State v. Southern Express Co.

Decision Date19 April 1917
Docket Number6 Div. 244
Citation75 So. 343,200 Ala. 31
PartiesSTATE ex rel. BLACK v. SOUTHERN EXPRESS CO. et al.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Injunction by the State, on relation of Hugo L. Black, Solicitor against the Southern Express Company and others. From decree for defendants, plaintiff appeals. Reversed and remanded with directions.

The following is the Reed Amendment referred to in the opinion:

No letter, postal card, circular, newspaper, pamphlet, or publication of any kind containing any advertisement of spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind, or containing a solicitation of an order or orders for said liquors, or any of them, shall be deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier, when addressed or directed to any person, firm, corporation, or association, or other addressee, at any place or point in any state or territory of the United States at which it is by the law in force in the state or territory at that time unlawful to advertise or solicit orders for such liquors, or any of them, respectively.
If the publisher of any newspaper or other publication or the agent of such publisher, or if any dealer in such liquors or his agent, shall knowingly deposit or cause to be deposited or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than $1,000 or imprisoned not more than six months, or both; and for any subsequent offense shall be imprisoned not more than one year. Any person violating any provision of this section may be tried and punished, either in the district in which the unlawful matter or publication was mailed or to which it was carried by mail for delivery, according to direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed.
The Postmaster General is hereby authorized and directed to make public from time to time in suitable bulletins or public notices the names of states in which it is unlawful to advertise or solicit orders for such liquors.

Hugo L Black, of Birmingham, pro se.

Robert C. Alston, of Atlanta, Ga., and Tillman, Bradley & Morrow, of Birmingham, for appellee.

McCLELLAN J.

This is a bill for injunction to prevent certain acts or conduct by an interstate common carrier, an express company, relating to or concerning the subject of the prohibition or regulation of the use or consumption of intoxicating liquors. The party complainant is the state of Alabama, the relator being the solicitor of Jefferson county. The respondents are the Southern Express Company, a corporation, and two of its agents engaged in its service at Birmingham, Jefferson county, Ala. If the bill's averments are sufficient to justify or to require the injunctive relief sought thereby, the jurisdiction and power of the court of equity to grant and effect that relief is created and established by section 11 of the act approved September 25, 1915. Gen.Acts, 1915, p. 557. That section reads:

"Sec. 11. That when any violation of this act, or any law for the promotion of temperance is threatened, or shall have occurred, the doing of, or continuation or repetition of the unlawful act, or any of like kind by the offending party, may be prevented by writ of injunction out of a court of equity upon a bill filed in all respects as in cases of liquor nuisances and of violation of the law against advertising liquor; in like manner the writ of injunction may be employed to compel obedience to any rule or regulation prescribed by any such law."

The submission for the issuance of the writ was on the original bill and sworn answer. Code, § 4529. The injunction prayed was denied, and the state appeals.

The charges asserted in the bill and the acts or conduct sought to be controlled by the injunction prayed may be thus summarily stated:

"(1) That since September 25, 1915, the respondents received or had in their possession prohibited liquors received from Wray Liquor Company in quantities of more than one quart and in bottles or receptacles of the capacity of less than one quart.
"(2) That since March 1, 1915, the respondents have advertised the manufacture, sale, etc., of prohibited liquors or the person from whom or the place from which the same might be obtained, or have circulated price lists, order blanks, or other matter for the purpose of inducing or securing orders for prohibited liquors.
"(3) On information and belief, that the respondents now have in their possession such advertisements contained and inclosed in packages together with shipments of whisky, and are circulating such advertisements of prohibited liquors by delivering said packages of prohibited liquors.
"(4) That respondents have in their possession a package containing two quarts of whisky consigned to J.T. Levie, the order for which was solicited by reason of a price list or order blank previously received by said Levie in a package of whisky previously delivered to him by the Southern Express Company.
"(5) That respondents have in their possession a package containing spirituous, vinous, or malt liquors consigned to Leona Drake, the order for which was received because and on account of an advertisement she received through the United States mail from Markstein & Co.
"(6) That respondents have delivered to numerous persons liquors which have been ordered by them, and which orders have been solicited or received contrary to the statutes in such cases made and provided.
"(7) That the respondents delivered to Nick Emerson Davis whisky which was consigned to Jim Wilson without a genuine order therefor, and delivered to a woman whisky consigned to Ed Mixon, without a genuine order from said Mixon, and delivered to a negro woman whisky consigned to Tommy Mitchell without a genuine order from said Mitchell; and delivered to some person other than George Robinson whisky consigned to the said Robinson.
"(8) That certain liquor dealers doing business in foreign states have circulated in and around Birmingham, Ala., advertisements of liquors and received orders as a result thereof, and shipments of liquors on account of said orders have been delivered by respondents in Jefferson county, and that respondents now have in their possession shipments so ordered."

The defenses set forth in the sworn answer may be thus summarily stated:

"(1) That they did not at any time or place charged in the bill of complaint knowingly deliver or have in their possession any prohibited liquors nor any liquors in prohibited receptacles or bottles, nor was any such liquors or prohibited receptacles delivered or possessed by them with their consent, procurement, or connivance.
"(2) That they did not knowingly deliver or have in their possession any advertising matter, circulars, price lists, order blanks, etc., as charged in the bill, nor was the same delivered or possessed by them with their consent, connivance, or procurement.
"(3) That the Southern Express Company is a common carrier; that the laws of the state of Alabama recognize spirituous, vinous, and malt liquors in certain quantities as property, and as a legitimate article of commerce; that as such common carrier it is authorized and compelled both by the laws of Alabama and of the United States to carry and deliver the same as such commerce; that all the shipments complained of originated and were received at points outside of the state of Alabama, and were labeled, marked, sealed, and packed in conformity with and according to the laws of the United States, which latter laws prescribe the method and manner in which the same shall be carried between states; that said laws of the United States, as well as the laws of Alabama, prohibited the opening of said packages, and respondent had no lawful and reasonable means of ascertaining the contents of the packages delivered by it, and that there was nothing in the appearance of said packages to arouse the suspicion of respondents or put them on notice that prohibited liquors or advertising matter was being transported therein; that, federal Congress having taken jurisdiction over the subject-matter of shipments of liquors, the state of Alabama is thereby excluded from legislating on the same matter.
"(4) That, as far as the advertising matter complained of is concerned, said matter was received by said common carrier at a point outside of Alabama and was delivered in its original package to the consignee, and that the act of Congress known as the Webb-Kenyon Bill does not apply thereto.
"(5) That they have not circulated any advertising matter within the meaning of the law of the state of Alabama.
"(6) That shipments of intoxicating liquors for lawful use are protected by the commerce clause of the United States, and it is not claimed that said intoxicating liquors were shipped for the purpose of violating any law of the state of Alabama.
"(7) That the anti-advertising bill in so far as it applies to interstate shipments and delivery in original packages is unconstitutional and void.
"(8) That the said act of Congress known as the Webb-Kenyon Bill violates the federal Constitution and is unconstitutional and void.
"(9) That no crime has been committed by them, none threatened to be committed, and that no necessity is shown for the relief sought.
"(10) That the injunction, if granted in response to the several prayers of the bill, could not well be enforced because it could not be reasonably and legally obeyed."

All of the shipments referred to in the...

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