank v. Amster, 134 Tenn. 537, 184 S.W. 5; Wilson v. Wilson, 134 Tenn. 697, 185 S.W. 718.

We have re-examined all of these authorities in considering the present controversy, but only a few of them are applicable to the case as it is now before us.

The question is whether the body of the act contains any subject not expressed in the title. Obviously, in order to solve this matter we must determine the meaning of the title; also the meaning of the body of the act and compare one with the other.

The legislative intent is to be ascertained from the statute itself in connection with other statutes on the same subject and not merely from a strict and accurate definition of the words alone. Kelly v. State, 123 Tenn. 516, 132 S.W. 193. A valuable review of our legislation upon the subject of intoxicating liquors appears in the case just cited. 123 Tenn. 531 et seq., and page 550, 132 S.W. 193. See, also, Motlow v. State, 125 Tenn. 560, 561, 145 S.W. 177. It is unnecessary to restate what appears on this subject in the cases cited....

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