Elder v. State

DOWDELL, C. J.

The defendant was convicted on an indictment preferred against him for the violation of the statute approved August 13, 1907 (Gen. Acts 1907, p. 696), entitled “An act to prohibit the sale of hop-jack, hop-tea, hop-weiss, hop-ale, malt tonic, or other beverages, the product of maltose or gencose, at any place where the sale of spirituous, vinous or malt liquors are prohibited by law.” The indictment contained three counts. The third count having been charged out, on the conclusion of the evidence in the case, at the instance and request of the defendant, what we may have to say will have reference only to the first and second counts.

The first question presented for our consideration goes.to the constitutionality of the act under which the defendant was indicted and convicted. This question is raised both by demurrer to the indictment and by written charges requested to be given to the jury. The constitutionality of the act is assailed upon several grounds; the first being that there.was a failure to comply with certain' provisions of the Constitution in the passage of the act. The point taken is that the bill as passed by the Senate is not the same bill as the original bill introduced in and passed by the House, and that the bill as signed by the Governor is not the same as either the bill passed by the Senate or that passed by the House.

The bill in which the act in question had its inception was originally introduced into the House, and was known as “House Bill No. 928,” and bore the title hereinabove set out. The journal of the House shows (and this is not disputed) that there was a strict compliance with all constitutional requirements in its passage through that branch of the General Assembly. The journal of the Senate shows that in the “message from the House,” reporting the passage of House Bill 928, the word “glucose” appears in the title of the bill, instead of the word “gencose” as contained in the title of the bill as the same passed the House. This word “glucose,” as appears from the Senate Journal, was retained in the title to the bill through its course of passage in the Senate, up to and including the final vote upon third reading. The House Journal then shows that, in. the “message from the Senate” of the passage of the bill by that body, the word “gencose,” and not “glucose,” appears in the title of the bill as originally introduced into the House and passed by that body. There is nothing in the Senate proceedings to show that the bill, in its passage through that body, was ever changed by amendment made for that purpose, nor is there any pretense in argument that such thing was done. It further appears that in the title to the bill (House Bill 928), as signed by both the Speaker of the House and the President of the Senate, the word used is “gencose,” and not “glucose.” From this history of the passage of the hill through both houses, we are of the opinion that the word “glucose,” where it appeal’s in the Senate proceedings, is merely a clerical misprision, and, being such, will not affect the validity of the law.

The next point taken is that the journal of the Senate does not show a signing of the bill, as it passed the two houses, by the President of the Senate. This insistence is based upon the following recital in the journal of the Senate. “The President of the Senate, in the presence of the Senate, immediately after-their titles had been publicly read at length by the Secretary, signed the above Senate Bills, the titles of which are set out in the foregoing message from the House; the reading at length of said bill having been dispensed with by a two-thirds vote of a quorum of the Senate present.” Immediately preceding this recital, recoi’ded on the journal of the Senate, is the message from the House, which is as follows : “Mr. President: The Speaker of the House having signed the following House Bills, your signature thereto is requested.” Then follow the House Bills specified, included in which is the House Bill in question. It is evident that the words “Senate Bills,” employed in the recital from the journal above set out, in the connection and order in which they are used, are merely a clerical misprision, and that “House Bills” (and not “Senate Bills”) ’were intended.

The next point taken is that, in section 1 of the body of the act as approved by the Governor, the words “maltace” and “'«-encase” are used, instead of the words “maltose” and “gencose,” as employed in section 1 of the act as passed by the House and Senate. It is insisted in argument, for this reason, that the bill as passed is not the one signed and approved by the Governor, and, therefore is offensive to the Constitution. To- demonstrate that this is another clerical error, occurring in the enactment oí this law, it is only necessary to set out in full section 1 of the act, which is as follows: “That it shall be unlawful to sell, give away, or otherwise dispose of hop-jack, hop-tea, hop-weiss, hop-ale, malt tonic or any other beverage which is the product of maltace or gencase, or, in which maltose or gencose is a substantial ingredient, at or in any place where the sale of spirituous, vinous or malt liquors is prohibited by law.” It is evident, we think, from the context, that the words “maltose” and “gencose” were intended in the statute, where “maltace” and “gencase” are used. The words “maltose” and “gencose” are the ones employed in the title to the act. Moreover, when taking into consideration the fact that there are no such words as “maltace” and gencase” (and, we may add, we know of no such word as “gencose”), there can he no doubt that the employment of these words is a mere clerical error, and that only “maltose” and “gencose” could have been intended. Clerical errors, which are patently such on their face, will not operate to invalidate an otherwise valid enactment. It would be unreasonable to hold that the lawmakers intended to render nugatory a law of their own creation by the employment of meaningless words in its enactment.

The constitutionality of the act is further assailed upon the ground that the attempted legislation is not within the police power of the state and is an unwarranted invasion of the rights of the citizen. The argument is based upon the theory that the Legislature has no power to prohibit the sale of an article which is not injurious to either the health or morals of the people. If it should be conceded that the articles, the sale of which is prohibited by the act, are not in themselves injurious to health or moral's, still there can be no doubt under former decisions of this court, that to prohibit the sale of the articles mentioned is not without legislative competency. To prohibit the sale of malt liquors is undeniably within the police power of the state. The. exercise of this power by the Legislature, in the prohibition of the sale of malt liquor, is upon the idea of the conversation of public morals. To this end it must logically follow that it is equally within the police power of the state, through its lawmakers, to enact any and all laws in their wisdom necessary to prevent any evasion of the primary .purpose. If, in the wisdom of the Legislature, in order more thoroughly to prohibit the sale of malt liquor, which is known to be an intoxicant, and to safeguard against evasions of such law, it should be deemed necessary to prohibit the sale of any and all beverages containing as an ingredient “maltose,” a known constituent of malt liquor, we are unable to see why such legislation would not reasonably come within the exercise of the state’s police power.

In Feibelman v. State, 130 Ala. 122, 30 South. 384, it was said by this court, speaking through McClellan, C. J.: “It is common knowledge that most malt liquors are intoxicating and harmful when used excessively, and are capable of excessive use as a beverage. The sale of all such, of course, the Legislature has the poAver to prohibit. But if the prohibition should in terms go only to the sale of intoxicating malt liquors, there toould be left open such opportunities for invasions (evasions) of the lato and there would arise such difficulties of proof as that the lato could not be effectively executed; and the lawmakers having the undoubted power to prohibit and to prevent the sale of intoxicating malt liquors, and to enact to that end a law which can be executed so as to secure it, atid, finding that this cannot be accomplished without extending the prohibition to all malt liquors, whether intoxicating or not, such extension, necessary to prevent the sale of intoxiccmts, is as essentially the proper exercise of the police poioer as the inhibition with reference to intoxicants(Italics ours.) S'ee, also, the following cases: Dinkins v. State, 149 Ala. 49, 43 South. 114; Lambie v. State, 151 Ala. 86, 44 South. 51; Marks v. State, 159 Ala. 71, 48 South. 864; Eaves’ Case, 113 Ga. 749, 39 S. E. 318; O'Connell’s Case, 99 Me. 61, 58 Atl. 59. On the authority of the cases cited above, and for the reasons that we have stated, without hesitancy we reach the conclusion that the passage of the act in question is entirely within legislative competency, and not opposed to any of the rights of the citizen guaranteed by the Constitution.

The question of the repeal of the act here under consideration by the subsequent act, approved November 23, 1907 (Gen. Acts Sp. Sess. 1907, p. 71), commonly known as the “State-Wide Prohibition Law,” is also raised on the record; but we think that this point is not very seriously contended for in argument. The latter act contains a general provision of repeal of all laws and parts of laws in conflict with it, but no express repeal of the former act. That the act under consideration covers matters not covered by the state-wide prohibition law is plainly to be seen, and hence the two acts have different fields of operation and may consistently stand together, and without any conflict operate in harmonious conjunction to the accomplishment of the same general purpose.

Many of the questions reserved on the introduction of evidence and on the refusal of written charges requested by the defendant, and here presented on the record for our consideration, require no further discussion by us in detail, as the same can find an answer and ready solution in an application of the principles we have already stated above.

Dr. B. B. Ross, professor of chemistry of the Polytechnic Institute at Auburn, and ex officio state chemist, was examined as an expert witness in the case. Two bottles that were shown to have been sold by the defendant, one containing a liquid called “Mead,” and the other a liquid called “Schlitz-Fizz,” were analyzed by Dr. Ross. This witness testified that the liquid called “Mead,” as shown by his analysis, contained quantitatively 1.27 per centum of maltose, and that the liquid called “Schlitz-Fizz” contained 2.89 per centum of maltose. He further testified that 95 per centum, or more, of the liquids, as a whole, was water, and that the same together with the maltose and other ingredients, constituted the mixture a beverage. This witness also testified that the ingredient of maltose gave to it a sweetish taste and also a nutritive element. He further testified that, relatively speaking, maltose as a ingredient, compared with the whole, was small, but, when compared with the other ingredients going to constitute the drink a beverage, it was very large.

On this undisputed evidence, it certainly could not be said that maltose, as an ingredient in the makeup of the beverage, was not a substantial ingredient, within the meaning of the statute. On the examination of this witness as an expert it was 'entirely competent to show by him the nature and character of maltose, its taste, potency, and activity, as an ingredient of the beverage, as well as the other ingredients, and their nature, kind, and character, entering into said liquids examined and analyzed by him. We fail to discover that the trial court committed any reversible error in the admission of evidence on the examination of this witness.

A number of the charges refused to the defendant find substantial duplication in charges given' at the request of the defendant, and hence no error was committed in the refusal of such charges.

We have examined the written charges refused to the defendant, and that are here insisted on in brief and in argument by counsel for appellant. As above stated, the questions raised by these charges are covered by the principles that we have already laid down, and in their refusal no reversible error has been committed.

Finding no error in the record of which the appellant can complain, the judgment appealed from is affirmed.

Affirmed.

Denson and McCLelean, JJ., concur