State v. T.J. Mattox Cigar & Tobacco Co.

• Decision Date: 24 January 1918
• Docket Number: 3 Div. 324
• Citation: 77 So. 755,201 Ala. 229
• Parties: STATE v. T.J. MATTOX CIGAR & TOBACCO CO.
• Court: Alabama Supreme Court

77 So. 755

201 Ala. 229

STATE v. T.J. MATTOX CIGAR & TOBACCO CO.

3 Div. 324

Supreme Court of Alabama

January 24, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Injunction by the State against the T.J. Mattox Cigar & Tobacco Company. From an order dissolving the temporary injunction and dismissing the bill, the State appeals. Reversed and rendered.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

J. Lee Holloway, of Montgomery, for appellee.

This cause was submitted and considered under rule 46 (65 South vii), and the opinion of the court was delivered by Mr Justice THOMAS.

In this case injunction is sought by the solicitor of Montgomery county to abate, under the prohibition statutes, an unlawful drinking place. The bill avers, among other things, that the respondent operates in the city of Montgomery a soft drink stand, "which is a common nuisance or unlawful drinking place, because said respondent at said place sells, keeps for sale, or maintains said place for the drinking of a beverage known as 'Besto,' which beverage is a substitute or device for beer." The prayer is for an injunction to restrain respondent from selling or keeping for sale said beverage known as "Besto" and from maintaining a place for the drinking of said beverage.

After answer and proof, the judge of the circuit court decreed that said beverage was "a nonintoxicating and nonalcoholic drink within the meaning of the state statute, and therefore in selling this beverage the respondent did not make his place of business a public nuisance," and dissolved the temporary injunction and dismissed the bill.

The appeal is taken by the state and the Attorney General; the assignment of errors presenting for review this action of the trial court.

Respondent's insistence is that those portions of the prohibition act of 1915 (Acts 1915, § 1, p. 1, and section 2 1/2, p. 8) purporting to declare that "any other beverage which is the production of maltose or glucose, or in which maltose or glucose is a substantial ingredient," is a prohibited liquor or beverage, are offensive to section 45 of the Constitution.

We find no merit in this contention. There is but one subject embraced in the title of either of the two acts in question and that subject is clearly expressed. The matter in question is germane to such respective titles. Chief Justice McClellan declared the right of the Legislature, in the effort to promote temperance, to discourage the use or consumption of prohibited liquors and beverages, and to secure obedience to and prevent the evasion of the prohibition laws in connection with the prohibition of the manufacture, sale, or disposition of alcoholic, vinous, malt, fermented, or brewed, liquors or beverages, to enforce a like prohibition of certain other liquors or beverages affording opportunity for evasions of such laws. He said:

"It is common knowledge that most malt liquors are intoxicating and harmful when used excessively, and are capable of excessive use as a beverage. The sale of all such of course, the Legislature has the power to prohibit. But, if the prohibition should in terms go only to the sale of intoxicating malt liquors, there would be left open such opportunities for evasions of the law, and there would arise such difficulties of proof, as that the law could not be effectively executed; and the lawmakers having the undoubted power to prohibit and to prevent the sale of intoxicating malt liquors, and to enact to that end a law which can be executed so as to secure it, and finding that this cannot be accomplished without extending the prohibition to all malt liquors, whether intoxicating or not, such extension, necessary to prevent the sale of intoxicants, is as essentially the proper exercise of the police power as the inhibition with reference to intoxicants. Our prohibition statutes very generally have provisions which are merely intended to be ancillary to, and to prevent evasions of, or to avoid difficulties of proof in respect of, their main purpose, to prevent the sale of intoxicants." Feibelman v. State, 130 Ala. 122, 124, 125, 30 So. 384, 385.

In State ex rel. Black v. Southern Express Co., 75 So. 343, Mr. Justice McClellan pertinently observes:

"The traffic in intoxicants in this state has been prohibited, to the legislatively avowed end of promoting temperance and of preventing drunkenness. *** In addition, valid ancillary prohibitions and regulations, reasonably conceived to be in aid of the stated major purposes entertained by the lawmakers, have been enacted."

This declared right of the Legislature to reasonably prohibit the manufacture, sale, or other disposition of other liquors, whether intoxicating or not, in connection with the prohibited liquors, has been reaffirmed in Dinkins v. State, 149 Ala. 49, 43 So. 114; Lambie v. State, 151 Ala. 86, 91, 44 So. 51; Marks v. State, 159 Ala. 71, 80, 48 So. 864, 133 Am.St.Rep. 20; Ex parte Woodward, 181 Ala. 97, 106, 61 So. 295; State ex rel. Black v. Delaye, 193 Ala. 500, 519, 520, 68 So. 993, L.R.A.1915E, 640; Southern Express Co. v. Whittle, 194 Ala. 406, 422, 423, 69 So. 652, L.R.A.1916C, 278; State ex rel. Hugo L. Black v. Southern Express Co., 75 So. 343; L. & N.R.R. Co. v. State (App.) 76 So. 505, 512; Theatrical Club v. State, 74 So. 969; Mugler v. Kansas, 123 U.S. 623, 8 Sup.Ct. 273, 31 L.Ed. 205; Purity Extract Co. v. Lynch, 226 U.S. 192, 33 Sup.Ct. 44, 57 L.Ed. 184; Wilson v. New, 243 U.S. 332, 346, 37 Sup.Ct. 298, 61 L.Ed. 755, L.R.A.1917E, 938; James Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 Sup.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Butterfield v. United States, 241 F. 556, 154 C.C.A. 332; Southern Pacific v. Jensen, 244 U.S. 205, 217, 37 Sup.Ct. 524, 61 L.Ed. 1086. Such subsequent rulings indicate that the decision in Elder v. State, 162 Ala. 41, 50 So. 370, has not controlling effect as to the statute now under consideration.

The trial court rested the decision on the fact that the beverage known as "Besto" is "a nonintoxicating and nonalcoholic drink within the meaning of the statute," and thus overlooked the reasonable ancillary prohibitions and regulations of the statutes adopted in aid of the major purpose of the prohibition laws. State ex rel. Black v. Southern Express Co., supra; Southern Express Co. v. Whittle, supra; Feibelman v. State, supra.

Did, then, the beverage in question in fact fall within the reasonable prohibitions of the statute? Gen.Acts 1915, § 1, p. 1, and section 2 1/2, p. 8, and section 31, p. 31. The presumption in favor of the ruling of the lower court declared to obtain in Andrews v. Gray, 74 So. 62, has no application, where the testimony is taken before a commissioner appointed by the court, and not in open court, before the judge rendering the decision.

A deputy sheriff of the county testified that he bought of respondent a bottle of this beverage and drank the same; that it looked, tasted, and smelled like beer. On this phase of the evidence, and the bearing thereon of section 31, p. 31, of the Acts of 1915, defining the liquors and beverages the subject of the prohibition laws, including among those prohibited "any device or substitute for any of them," Judge Samford has aptly written:

"This was intended to prevent the keeping for sale and selling of beverages that looked like prohibited liquors, so that those persons who were trying to avoid and thwart the various laws for the promotion of temperance could not use the imitations as a fence, to hide and cover the sale of the real thing. Therefore a liquor that foams like beer, smells like beer, looks like beer, tastes like beer, and is put up in bottles like beer, and has a name that suggests a very popular and well-advertised beer, is a substitute or device." Dees v. State (App.) 75 So. 645.

In the instant case, though the evidence shows that the name, as well as the bottles in which the beverage was contained, was different from that used for beer, there was a similarity, in the respects indicated, between the beverage served at respondent's place and beer. Lambie v. State, supra.

Of the chemical analysis of this beverage Dr. Ross, state chemist, testified on direct examination that he made such an analysis, and obtained this result: Alcohol, 0.43 per cent.; reducing sugars, as maltose, 4.03 per cent.; total solid matter, 6.13 per cent.; mineral matter, 0.11 per cent.; phosphoric acid, 0.027 per cent.; albuminoid, 0.24 per cent.; that this beverage did not correspond with alcoholic or spirituous liquors, nor with rum, gin, or vinous liquors; that he did not consider it as beer; that, being carbonated, it was effervescent; that Besto in taste more resembled malt than other drinks, though he "would not consider it a good substitute for beer"; and that it was nonintoxicating. On cross-examination this witness testified:

That he could not say positively whether it was a brewed drink, "as it might have gone through a portion of the brewery process"; that it contained 0.43 per cent. of alcohol; and that, if allowed to stand in an open vessel it could increase (in alcohol), as germs from the air might cause

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