Toole v. State

• Decision Date: 16 December 1889
• Citation: 7 So. 42,88 Ala. 158
• Parties: TOOLE v. STATE.
• Court: Alabama Supreme Court

7 So. 42

88 Ala. 158

TOOLE v. STATE.

Supreme Court of Alabama

December 16, 1889

Appeal from city court of Anniston; W. F. JOHNSTON, Judge.

The indictment in this case was found in April, 1889, and charged that the defendant, Harry Toole, "did sell spirituous vinous, or malt liquors without a license, and contrary to law." On the trial it appeared that the prosecution was founded on an alleged violation of the local law applicable to Calhoun county, approved December 7, 1886, and entitled "An act to prohibit the sale, giving away, or otherwise disposing of, spirituous, vinous, or malt liquors, of intoxicating bitters, or patent medicines, having alcohol as a base, in Calhoun county." Sess. Acts 1886-87, p. 671. This statute contains 10 sections, the first of which provides that, on the filing of a petition by 50 or more resident householders and freeholders of the county, praying for an election to ascertain the wishes of the people as to prohibiting the sale of intoxicating liquors in the county it shall be the duty of the judge of probate to order an election for that purpose. The second section provides for notice of the election, the appointment of inspectors, etc and the third section, that the election shall be governed by the general election laws. The fourth section provides how the casting of votes for and against prohibition shall be made, and then adds: "When the votes so cast are returned and counted by the board of supervisors, as now required by law, if it be found that a majority of all the votes cast and so counted in the county are to prohibition then it shall be the duty of the probate judge to record the result in his office, and to give notice for 30 days, by publication in all the newspapers published in the county, that a majority of the qualified voters, who voted at said election, voted for prohibition." Section 5 provides: "That after the expiration of said thirty days' notice, it shall be unlawful for any person, firm, or corporation to sell, give away, or otherwise dispose of, any spirituous, vinous, or malt liquors, or intoxicating bitters, or any brand of bitters or medicines with sufficient alcohol or spirituous liquors therein to make a man drunk, within the county of Calhoun." Sec. 6. "That any person or persons who shall violate the provisions of the preceding section (5) shall be guilty of a misdemeanor, and on conviction shall be fined," etc. The seventh section makes it a misdemeanor for any person to sell or give away any spirituous liquors on the day of the election, or within two days next preceding. The eighth section declares exceptions as to wines sold for sacramental purposes, domestic wines, etc. Sec. 9. "That this act shall be so construed that if an election is held, in pursuance of its provisions, during the year 1887, the prohibition provided for by the fifth and sixth sections of this act shall not take effect till after the 30th day of April, 1887; and that the probate judge of Calhoun county shall not issue to any person or persons or liquor license from the 1st day of January, 1887, for a longer period than the 30th day of April, 1887." The tenth section relates only to other prohibitory laws, declaring that they shall not be affected by the provisions of said special statute.

On the trial, as the bill of exceptions shows, the state introduced a witness who testified that in the summer of 1888 he bought a glass of lager-beer from the defendant within the limits of the county, and then announced, in answer to an inquiry by defendant, that the state proceeded for a violation of said local law. The defendant then moved "to exclude said evidence from the jury because it had not been shown that the election provided for in said act had been held, or that its result was in favor of prohibition." The state then offered in evidence a transcript, duly certified, from the records of the probate court, showing (1) a petition for an election, signed by more than 50 citizens, which was filed on the 28th day of December, 1886; (2) an order for an election founded on said petition; (3) the return of the supervisors as to the result of the election, showing 1,422 votes in favor of prohibition and 1,009 against it, filed February 19, 1887; (4) an order of the probate judge, dated February 19, 1887, for the publication of notice of the result of the election in all the newspapers of the county; and (5) a notice, or form of notice," of result of prohibition election," signed by the probate judge, and dated February 26, 1887. The defendant objected to the admission of this transcript as evidence, and of each paper contained in it, and especially to the notice, because it was not shown that said notice had ever been published as required by said special statute. The court overruled the objections, and the defendant excepted. This being all the evidence, and a jury having been waived, the court rendered judgment finding the defendant guilty as charged; to which judgment and rulings he duly excepted.

H. C. Tompkins and Gordon McDonald, for appellant.

W. L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

Among the questions prominent in this case, as presented by the record and by admissions at the bar are those which involve the construction of the act to prohibit the sale of liquor in Calhoun county; in respect to the notice required by section 4 of that act; the effect the omission of that notice has on the provisions of sections 5 and 6; and whether, if the statutory requirement of notice is imperative, compliance with it had to be shown by the state on the trial of this case; and, finally, whether such compliance was shown.

The language of the statute, in the particulars under consideration, is entirely free from ambiguity. There can be no misunderstanding of its provisions as to what notice should be given, by whom it should be given, or the manner of giving it. In such cases there is no reason for construction, the only legitimate function of which is to evolve the true meaning of the law-makers to bring certainty out of doubtful expressions, and to replace ambiguity with clearness. If the expressions employed involve no uncertainty, they speak for themselves; and the purpose they evince cannot be thwarted by any considerations that may enter the minds of judges affecting the wisdom or policy of the enactment. Hence, it is not for this court to say with respect to the matter in hand, that when the legislature required publication in "all the newspapers published in the county" they did an unwise thing, by putting it in the power of one newspaper to defeat the requirement, at least, if not the whole law, and therefore that they must be held to have intended something other than that which they have clearly expressed. Whether it was the part of wisdom for the legislature to anticipate that the papers would publish the notice, rather than that they, or any one of them, would from improper motives refuse to do so, we need not decide. Certain it is that such provisions are not new to the laws of this state. Several of our general statutes predicate important proceedings on the publication of certain notices in the newspaper or newspapers of particular localities; and it has never been suggested, even, that such notices could be pretermitted because, forsooth, the newspaper proprietors might refuse to publish them. The law is thus written in plain terms; and we are not authorized to take from, or add to, or change those terms in any particular by construction. Carlisle v. Goodwin, 68 Ala. 137; Reese v. State, 73 Ala. 18; Coffin v. Rich, 71 Amer. Dec. 559, 563.

It is to be next considered what the effect of the requirement of publication was on the prohibitions of the statute. Was it directory merely, or mandatory? And was compliance with it a condition precedent to the criminality of the acts specified in section 5? With regard to an enactment which requires a certain thing to be done, or done in a particular manner without an express declaration of the consequences of non-compliance, it will be found, generally, correct to say that nullification is the natural and usual result of disobedience, and that the thing required must be done in the particular manner. Endl. Interp. St. § 433; Commissioners v. Gains, 3 Brev. 396; Best v. Gholson, 89 Ill. 465. And while the property of treating statutory provisions, under certain circumstances, as directory merely, is fully recognized, it is a power which verges so closely upon legislative discretion as to be exercisable by the courts only with reluctance, and in extraordinary cases. Koch v. Bridges, 45 Miss. 247. Another general rule may be deduced from the mass of adjudications on this subject; that is, that statutes are to be construed as directory merely, and as admitting of departure from compliance with their terms only in conservation and furtherance of their supposed spirit and purpose. Proprietors v. Jones, 36 N. J. Law, 206. And as the legislature can in no case be held to have intended to perpetrate a private wrong, or to work out an undue advantage to any individual, or to lodge power to affect such results, in the discretion of officers charged with the performance of prescribed duties, it is said enactments will never be construed to be directory when "the act or omission can by any possibility work advantage or injury to any one affected by it." Koch v. Bridges, supra; Best v. Gholson, supra. This reference to some of the abstract principles pertaining to the matter under discussion may be concluded with the generalization that provisions which require a thing to be done at a certain time or in a particular manner will be interpreted as directory when the courts can see and know that it may be done, so as to fully accomplish...