The Birmingham age-herald., 1909-07-02

a much quoted authority on the subject, states the theory and policy of such laws in the following language: The evil to
 be avoided Is the communication from one to another of an article which may be in- furious to the recipient, or which, by it's
 general use may demoralize or harm the
 whole community. It is not attempted to
 restrain a mans private indulgence in
 drink, but that is because law deals not
 with the isolated individual, but with men
 in their relations to each other.'-Black,
 Section 39
 ''No purpose to put intoxicating liquors
 outside the pale of the law has ever as
 yet been announced in statutory enact ment. On the contrary, far as this state is concerned the general prohibition law of November 2S, 1907, preserves by
 exception to retail druggists the right to sell alcohol and wine for certain desg- mated purposes, and necessarily further
 recognizes the lawfulness of keeping in toxicating liquors and beverages by a provision that the act shall not prohibit the serving of the liquors and bever-
 ages mentioned therein in private
 residences in ordinary social intercourse.
 In the License Cases, 5 How. 504, Fancy, C. J., says: Spirits and distilled liquors
 are universally admitted to be subjects
 of ownership and property In Dorman vs. state, 34 Ala, 2l6, in a judgment sus- taining local prohibition statute, R. w. Walker, J., said: The form in which the question Is stated assumes that spirit
 uous liquors are property. Of this there
 is no doubt, and we will not waste words upon proposition about which there can be no reasonable dispute-3 Herman, 3S4. All property is equally sacred in the view of the constitution. And hence we are not permitted to listen to sug- gestion that this particular specie of property is so pernicious in it's influences upon society that the best interests of the state would be promoted by its destruc-
 tion. The description of property to which this act refers has nothing to do with this
 controversy; for statute, depriving
 citizen of his property in spirituous | liquors, Is just as clearly in conflict with | the constitution as one which should take
 from him his lands, houses and slaves | This decision was rendered in 1859. The
 fact that an intervening wis major has l overruled it In part does not affect it's | force or application to the case In hand | In ex parte mayor of Florence, 8. Ala, | 4l9, It was said that liquors are consid-
 cred property the subject of ownership, | and entitled to protection, though, like
 other property, held subject to the condi-
 tion, that 1t shall not be so used as to | lnJure the equal rights of others, or the
 interests of the community.
 Counsel for appellant announce their | o
 sense in rule which would differentiate | intoxicating liquors and beverages from | burglars tools. lottery tickets, infected | clothingh or diseased animals. They ar que that liquors are put by the statute
 outside the pale of the law. Much of the same argument was made in Preston vs. Drew B Me. 55s. In response Shepley. .. Jo said It is, however, insisted on argument that a person, by the common law, can no more acquire property in
 spirituous and intoxicating liquors than
 ne can In obscene publications and prints There Is clear and marked distinction
 between them. Such liquors may be ap-
 piled to useful purposes. This is admit ted In the act by Its authorizing their sale for medical purposes. It is their abuse or misuse alone which occasions
 the mischief. Obscene publications and prints are in their very nature corrupt
 ing and productive only of evil They are incapable of any use which is not corrupting and injurious to the moral sense. In Lincoln vs. Smith, 27 Vt, 328. the court says: |" The act does not de- clare that they Qiquors) are not property, and there is no language which should receive construction to forbid their be- ing property. Though there is a prohibi- ton to sell them. yet that cannot pre- vent man from having a property in them Tor his own use, without any inten-
 ton to sell them. In the case of West
 
 l.. R. A. S40, the defendant was charged under statute which made 1t an offense to solicit or receive orders for, or keep in his possession for another, spirituous liquors. etc.
 The court observing that the provision | of the statute which prohibited the keep | ing In possession for another had no ref erence to the intent or purpose for which | the liquors were kept, but denounced as 1 crime the simple fact that the liquor
 was kept in possession for another, how l ever innocent the act or commendable l the purpose and announcing its opinion l that If it be a crime for a person to keep i liquor in his possession for another, 1t would be equally so for him to keep 1t | for himself. said:
 The keeping of liquors in his pos
 session by person. whether for himself
 or for another, unless he does so for the l illegal sale of it. or for some other i'm proper purpose, can by no possibility in- | jure or affect the health, morals or safety of the public; and, therefore, the statute
 prohibiting such keeping in possession | is not a legitimate exertion of the police power. It is an abridgement of the priv ileges and immunities of the citizen with