The Birmingham age-herald., 1912-07-13
Says Excise Boards Action Has No Basis in the
 Smith Bill
CHAIRMAN AGEE
 MAKES STATEMENT
States Action of Commission Was Legal-Expected That an Appeal Will Be Taken-Text of
 the Decision

Holding that the excise commission or Jefferson county had no authority to re- yoke the license of c. w. DAVIS the wholesale liquor dealer on First ave nue, whose place of business was closed recently by order of the commisslon' Judge Hugo l.. Black of the recorder s court of the city of Birmingham yes treday discharged Davis, who was charged doing business without license.
 Alleging that Davis supplied blind tigersa with liquor, the excise commission revoked his license a day or two ago. and notified the chief of police and the sheriff of their action. After being closed a few days MT. Davis reopened his place of business and at the first sale made was arrested and charge of doing busi- ness without a license was docketed against him.
 The case came up before Judge Black last Tuesday but was continued as Allen S, Bell, the defendants attorneys, filed lengthy brief in the case which the judge took under advisement, rendering his de- cision yesterday adversely to the excise commission.
 DeIenudni SOHbGutiOH
 The contention of the attorneys for the defendant was that Davis had the legal right to do business in the city as the ac- ton of the excise commission in reVok- ing his license was without authority In law and therefore. his license was still in force. In rendering his decision yester- day Judge Black practically agreed with every contention of the defendants at torneys and dismissed the case
 Judge Black in his opinion held that the excise commission could not make rules not in full keeping with the provisions of the Smith bill and that being made such rules were void and could not be- enforced. It is understood that an ap- peal will be taken
 In connection with the decision Chair man Agee of the excise commission said yesterday afternoon:
 .Wc are undisturbed by the action of Judge Black. We are acting under pro- visions of the Smith bill which were up- held in every particular by the supreme court. We expect the sheriff to do his full duty in respect to MT. Davis and all such others. We have performed our complete duty in connection with the Davis case.'
 Judge Blacks Opinion
 The opinion of Judge Black concludes'
 "This record fails to show notice issued to defendant by the excise com mission as contemplated by the statute, anprising him of the charge made. and for aught that appears therein the ex- else commission may have attempted to revoke his license upon grounds not au- thorized by statute.
 "In addition to the reasons above as- signed, there was evidence introduced showing the testimony before the excise commission upon which this revocation was made.
 "Wbile it is true that if the record itself shows inrisdicional facts the judgment would be void, and not subject to col lateral attack, it is possible that where these facts are not shown, evidence IS ad- missible, that introduced in this case shows that the excise commission at- tempted to revoke defendants license be- cause of his having sold liquor to a blind tiger This appears to be in viola ton of a rule promulgated by the ex- else commission. However laudable such rule may be, or whatever good purpose might be subserved by it's enforcement, unless the commission was given arbi- trary powers in the Smith bill. or were given powers of leSlSlatlOn, tne NlOldtloil of such rule would not furnish legal excuse for the revocation of a license.
 ''The supreme court has expressly held in the Crumpton case above cited, that the commission is not a legislative body; that if it were it might be unconstitu- tional.
 .'Section 20 of the Smith bill refutes any assumption of arbitrary power, in that 1t defines the limitations of the commission in the revocation of a saloon license.
 Ut is therefore seen that if the parol evidence introduced is to be considered, it shows an unauthorized revocation of the defendants license, in that the at tempted revocation was for sale of whisky by a wholesale dealer to a blind tiger which is not violation of any provision of the Smith bill. This again shows the necessity and great benefit to be derived by license from, the record of the excis commission, if it contains the notice, charge. a summary of the evidence and judgment If the record in this case contained these things it might be reviewed by common law certiorari, and the defendants rights defined. It can be seen that with or withoSt the parol testimony, if the above conclusions of law are correct, that the revocation of de- fendants license was unauthorized and void.
 ''This being true, the city has failed to make out it's case, and the defendant is discharoedv v