State v. Lamar

• Decision Date: 09 May 1912
• Parties: STATE v. LAMarch
• Court: Alabama Supreme Court

59 So. 473

178 Ala. 77

STATE v. LAMarch

Supreme Court of Alabama

May 9, 1912

Error to Court of Appeals.

Original proceedings in habeas corpus by Law Lamar, to secure his discharge from imprisonment under a warrant of arrest. There was a judgment of the Court of Appeals (59 So. 737) reversing a judgment of the city court discharging petitioner, and he brings error. Judgment of the Court of Appeals reversed, and accused discharged.

Reese &amp Reese, of Selma, for plaintiff in error.

R. C Brickell, Atty. Gen., W. L. Martin, Asst. Atty. Gen., and John R. Tyson, for the State.

SAYRE J.

Law Lamar was taken into custody on a warrant issued by a magistrate upon an affidavit, dated September 27, 1911 charging that said Lamar "did sell cotton seed meal containing 7 1/2 per cent. of ammonia, for fertilizing purposes, without having attached to the package containing the same the tax tag (Alabama tax tag) prepared by the Commissioner of Agriculture and Industries." On a proceeding by habeas corpus, the question being whether the affidavit charged any offense, the judge of the city court ordered the discharge of the accused. That judgment was reversed in the Court of Appeals, whence the case comes to this court by writ of error.

The Code of 1907 was first adopted by the act approved July 27, 1907 (Gen. Laws 1907, p. 499), and went into effect May 1, 1908. In the chapter given to Agriculture and Industries, provision is made for the analysis, registration, branding, tagging, and sale of fertilizers and fertilizer materials. The tags which are required to be used in such case are issued by the Commissioner, and their price is fixed by law. They are appropriately called "tax tags." By article 3 of the chapter, the sale of cotton seed meal "offered for sale as a fertilizer" is also regulated, and the observance of the regulations there made is enforced by a criminal statute. Code, § 6887. But the tags to be used in case of a sale of cotton seed meal in bags or packages are not furnished by the state. They imply only the seller's personal guaranty as to the ammonia content of the meal. They are not tax tags. By section 6881 it is declared that the sale, exchange, or offer for sale or exchange, of any fertilizer, which has not been tagged as provided by law, shall constitute a criminal offense, punishable by penalty, which may be widely variant from that denounced against violations of the law made for the regulation of the traffic in cotton seed meal as a fertilizer. And section 45, to be found in article 2 of the chapter wherein the sale of fertilizers is regulated, provides that "the term 'fertilizer material' used in this article shall not include common lime, land plaster, cotton seed meal, ashes, or common salt, not in combination." We take it to be a necessary consequence of this section that cotton seed meal is not a fertilizer, within the meaning of the article. This recital of the provisions of the Code makes it plain that, as for anything appearing in the Code, cotton seed meal, not in combination, does not fall within the evil denounced by section 6881. But the affidavit shows a sale of cotton seed meal for fertilizing purposes without having a tax tag--the Commissioner's tag--attached; and the only construction of which it is capable would refer it to that section, so that, if its meaning and effect were to be determined on the Code alone, the affidavit charged no offense.

On August 14, 1907, was approved an act making various amendments in the law concerning the manufacture and sale of fertilizers and fertilizer materials in this state. Gen. Acts 1907, p. 744. By section 15 of that act, section 392 of the Code of 1896 was amended in two respects: In the forepart of the section, the words "fertilizer materials" were substituted for "fertilizer or commercial fertilizer"; a provision was added which dealt with fillers or foreign and makeweight materials. As thus amended, the section passed into the printed Code of 1907 as section 45, this because the act adopting the Code directed that all acts of the then session of the Legislature of general nature, enacted on or after July 9, 1907, should be incorporated into the Code to be thereafter printed and proclaimed. But these acts acquired no sanction by their presence in the Code. Montgomery v. Wyche, 169 Ala. 181, 53 So. 786. However, the Code, after it had been printed, was adopted in its printed form by an act of August 26, 1909. By section 10 of the Code as adopted on the date last mentioned, with some specific exceptions not affecting the case at hand, all statutes of a public, general, and permanent nature, not included in the printed Code, were repealed. But it was not intended, of course, to repeal the many general laws of great importance to the state which had been enacted subsequent to the first adoption of the Code; and this reservation was expressed in section 2 of the act adopting the Code a second time, the effect of which was to save the act of November 22, 1907, along with all others in like case, notwithstanding its omission from the Code and the re-enactment of the repealing clause of section 10 thereof. Fulton v. State, 171 Ala. 572, 54 So. 688. So, without overlooking the history of some of the provisions of the Code, or working any change in the statutes, but for convenience only, we have thus far stated the case as depending upon the statute law as shown by the printed Code. Our proposition as to the failure of the affidavit to state a criminal offense, if referred to the Code alone, is not denied, but has been stated in order to make clear the necessity, under which the prosecution labors, of finding support for its contention elsewhere. And so it does look elsewhere, and claims to find support in section 5 of the act of November 22, 1907, which was passed too late for reproduction in the printed Code, and which was unaffected by the second adoption of the Code in August, 1909.

With considerable elaboration, this act of November 22, 1907, goes over and amends the law which had theretofore been stated in sections 49 and 50 of the Code (constituting article 3 of the chapter given to Agriculture and Industries), where the analysis, tagging, and sale of cotton seed meal were regulated. The provision for the seller's tags is renewed; but there is no requirement of tax tags, no requirement that the state shall furnish or fix the price of tags, nor any indication of a change from the policy which the state had previously declared and observed of providing a character of regulations for fertilizers, which could be nothing but fertilizers, different from those provided for cotton seed meal, which is of great use and value in widely different applications, unless all these things may be found in section 5, which reads: "That all cotton seed meal containing 7 1/2 per cent. of ammonia which is sold for fertilizing purposes must be registered as other brands of fertilizers under the fertilizer law." We may remark that...