SOUTHERN PROHIBITION AND THE COURTS

By James Hancock

The prohibition States of the South have become famous for revolutionary laws and strained court decisions in their efforts to enact and enforce sumptuary legislation, so much so that they have attracted more or less attention all over the country.

No prohibition law has ever been able to stand alone. Ten years after the enactment of original State-wide prohibition laws, we find State legislatures enacting legislation intended to brace and strengthen the original acts.

Courts under the whip of the Anti-Saloon League have rendered opinions and changed rules as revolutionary as some of the so-called temperance legislation itself. If an act of the legislature fails to carry out the wishes and intentions of the Anti-Saloon League leaders, the latter center their influence and energies on the courts to have laws construed to their liking. These policies have been carried to such an extreme that the best constitutional lawyers in the southern States can not with safety advise their clients concerning the many questions raised by prohibition legislation.

Lawyers, of course, know what a court held last year on a given point, but they are in the dark as to the length of time a decision will be permitted to stand. Not very long ago, for instance, one of the ablest constitutional lawyers in Tennessee received a letter from a brother lawyer in Mississippi seeking advice in a lawsuit then pending in the courts of his state, in which he was counsel for a brewer who was trying to sell a non-intoxicating malt beverage in that State. The Mississippi lawyer explained the points at issue and the position he had taken for his client. The Tennessee lawyer replied about as follows:

"All of the law and a majority of court decisions are on your side, but my experience in trying lawsuits involving prohibition

laws is that we cannot depend upon courts to follow the wellbeaten paths. I can advise you confidently how our courts will hold on questions involving the rights of the citizen to own and sell land, cattle, hogs, corn, wheat, and so on; but as to what they may decide in a case in which a prohibition law is to be construed, I must in sincerity say to you that I hesitate.”

Under the plain letter of the Mississippi law the brewer had a legal right to sell his malt extract in that State, but the courts barred the beverage on the ground that, while the sample submitted would not violate the law the next sample might do so, and, in the interest of safety, the product must be denied sale within the State. Plainly, therefore, the Mississippi courts wrote a meaning into the prohibition law of that State that the law itself did not contain or even intimate.

A somewhat similar opinion was rendered in a Tennessee case. The "Manufacturers' law" of Tennessee prohibits the manufacture of liquors for sale within the State. Fearing that this law would be declared null and void on the ground that it might interfere with interstate commerce, the same prohibition Legislature that passed it solemnly enacted that nothing in the "Manufacturers' law" should be so construed as to conflict with interstate commerce laws of congress.

A noted distiller, taking the Legislature at its word, began manufacturing liquor for interstate shipment. He was indicted for violating the Manufacturers' law. The trial court charged the jury trying the case in substance that, while the Manufacturers' law had probably not been violated in the present instance, there was nothing in the evidence to show that the defendant distiller did not intend to violate the law at some future time, and that he must be convicted. The defendant was convicted and the Supreme Court of the State upheld the verdict of the lower court.

Here was another instance in which the courts wrote into a prohibition law a letter and meaning that the law itself did not contain. Wholesalers, finding that they could not manufacture liquors in Tennessee, instituted suits to ascertain where the State's authority ended and where the rights of interstate commerce began. After

much expensive litigation, some of it extending to the United States Supreme Court, the latter court setting aside an important opinion of the State courts, it was finally determined that a wholesale liquor dealer under the Tennessee prohibition laws may maintain a situs within the State from which to conduct an interstate business. However, he must purchase his stock from distillers in some other State. He cannot manufacture it in Tennessee.

In the quite recent litigation at Seale, Ala., we find another record suggesting, at least, prejudice on the part of the courts against defendants indicted for violating prohibition laws. The Attorney-General of Alabama seized a large stock of liquor at Girard, the stock being valued at about $400,000 wholesale price. The Attorney-General held that he had ample authority under the Alabama prohibition laws to immediately destroy all of this liquor. Governor Henderson, however, held that the Attorney-General could not lawfully destroy the stock without a court order. Suit was then instituted by the Attorney-General's office to determine the matter. The circuit court of Russell county, in which Girard is situated, held for the Attorney-General, but the owners of the liquor appealed to the Supreme Court of the State. The appeal automatically stopped the Attorney-General. Under the rules of the circuit court the defendant owners of the liquor had thirty days. in which to perfect their appeals, making their bonds, etc. Temporarily the civil case rested here.

The Attorney-General immediately moved for a special term of court to indict the Girard liquor owners for violating the prohibition laws. The chief justice of the Alabama Supreme Court designated a supernumerary circuit judge from another part of the State to sit during this special term of court, and Solicitor Hugo Black of Birmingham was appointed to assist the Attorney-General in the prosecutions. When the cases against the defendants were called some of them did not answer, being away in Florida on an alleged fishing trip. Their bonds of $250 were declared forfeited.

Solicitor Black the day following this incident made a motion that the defendants, being fugitives from justice, had forfeited their standing in the courts of Alabama and could not, therefore, perfect their appeals in the civil cases; that the appeals had been automatic

ally stopped by their abscondence. He also made the point that nothing then intervened between the liquor at Girard and the sheriff. The court upheld both motions in the face of violent objection by counsel for the defendants, and the sheriff was ordered to proceed to destroy the liquor. By the time he had destroyed some $200,000 worth of the liquor, the appeals were perfected and the court ordered the sheriff to desist.

Counsel for the liquor owners contended that the court being a special and extraordinary term did not have authority to set aside the rules of the regular circuit court, which had given the owners thirty days in which to perfect the appeals; that inasmuch as the thirty-day limit had not expired, the owners were taken unawares and that their property had been destroyed without due process of law. All of these contentions were brushed aside by the presiding judge. The fact that after half the liquor had been destroyed before the appeals were perfected, that the court stopped the destruction of the remainder, has been cited as evidence that more or less prejudice existed in the mind of the court against the defendants. This controversy will be fought out before the Supreme Court of Alabama, and most likely before the United States Supreme Court.

If one leaves the field of litigation involving the rights of wholesalers under prohibition laws and enters the field of the large retail traffic in prohibition States, he encounters probably more surprising pieces of legislation and court decisions than he finds elsewhere. It has already been laid down as a self-evident fact that no prohibition law has been able to stand alone. It must have bracing and strengthening legislation, and, in addition, the friendship of the courts. Much of this legislation to re-enforce prohibtion laws, and many court decisions, form a most interesting study to the man of an investigating turn of mind.

Tennessee probably leads all of her southern sisters in the matter of enacting what have come to be known as "fool laws." First, it was the "nuisance" law which prohibited the property owner from renting his property to a saloon keeper, and defining a saloon as a nuisance to be suppressed by law. After a trial of more than a year, this law failed to meet the expectations of its friends. It died a natural death-no longer respected by its parents. Then came the

"ouster" law, which has caused more disorder in Tennessee than any law ever written into the statutes of that State. Under this law if the officers of the law do not enforce a prohibition law satisfactorily to the leaders of the Anti-Saloon League, they may be removed from office on the petition of citizens.

While the ouster law of Tennessee does not mention the matter of trial by jury, the constitution of the State clearly provides that when a citizen is accused of a crime that he shall be tried by a jury of his peers. Mayor Crump of Memphis demanded trial by jury when he was arraigned under this law for alleged failure to enforce the prohibition law. He was denied the right, and the Supreme Court of the State upheld the denial of the lower court. An officer of the law is, therefore, denied the right of trial by jury for an offense against a prohibition law, but is allowed and granted that right in any other contingency. The ouster law assumes that every suspect is guilty, while all other criminal laws of the State assume that he is innocent until convicted.

In construing the ouster law, the Tennessee courts have entered new fields and given new meaning to the "duties of law officers." Sheriff Riechman of Shelby county was cited to show cause why he should not be removed from office for failure to enforce the prohibition law. The lower court held that there was nothing in the evidence to show that this sheriff had been derelict of duty and decided the case in his favor. But, for the first time in history, so far as records show, the State appealed from this decision-an appeal by the State from a decision in a criminal case! The supreme court reversed the lower court and removed Riechman from office.

In deciding this case, the Supreme Court, with three special judges on the bench in the place of some regular judges who were sick, laid down another new doctrine in Tennessee jurisprudence. The court held that it was the duty of a sheriff to raid any place where he had reason to suspect that liquor was being stored for sale and to arrest the owner or occupant of such place without a warrant. He must move upon the strength of suspicion alone. Furthermore, if private citizens "suspect" that liquor is stored, or being sold, in violation of law, in any place, it becomes the duty of the sheriff to invade that place without a warrant, seize whatever liquor he may