Try-Me Bottling Co. v. State

• Decision Date: 13 January 1938
• Docket Number: 6 Div. 155
• Citation: 235 Ala. 207,178 So. 231
• Parties: TRY-ME BOTTLING CO. et al. v. STATE.
• Court: Alabama Supreme Court

178 So. 231

235 Ala. 207

TRY-ME BOTTLING CO. et al. v. STATE.

6 Div. 155

Supreme Court of Alabama

January 13, 1938

Appeal from Circuit Court, Jefferson County; E.M. Creel, Judge.

Bill for injunction by the State of Alabama against the Try-Me Bottling Company and Joe L. Teaver. Decree granting temporary injunction, and respondents appeal.

Affirmed.

Lange Simpson & Brantley, Coleman, Spain, Stewart & Davies, and Jos. S. Mead, all of Birmingham, for appellants.

A.A Carmichael, Atty. Gen., Wm. S. Pritchard, Special Asst. Atty Gen., and Winston B. McCall, of Birmingham, for the State.

GARDNER Justice.

The bill is filed by the State seeking injunctive relief against defendants charged with conducting, in connection with their legitimate soft drink business, a lottery or gift enterprise in the nature of a lottery in disregard of the laws of this State.

Defendants insist the suit was brought in the name of the State without proper authority therefor, and much argument is directed to that question.

Some of the cases cited by defendants (People v. General Electric Co. et al., 172 Ill. 129, 50 N.E. 158; Kenney v. Consumers' Gas Co., 142 Mass. 417, 8 N.E. 138; State ex rel. Wilson v. Shively, 10 Or. 267) disclose these courts were interested to know that the suit was not one in which the State merely permitted the use of its name, "or invidiously assume[s] and champion[s] the cause of one private citizen against another for the purpose of settling rights or titles in controversy between them, when each and all citizens are equally entitled to its protection." Other authorities (United States v. Throckmorton, 98 U.S. 61, 71, 25 L.Ed. 93; State v. Gattavara, 182 Wash. 325, 47 P.2d 18) were similar to our own of Ex parte State, State v. Stephenson, 113 Ala. 85, 21 So. 210, to the effect that judicial proceedings in the name of the State should be by the Attorney General of the State, and not other officers. But technical refinement is not indulged.

As said in the Throckmorton Case, supra: "It is essential, therefore, to such a suit, that without special regard to form, but in some way which the court can recognize, it should appear the the Attorney-General has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his control of the cause."

In the instant case all of this was thoroughly reviewed before the chancellor. The name of the Attorney General of the State is signed to this bill. Special counsel employed consulted the Attorney General and correspondence ensued. Both the Attorney General and the Governor fully understood the nature of the suit, and it is undisputed that the name of the Attorney General was signed to the bill by special counsel upon the express direction of the Attorney General. And under the express language of section 854, Code of 1923, the Attorney General could independently have instituted this litigation. Montgomery v. Sparks, 225 Ala. 343, 142 So. 769.

It is clear enough from the proof the Governor in his letter to counsel intended no instruction as to any particular method of procedure; but, in view of the right of the Attorney General to independently bring the suit, no further consideration need be given this phase of the argument.

And we think it is also clear the suit is brought by the State in good faith with the full co-operation of the Governor and the Attorney General, and in what they conceived for the best interests of the whole people of the State.

True, some of defendants' competitors were interested sufficiently as to employ special counsel, but this does not in any manner seriously affect the good faith of the proceedings by the State, and is a mere incident thereto. And, out of abundance of caution it seems, this special counsel has been duly appointed an assistant to the Attorney General. But enough has been said to show our view the court correctly ruled in declining to abate or dismiss the suit or dissolve the temporary restraining order on account of any of these matters discussed.

Coming to the merits of the case little need be said.

Defendants, in order to advertise and stimulate business, put into practice the following, as described by the corporation president and manager:

"Q. Now, Mr. Teaver, I will ask you whether or not you at any time inaugurated a practice of putting crowns on any of the bottles of this beverage, underneath which crown there was a number, and I would like for you to explain to the court when that was and exactly what you did. A. On July the 31st; I think it was the 29th or 31st, last year--

"Q. That was 1936? A. That was 1936. We started what we called our premium advertising. On that basis we put in with the crowns that we put on the bottles; we put in a certain number of crowns that contained underneath the cork a stamped figure five and marked five cents and then we put some crowns of the same type marked ten cents and some crowns of the same type marked twenty-five cents and some crowns of the same type marked fifty cents and some crowns of the same type marked one dollar.

"Q. Now these were blown into the cap? A. That was printed in black type underneath the cork on the tin plate that the top was made from."

His further testimony discloses that there was invested an average of $15 to each 100 cases of the soft drink that was being sold, or 15 cents a case; a purchaser of the bottled drink takes the crown, lifts the cork, and looks for the number; if a "lucky" number, it is redeemable in cash by the dealer, and defendant corporation reimburses the dealer. It may be 5 cents or as much as a dollar; but any member of the public who finds one of these crowns with the "lucky" number may also receive the cash it represents in the same manner, as the manager states "lots of them are picked up by kids *** thrown out in the trash, and kids pick them up lots of times." No skill is required, the "lucky" number determines the value.

The question of what constitutes a lottery or gift enterprise in the nature of a lottery has been here recently considered in Grimes v. State, Ala.Sup., 178 So. 73, and needs no reiteration.

Under that authority, there can be no doubt that defendants' advertising scheme comes within the definition of a lottery as therein set forth, and therefore runs counter to our constitutional and statutory provision for the suppression of lotteries and gambling devices generally. Section 65, Constitution 1901; Section 4247, Code of 1923; Gen.Acts 1931, p. 806.

Our decisions recognize the general rule that courts of equity have no jurisdiction to enjoin the commission of offenses against the criminal laws of the State. Pike County Dispensary v. Mayor, etc., Brundidge, 130 Ala. 193, 30 So. 451.

On the other hand, if the facts presented disclose the need of equity intervention for the protection of rights cognizable by equity, then injunctive relief may be granted, though as an incident thereto the writ may also restrain the commission of a crime. Or, as otherwise stated, equity will not withhold the remedy of injunctive relief merely because the acts constituting a nuisance are also of a criminal nature. Numerous illustrative cases are noted in the annotations found in 40 A.L.R. p. 1145 et seq.; 91 A.L.R. p. 316 et seq. Some authorities have persistently held to the view that equity will grant injunctive relief only when property rights are involved, but this court long since repudiated any such theory as wholly unsound. State v. Ellis, 201 Ala. 295, 78 So. 71, L.R.A.1918D, 816, and authorities therein cited, including that of Stead v. Fortner, 255 Ill. 468, 99 N.E. 680, 684, wherein was the following language here pertinent: "The maintenance of the public health, morals, safety, and welfare is on a plane above mere pecuniary damage, although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved would be to say that the state is unable to enforce the law or protect its citizens from public wrongs."

The bill, therefore, rests for its equity upon the well-recognized and ancient jurisdiction of equity courts to restrain by injunction public nuisances. Ridge v. State, 206 Ala. 349, 89 So. 742; State v. Ellis, 201 Ala. 295, 78 So. 71, 72, L.R.A.1918D, 816.

But defendants insist there is no public nuisance shown, and that at most only a violation of the criminal statute is involved. We cannot agree. The device under the cap of the bottle is for convenience referred to in the argument as the "flicker device," and, as previously observed, they are so distributed as to average 15 cents a case. It is an advertising scheme, as more fully indicated by the following handbills distributed to the public by defendants:

"Notice.

It pays to Drink Dixi-Cola

A Most Invigorating Beverage

Made from Pure Harmless Ingredients

Only 5

"Many Dixi-Cola Crowns Are Valuable

Some are worth .05

Some are worth .10

Some are worth .25

Some are worth .50

Some are worth 1.00

Always Look under The Cork in Dixi-Cola Crowns for Premiums

(Trade Mark)

(Exhibit "B")

Watch for Valuable Bottle Tops

Whenever you see a Bottle Top Stop and Examine It

If it's a Dixi-Cola Top, lift Cork with the blade of your knife, look for imprint on tin under cork.

Lots of These Crowns are Valuable Drink Dixi-Cola Trade Mark

The talk of the Town'

And remember you always get Your Moneys worth and more when Buying Dixi-Cola

Then too, like rare specimens of coin many...