The Birmingham age-herald., 1911-09-10
SERIOUS MUDDLE IS BROUGHT ABOUT BY DIFFERENT VIEWS Judge Black Rules Smith Law Is Now in Full
 Effect BUT POLICE KEEP
 UP THEIR RAIDING Judge Lane Instructs Them to This Effect After Conference
 With the Attorney
 General

and fudge Lane issued renewed instruc- tions to the police department to continue making raids on the ground that the Smith law is not yet in force.
 Tho ruling of Judge Black was made in the case of C. Collins, charged with vocation of the prohibition law, which case was dismissed, no sale was proved. All of the prohibition cases on the docket yesterday were thrown out by Judge Black. The ruling is as follows:
 "The defendant in this case is charged with a violation of the transportation clause of a city ordinance, which ordi- nance is an exact copy of the state en- actment known as the Fuller bill.
 This act being the source of power for the passage of the ordinance which defendant is accused of infringing, it fol- lows necessarily that if the Fuller Dill is repealed and the policy of the law reversed as to the legal method to pro- mote temperance and suppress intemper- ance, that the ordinance adopting the Fuller bill is inconsistent with the exist ing state law.
 There are two questions to be decided to determine whether or not the defend- ant can be punished under the transpor- tation clause of the ordinance.
 ''First-Has the Smith bill been put into effect by an election held under the Parks bill?
 '.Second-If so, is the transportation clause of the Fuller bill repealed or sus- pended?
 If both questions are answered in the affirmative, the defendant is entitled to a discharge.
 Since there is contained in these bills no express statement as to when the Smith bill becomes effective, the intention Of the legislature must be derived from construction of the general aims and purposes of the bill, and the general statements contained therein
 ''In practically all of the cases l have found where a law has been submitted to the people for their approval the courts have referred to tNe declaration of the result of the election as to the time when 1t became operative. The courts hold that the determination of the vote, and it's publication, is decisive of the issues and direction for it's enforcement.
 Section of Bill
 "Aecording to section two of the Smith bill there is in every city where the sale is authorized,' an excise commission. The appointment of this commission is by virtue of the smith bill itself, and until 1t is in force no appointment can be made. .s.The law does not favor the idea of bills becoming effective by pecemeal, and no intimation is given in this bill of such legislative intention.
 'sThe doctrine of local option is that the people express themselves on the law before it becomes operative. This is the sole purpose of the referendum. When the people speak and express themselves for the measure proposed, the contingency upon which its operation depended has arisen. The verdict of the people is made a binding judgment by, the published declaration of the probate judge, sheriff and circuit clerk.
 'The sale of liquors is then author ized by law, whether a license is ever issued or not, the only hindrance being that no person has complied with the requirements to secure license for the exercise of such authority. If the consent of the excise commission given | hy the issuance of license is necessary to put the Smith bill into effect, they could at any time suspend it's operation and reinstate the regime of prohibition by the total cancellation of the saloon | licenses
 . ITO hold that such an important pol | icy of the state is subject to the whim | and caprice of one or more individuals, | would be to accuse the legislature of a serious breach of duty to the people. |
 My conclusion is that section of the Parks bill means what it says, and 1! that vote by the people, officially | declared put the Smith bill into effect | Immediately upon publication.
 'Is the transportation clause of the l Fuller bill repealed? I think so. It clearly cannot be enforced if the Smith | bill is regarded
 tl,a f,a, .t.- ton clause, l think. however, the con clusion can be reached on the broad | ground that both the Fuller and Car | michael bills are repealed in toto. In | reaching this conclusion l have not | been unmindful of the fact that the re- | peal of statutes by implication is not | favored.
 Variant Purposes
 "The widely variant purposes of these | laws and the divergent policies they - represent, must lead one to the con- | clusion that they are wholly incon- sistent with each other as to the man. ner adopted to reach the same declared end al At the opening of the administra- tion of Governor ONeal we find that In his message to the legislature by which the smith bill was passed. he criticises prohibition, calling it a 'wretched failure
 In this same message he scathingly i denounces both the Fuller and the Car michael bills as radical and unwise Legislation. He then advises certain Legislation, explaining very elaborately his ideas with reference to the liquor question. The legislature subsequently,, after many condemnations of these same bills, enacted statutes which , .would authorize the sale of iquor in cooperating in their bill many of the ideas suggested by the governors mes sage o,rhe Smith bill stands today as the exponent of the ideas expressed in the message that denominated the Fuller bin as the offspring of radicalism In this atmosphere the Smith bill was conceived.
 ..Its purpose is manifest; it's condi tion clear; its provisions ample for the accomplishment of its purpose. It pro- vides when sales can be made. where, "a whom. to whom licenses issued un- ae, what circumstances, form of in- ] .fdictment for it's unlawful use, method of trial what constitutes evidence, and in 2 fact, has all the earmarks of an inde- ], pendent bill, intended to supersede all previous laws on the subject. - tThese laws are as repugnaM to each other as the beliefs of the differ ent factors represented in their en- iactment The cause for which the ssFuller and Carmichael bills were en- acted being repugnant in this county, their operation is suspended. and the Smith bill is the sole repository of the