Webster v. State

• Citation: 82 S.W. 179
• Parties: WEBSTER et al. v. STATE.
• Decision Date: 27 June 1903
• Court: Tennessee Supreme Court

Page 179

82 S.W. 179

WEBSTER et al. v. STATE.

Supreme Court of Tennessee.

June 27, 1903.

Appeal from Circuit Court, Obion County; R. E. Maiden, Judge.

Roy Webster and Max Heilbronner were convicted of unlawfully tippling liquors within four miles of a schoolhouse, and appeal. Affirmed.

Lehman & Lehman, Wright, Peters & Wright, Ownby & Kellar, and H. C. True, for appellants. Attorney General Moore and Wells, Owen & Smith, for the State.

WILKES, J.

Defendants are convicted of unlawfully tippling intoxicating liquors within four miles of a schoolhouse, and sentenced to pay a fine of $50 each and to suffer imprisonment for 60 days in the county jail; and they have appealed. There was a motion to quash the indictment in the court below upon the grounds that the act of the General Assembly of 1903, under which this indictment was based, was void (1) because the act and those it amends are vicious class legislation, in that manufacturers are exempt from their operation and permitted to sell intoxicating liquors at wholesale within the prescribed limits, and (2) because the acts violate the fourteenth amendment of the Constitution of the United States, in denying to all citizens the equal protection of the law. The motion to quash was overruled, and the cause was heard upon its merits before the court and a jury, with the result as stated; and the defendants have appealed and assigned errors.

The facts, so far as necessary to be stated, are that previous to January 26, 1903, W. R. Webster, the brother of defendant Roy Webster, had been for several years engaged in the retail liquor business at the White Oak saloon in Union City, Tenn.; that he had been in the habit of taking out his license quarterly; that on the 26th of January, 1903, he had an unexpired license, taken out shortly before that date, and having nearly three months to run; that on that date he went to the office of the county court clerk of Obion county, at Union City, and procured a license to be issued in the name of Roy Webster, or R. L. Webster, one of the defendants herein, to run for the period of one year from that date, and paid therefor the license tax due the state and county. It was further shown that there was no apparent change in the business carried on at the White Oak saloon; that W. R. Webster continued in business there until the 31st of March, 1903, when an act was passed by the Legislature, which then took effect, repealing the charter of Union City, and thereupon no further business was done at the saloon until the 17th of April, 1903, when the sale on which this indictment is predicated was made. It also appears that up to the date of trial W. R. Webster had not settled and paid his ad valorem taxes to the county court clerk under his original license. On the 16th of April, 1903, Roy Webster commenced to do business at this saloon. The defendants testified in the case for themselves. Defendant Roy Webster stated that on the 26th of January, 1903, he bought out the business of his brother, W. R. Webster, and took out a license for the full year in his own name, and that thereafter the business carried on at the White Oak saloon was his own, and not that of his brother; that he closed said business March 31, 1903, and did not reopen until April 16, 1903; that he procured the money from the firm at Memphis of which his codefendant was a member to buy his license, and that this money was procured by draft for $500 on Heilbronner's firm, and was cashed 27th of January; that Heilbronner offered Roy Webster to put him into business, and told him that, if he would take out a license for a year, he would furnish him money to pay for the same, and honored the draft in pursuance of his promise, and with the understanding that the liquors would be bought from his firm, though there was no express agreement to that effect. The defendant Heilbronner claimed that his only interest in the business was to sell goods to his codefendant, Webster, and that his firm advanced money to purchase the license as a matter of business, and that thereafter he sold to his codefendant a large amount of goods, on which his firm had been paid considerable sums, and he denied that he was in any way interested in the business, or that he participated in the sale for which he, with his codefendant, was indicted. It is shown that there was no apparent change in the business between January 26, and March 31, 1903, but that it was understood that W. R. Webster was operating still the business of the White Oak saloon when it was closed on March 31, 1903. It is further shown that on the day before the saloon was reopened on April 16, 1903, both the defendants paid a visit to the mayor of Union City, and endeavored to secure immunity from the municipal authorities, in order that they might test the question and their right to do business in Union City with the state and county authorities. It seems that at this conference Heilbronner did most of the talking, and he gave the mayor to understand that he and his codefendant, upon the advice of their attorneys, were going to open business and test the question. The mayor declined to make an agreement with them, and thereupon on the next day the saloon was opened for business and sales made, both of defendants being about the saloon, when they were arrested upon a warrant issued by a justice of the peace and bound over to court. Upon these facts the jury found both defendants guilty.

The legislation drawn in question in these two causes is what is known in Tennessee as the "Four-Mile Law," and originated with chapter 23, p. 37, of the Acts of 1877, which is as follows:

"Chapter 23.

"An act to prohibit the sale of intoxicating liquors near institutions of learning.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall not, hereafter, be lawful for any person to sell or tipple any intoxicating beverage within four miles of an incorporated institution of learning in this state, and that any one violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars, nor more than two hundred and fifty dollars, and imprisoned for a period of not less than one nor more than six months.

"Sec. 2. Be it further enacted, that this act shall not apply to the sale of such liquors within the limits of any incorporated town, nor to sales made by persons having licenses to make the same at the date of the passage of this act, during the time for which such licenses were granted, nor to sales by manufacturers of such liquors in wholesale packages or quantities.

"Sec. 3. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.

"Passed March 19, 1877."

The constitutionality of this act was attacked, but sustained by this court. State v. Rauscher, 1 Lea, 97; Hatcher v. State, 12 Lea, 368.

The provisions of this original act were extended, so as to prohibit, under certain conditions, sales of liquor as a beverage within four miles of any schoolhouse, public or private, by chapter 167, p. 293, of the Acts of 1887, as follows:

"Chapter 167.

"An act to prohibit the sale of intoxicating liquors as a beverage near any schoolhouse, public or private, where a school is kept, whether the school be in session or not.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall not hereafter be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be in session or not, in this state, and any one violating the provisions of this act shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine for each offense of not less than ten dollars nor more than one hundred dollars, and imprisonment for a period of not more than six months, at the discretion of the court.

"Sec. 2. Be it further enacted, that this act shall not apply to the sale of such liquors within the limits of any incorporated town, nor to sales made by persons having licenses to make the same at the date of the passage of this act during the time for which such licenses were granted, nor to sales by manufacturers of such liquors in wholesale packages or quantities.

"Sec. 3. Be it further enacted, that all laws in conflict with this act be, and the same are hereby repealed.

"Passed March 23, 1887."

The act of 1887 was enforced by this court in Moore v. State, 96 Tenn. 544, 35 S. W. 556, and Harrison v. State, 96 Tenn. 548, 35 S. W. 559.

In 1899 section 2 of chapter 167 of the Acts of 1887 was amended so as to prohibit sales of liquor in towns thereafter incorporated of not more than 2,000 inhabitants by the federal census of 1890, or any subsequent federal census. The act of 1899 is as follows (Acts 1899, p. 474):

"Chapter 221 (House Bill No. 55).

"An act to amend section 2, chapter 167, of the Acts of the General Assembly of 1887 to prohibit the sale of intoxicating liquors as a beverage near any schoolhouse, public or private, where a school is kept whether the school be in session or not.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that section 2, chapter 167, of the Acts of the General Assembly of 1887 be amended so as to read as follows: `That this act shall not apply to the sale of such liquors within the limits of any incorporated town, except towns hereafter incorporated with a population of not more than two thousand inhabitants by the federal census of 1890, or any other subsequent federal census, nor to sales made by persons having licenses to make the same at the date of the passage of this act, during the time for which such licenses were granted, nor to sales by manufacturers of such liquors in wholesale packages or quantities.'

"Sec. 2. Be...