The Montgomery advertiser., 1909-01-26
SMASHES ANTI-sHIPPING LAW
 PASSED AT LAST SESSION
Declared Unconstitutional by Judge
 A. D. Sayre.
Impossible to Say That Roads Have Right to Refuse shipment of Non-intoxieatfag Malt Li-
 auers.

| fense, in the mandamus proceedings of
 the Capitol Brewing Company against
 the Louisville and Nashville Railroad.
 Judge Sayre yesterday declared that,
 so far as his court was concerned. the
 anti-shipping law of Alabama Is un- constitutional.
 Judge Sayre also declared that It
 seemed doubtful that the Statewide prohibition law intended to prohibit the disposition" of -intoxi xicating spiritlouS vinous or malt liquors. This was another blow to the defense which contended that the prohibition
 bill included. under Its ban. all bev-
 erages with alcohol as ingredient, In
 no matter what quantities.
 The opinion set forth, further, that
 the railroad may transport non-intoxl- eating malt liquors. as the beverage in the case. White Top" though such transportation were prohibited by law. This phase of the decision followed, as . matter of course, from his inter- pretation that the prohibition law did not include the notwithstanding alca- holic substituted.
 The case was a suit of the Caplto' Brewing Company against the Louis vile and Nashville Railroad, In which q mandamus was demanded, compelI. ing the railroad to ship, into prohi. biuon territory, the beverage of the brewing company known as White Top" The complaint of the brewing company attacked the constltutionality of the anti- shipping law.
 The defense, as urged by the rail road, presented It's case on demurrers, in which the constitutlonalitv of the anti-shtpping law was urged. It was an overriding of the demurrers that constituted the opinion of Judge Sayre
 Fault of Senate Journal
 The unconstltutionaiIty of the anti shipping bill was drawn by Judgt Sayre from the fact that tue Journai of the Senate failed to record the course of the bill in detail. from its delivery into the hands of the committee on temperance, the action on 1t by the committee. and It's return to the Sen. ate, all ng -which tss fnnnired. by the constitution, to afiirmatively appear
 Judge 6Ayre endeayored to show. in his decisieu, the importance 0t care on the part of the clerks whose duty 1t Is to draft the journals. That this care might lapse through the difilcul- ties under which the clerks labor was shown. But that such lapses constI tute fragrant errors Is stated by Judge Sayre. as but such Is the constitu- tion. and 1t must be obeyed."
 Judge Sayre also declares that, even if the prohibition law did intend to prohibit the disposition of non-intoxi- eating lquors--whch was doubtful In his opinion-still the transportation of the liquor by common carrfert lu the prosecution of its public business cannot be said to constitute such & disposition as Is prohibited by law.
 The State and the Louisville and Nashville Railroad counsel, both being associated in this instance. may ap- peal. The case will be taken with as much despatch as possible to the Supreme Court
 The decision seems to have been complete victory for the near-beer forces in Montgomery. The state and road counsel are not satisfied. how ever. and may appeal in such fashion as will bring forth a decision of the Supreme Court on the question or whether the roads are amenable to the penalty provision of general prohiol- tion.
 Decision Text.
 The decision of Judge Sayre in full. follows:
 Application to compel the defend- ant railroad company to receive for shipment a cask of notwithstanding malt liquor.
 "No doubt the act to prohibit the shipment. transportation, and delivery of liquors into prohibition districts. approved July 1S, 1907, was not enacted in accordance with the Constitution. s2 of the Constitution provides: No bill shall become a law until it shall have been referred to standing of each house. acted upon by such committee in session and re- ferred therefrom, which facts shall af- appear from the journal of each house.
 "The journal of the Senate shows a
 N.AN fNa.,a faaa on Temperance, and without any rec ord of intermediate steps. a vote of the Senate taking 1t from the adverse calendar, and It's passage. The jour- nal does not afflrmatlvely show a com pliance with the Constitution. In the modern constitutional scheme of leg lslation in Alabama much depends up- on the clerical officers of the two houses. In practice pitfalls provided at every turn for good and bad bills alike can only be avoided by the clerks Their importance as factors In Legislation is further increased by the consideration that while the Con- stitution requires each house to keep a journal of It's proceedings. which must afirmatively show various steps In leg these journals, according to the decision, may be. and in practice are in large part prepared long after Ia ture. But such is the Constitution. and 1t must be obeyed.
 'If the Statewide prohibition law Intends to prohibit the disposition of spirituous. vinous and malt liquors--which seems very doubt iul---stilI the transportation thereof by a common carrier in the prosecution of It's public business cannot be said to constitute such disposition as is pro- libited by the law. In the absence of he anti-shipping law. now decreed. so lar as this court is concerned. liquors nay be shipped for perfectly legitimate purposes as may many other things capable of use In the violation of the aw. In the discharge of its public functions as a carrier and it's obliga- ion to serve all corners, 1t was the Tuty in general of the defendant to re- ,eive for transportation articles which nay be safely and lawfully transports id. It is impossible for the court 10 Iay that the defendant has a right. as natter of law. to refuse to carry rnon- intoxicating malt liquors. For any hing appearing to the eonfray. 1t was ts duty to carry the petitioners ship. nent