The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1921-05-16
SEIZURE DECISION
MEANS A SERIOUS
SETBACK TO LAWS
Attorney General Will Move for
a Rehearing In the Case,
With Hope of a Change,
as Court Was Divided
BY FRED III. GORMLEY
Montgomery Bureau, The Age-Herald
221-2 First National Bank Building

Montgomery, May l5-(Specal.) =
Fearing a serious setback in the en-
forcement of the prohibition laws II the
decision of the supreme court rendered
Thursday in the case of Walter Carel
ct. al. VS.. state, from Morgan county,
is not changed, Attorney General Har-
well G. Davis will file an application
for rehearing in an effort to have the
court withdraw the opinion holding
cannot be seized and condemned by
the state unless it has actually been
used in the transportation of contra
band liquors. The court was divided,
four and three, on the decision. JUS
tice Miller prepared the opinion for
the majority and it was concurred
in by Chief Justice Anderson and AS
sociate Justices Mcclellan and Sayre.
Justice Gardner prepared a dissenting
opinion, which received the approval
of Associate Justices Somerville am
Thomas.
The decision was one of the chief
topics of conversation at the capitol
today because of Its far-reaching effect.
Two suitcases containing "a quarts o.
liquor each were removed from the
automobile which was parked at the
railroad station at Decatur, according
to the evidence. But the car had not
actually moved when the officers seized
the liquor and car. The supreme court
held that it could not be seized and
rendered decision sustaining the de-
murrers nterposed by Carey and the
other defendants, which had the effect
of dismissing the condemnation pro-
ceedings
In his majority opinion Justice Mil
Ter said: This bill, as amended, AYERS
that these defendants owned the car
it does not aver that the car had been
used by them for the Illegal conveying
of prohibited liquors from one poin.
In the state to another point in the
state. Does 1t aver that the car is
used for the Illegal conveying. of pro-
hibited liquors from one point in the
state to another point in the state?
This is essential 1t must he clear In
the bill and clear in the proof to get
the condemnation of the court and for
feiture to the state of this car.
The car is standing still, defend
ants place the whisky therein, it is no.
moved thereafter before the car and
whisky are seized and the defendants
arrested by an officer of the law. The
whisky Is not conveyed in the car; the
whisky is not transported in the car
by them or either of them. The car is
not moved by either defendant from
one point to another point with the
whisky. 1t is stationary The car
must be used in Illegal conveying OF
the whisky from one point to another
before it can be forfeited There can
be no conveying or transporting by a
car of whisky without some movement
of the car. There can be no conveying
or transporting of whisky by a car
from one point to or toward another
point in Alabama without any move-
ment of the car
In his opinion, opposing the decision Of
the majority. MIR. Justice Gardner said:
THE decision in this case has injected
a new issue into the condemnation
statute. Had there been one revolution
OF the wheels of the car, or even the
slightest movement, as I understand the
majority view, then it's condemnation
could have been effected. The prohibition
laws disclose purpose on the part Of
the legislature that there Should be much
vigilance on the part of the law enforc
Ing officers and yet under this decision