The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1909-07-04

profess 70 pss>abit elthss ~ - Or
the sa1s ~ llouoss eltsUet4oR From
public policy d ransAlA if desllrss
that nQpor shAn not hs heps q sueh
nlAesA u u. u hot . eumptuAsy
law. wh1oh onaakno fnrtAse than q.
most any 49, q tnls dssse!ptioa. nor
y u eny mOes stfingent than many
regard 70 The publio peAos and SAFETY"
The opahlo0 then finos analogy n the
statutns against the keeping uf gun
powder IN thlokly populated districts.
and, also. another "a the inhtbition Of
sales Of liquors In two miles Of houses
Of wornhip. II 10 evident that the
license system prevailed q the time
not Impair the value Of the principle
applied nor fts service. ~ authority.
The court then oitss and quotes, a.
authority for the ruling made. the case
OF Heisenbrittie W. Charleston. Mac
Mullen. 23s. which aptly supports the
courts holding. II was shown on the
trial that Clark kept a. eating house
and that he hal had stored. for some
weeks. under his restAurant one or
more casks Of Intoxicating liquors.
The conviction Of violation Of the
quoted ordinance was affirmed A. In
dicated. the court holding that the
ordinance infracted no State or
Federal constitutional provision.
Several Similar Instn.nceA
State vs. Clark. has been 1t least
twice recognised by the New Hamp-
shire court a. sound and worthy to
be applied In principle or analogy to
other matters presented for decision.
These two instances are the cases Of
state VS.. Nayes, 80 N. H. 179. decided
in 1855. and State W.. Freeman. SO N.
H. 42s.
The Georgia Court in Bice VS.. State.
400 Ca 1T. having then under con-
sideration the constitutionality OF an
enactment prohibiting the carrying to
church or other place whore people
assemble for divine worship '1iquor or
intoxicating drink" declared the enact
ment valid and affirmed aRice's convic-
tion. Notwithstanding he plead Illness
OF his wife as the reason for his car
rying Of the liquor within two hun
dred yards Of q church and there hav-
ing 1t In his conveyance. 1t IL APP
parent that. II the majority view on
this appeal IL sound, the New Hamp-
shire and Georgia courts egregiously
erred In their respective conclusions.
and. In CONSEQUENCE, unjustifiably In
fracted private rights.
What Of the authorities affording
the basis of the majority conclusion7
In the first place there IL no sort
of doubt that intoxicating liquors. even
though being devoted to violations OF
penal statutes of the state. are proper
ty. Such was the ruling OF this court
in Smith VS.. Dinkelspiei. 81 Ala. 52s,
where the liquor owner was allowed to
recover for trespass by sheriff levy
ing process The court declared
plaintiffs property IN the iiquora
and his right to damages
clared plaintiffs property in the liquors,
and his right to damages, to q limited
extent, Notwithstanding they were be-
ing used as a vehicle for the violation
of the statutes against retailing with.
out a license. The other decisions Of
this court, cited In the majority are
in accord on the property right, with
Smith " Dinkelspiel. supra. While the
existence Of such right IL settled, II
has been. Of course, long adjudged to
finality, and never now doubted any
where that such right OF property Is
subject to proper qualifications by the
exercise, by the State, OF it's police
power. And 1t has become the con-
firmed policy in our country to treat
the traffic In intoxicants as In no sense
an unimpairable right inhering In the
ownership OF such liquors. 20 Cyc
SO, and authorities In notes. The
state may prohibit such trafiic within
it--regulate or restrain the traffic
and yet no property right is impaired.
I have. hence. no difference with my
brothers ON the abstract question Of
property right in liquors. whatever
their use or intended use.
To sustain this ordinance does not
require q reputation Of the stated
property right. Indeed, to declare the
ordinance invalid is to exaggerate the
property right in liquors so as to seri-
ously, vitality, on this subject, impair
the police power of the State. 1t IL
at least as unfortunate to unwarrant-
ably curtail that power as 1t 10 to un-
justifably infract property rights.
II the writer is correct In the con-
struction taken Of the ordinance. IL
clearly appears that, the decisions cited
In the majority opinion are not au-
thorities against the validity of this
ordinance. They may be for another
inquiry, but not the one presented by
the Bessemer ordinance.
West Virginia v. Gilman, 20 w. Va,
i4e, (s L. r. A. Ss7). deals with q
statute wherein 1t was made among
other things. an offense to keep In
his possession for another spirituous
liquors, etc. That court condemned
the statute as invasive Of property
IikHtB. WHctACE THO nOA0htA8 10 5Oul0
or not, 1t bears no relation. in princi-
pie or analogy. to the Bessemer ordi-
nance where the prohibition was the
storing. deposit or possession of de-
fined liquors in or at places Of GER
tain. specified class. In the Gilman
case. the prohibition was against the
possession OF liquors generally and
under It every possession Of liquors
generally everywhere, in the State.
was q violation OF the statute. The
cases are obviously different.
In State v. williams. l46 N. C. SIS.
q statute prohibiting the importation.
into Burke County. of more than one
half gallon OF spirituous liquors In one
day, the court declared the statute In
valid. Whether we'll or lily supported
that conclusion was or iB. certainly
such a latitudinous provision Of lay
as was there dealt with is without KIN
ship or resemblance to the ordinance
here involved. No class OF places
whereat the public are served with bev-
erages were defined in the statute. The
inhibition was general, unlimited. and
operated as we'll in a tenantless forest
of the county OF Burke as in any popu-
lous community within its confines. 1t