Ward v. Markstein

• Decision Date: 25 May 1916
• Docket Number: 6 Div. 337
• Parties: WARD et al. v. MARKSTEIN.
• Court: Alabama Supreme Court

72 So. 41

196 Ala. 209

WARD et al. v. MARKSTEIN.

6 Div. 337

Supreme Court of Alabama

May 25, 1916

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

Bill by D.H. Markstein against George B. Ward and other commissioners in the city of Birmingham, to enjoin the enforcement of the liquor inspection ordinance. From a decree for complainant respondents appeal. Affirmed.

The facts sufficiently appear. The ordinance, section 4 thereof is as follows:

That it shall hereafter be the duty of any person, firm or corporation who transports, receives, accepts delivery of possesses or has in possession within the city of Birmingham or the police jurisdiction thereof, prohibited liquors, or any of them, to forthwith submit the same for inspection to the liquor inspector or his deputy at the nearest office of the liquor inspector, provided, however, that liquor while being transported as interstate commerce shall not be subject to such inspection, and when prohibited liquors, or any of them are brought into the city of Birmingham or the police jurisdiction thereof after this ordinance goes into effect by means of interstate commerce, it shall be the duty of the consignee, his agent or representative receiving or accepting delivery thereof from the common carrier, immediately after the delivery thereof by the common carrier to submit the same for inspection to the liquor inspector or his deputy at the nearest office of the liquor inspector. In such cases the liquor inspector or his deputy to whom such prohibited liquors, or any of them are submitted shall examine the package containing same, and shall inspect such package and each bottle, vessel or receptacle therein contained to determine whether or not such package contained such quantity of liquors in receptacles of such capacity as can be lawfully received, possessed or had in possession, and to determine whether or not such package contained any advertising matter, price list or other matter, the circulation of which is prohibited by the ordinances of this city, or the laws of the state. The person submitting such prohibited liquors or any of them, to the liquor inspector or his deputy, shall pay an inspection fee of 50¢ for each package, and all such fees shall daily be paid into the city treasury by the liquor inspector and his deputy. When the liquor inspector or his deputy making the inspection has completed same, he shall place upon the exterior of the package in a conspicuous place a certificate of the inspector or his deputy making the inspection executed in duplicate, which certificate shall bear in number, and shall carry the name and address of such consignee, the date and result of the inspection, and a brief inventory of the contents, and shall be signed by the inspector or his deputy making the inspection, but the signature may be by initials. Such inspector or his deputy making the inspection shall also place upon each bottle, vessel or receptacle contained in such package, a stamp containing the same number as that placed upon the exterior of the package. But this section shall not apply to the receipt or possession of alcohol by persons who are permitted by law to possess, sell or use the same, nor to the receipt or possession of wine for sacramental purposes when received and possessed in accordance with the rule and regulations prescribed by law.

Subdivision 31, § 25, p. 1415, Local Acts 1898-99, is as follows:

(31) To pass and enact inspection laws within the city, and to regulate the weighing and measuring of produce and provisions for man or beast, and to provide for the inspection and gauging of liquors, and to punish the use of false weights and measures.

Special Session 1909, p. 174, is as follows:

That the governing body of towns and cities of the state shall have and exercise full power and authority to adopt ordinances not inconsistent with the laws of the state to promote temperance and to suppress intemperance, and to suppress the traffic in such beverages as the laws of the state prohibit to be manufactured, sold, or otherwise disposed of, and to prevent invasions of such ordinances, also power to forfeit licenses granted by said towns and cities if the licensee violates said ordinances, and the power to provide for the destruction of liquors and beverages kept for sale in violation of law or for other illegal purposes, and that may be declared contraband. That this shall not be construed as limiting or diminishing the police powers of the towns and cities of the state under existing law, the purpose being to confer said powers in express terms, and to remove any question as to their existence.

General Acts 1915, p. 296, § 6, is as follows:

Such cities shall have full, complete, unlimited and continuous power and authority, from time to time, to adopt ordinances and regulations not inconsistent with the laws of the state, and the federal and state Constitutions to carry into effect or discharge the powers and duties conferred by law upon such cities, and to provide for the safety, preserve the health, promote the prosperity, improve the morals, orders, comfort, and convenience of the inhabitants of the city, and to prevent and punish injuries and offenses to the public therein, and to prevent conflict and ill feeling between the races in such cities, etc.

The provisions of the Code sections sufficiently appear.

M.M. Ullman and W.A. Jenkins, both of Birmingham, for appellants.

Percy, Benners & Burr, of Birmingham, and Allison, Lynch & Phillips, of Chattanooga, Tenn., for appellee.

McCLELLAN J.

On the 9th day of February, 1916, the board of commissioners of the city of Birmingham adopted Ordinance No. 345C. By its terms the ordinance became effective on the 21st day of February, 1916. The methods and measures the ordinance undertook to establish--the observance of which it assumed to enjoin upon all within its purview and effect--were put into operation in and over the police jurisdiction of the city of Birmingham. Pending the operation and enforcement of the measures and methods prescribed by the ordinance, this bill for injunctive relief was filed, and the respondents seasonably answered. The court below adjudged the ordinance to be invalid. Litigants on both sides of the line invoke a decision on the merits without regard to any possible questions that might only serve to defer final adjudication of the single vital inquiry, viz., whether the ordinance is void.

The ordinance is generally referred to as the "Liquor Inspection Ordinance." Its design is to require the submission of the liquors therein defined to the inspection of the liquor inspector or of a deputy liquor inspector, appointed by the city commission. This object is sought to be effected by laying the duty on the receiptor or possessor, within the city's jurisdiction, of such liquors to bring the package he has received to the view of the nearest inspector; and to penalize the failure to observe the duty thus enjoined. The definition of the subject of the inspection contemplated excludes any liquors that are still within the sphere of interstate commerce. It is designed to operate upon liquors that have passed without the protection or effect of interstate commerce. A fee of 50 cents for each package inspected under the ordinance is exacted of every one submitting the package received or possessed by him to the inspection prescribed. The method of inspection and the service required of the inspector are set down in section 4 of the ordinance. This section is reproduced ante, in the report of the appeal. In other sections of the ordinance there are many provisions intending to compel and to enforce, under penalty, the observance of the duty declared in the ordinance to subject every package of liquor, within its description, to the inspection designed. The caption of the ordinance is as follows:

"Ordinance No. 345C. To be entitled an ordinance to prevent evasions of the ordinances of the city of Birmingham for the promotion of temperance and concerning the sale, keeping for sale, etc., of certain prohibited liquors and beverages, to reduce and discourage the use and consumption of prohibited liquors and beverages, and to prevent injuries and offenses to the public of the city."

In the body of the ordinance (section 3) it is written:

"All funds derived from the inspection of liquors under this ordinance shall be devoted exclusively to defraying the cost of the inspection of such prohibited liquors, to the enforcement of the prohibition laws and ordinances of the city of Birmingham, and for the purpose of preventing evasions and violations of the state laws and city ordinances designed to suppress the evils of intemperance and to protect the city and its inhabitants from the evils connected with or growing out of the sale of, traffic in, use, possession and consumption of spirituous, vinous, malted, fermented and other intoxicating liquors and for maintaining an efficient system of inspection and police regulation thereof and efficient records of the names of persons using or receiving such liquors and the amount and

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