
    Beauvoir Club v. The State.
    
      Selling Liquor on Sunday.
    
    (Decided Jan. 24th, 1907.
    42 So. Rep. 1040.)
    1. Statutes; Subject and Title.- — The Act of Feb. 23rd, 1903 (Gen. Acts 1903, p. 64) entitled “An act to prohibit the sale of liquor on Sunday” is not violative of Section 45, because it includes provisions providing a penalty for keeping open a barroom or other places for the sale of liquor on Sunday, the same being germane to the subject.
    2. Intoxicating Liquors; Offenses; Statutes; Oonstructon. — The Act of Feb. 23rd, 1903 (General Acts 1903, p. 64) prohibits a private social club from keeping open on Sunday its club room for the sale of liquor to its members.
    3. Constitutional Law; Manner of Raising Question. — The Club set up by way of defense that the only disposition made by it of liquors on Sunday was to its members, and that, the confirmation of its incorporation as such club (Acts 1896-7, p. 1160) gave it the right to do so. The state interposed a demurrer to the jplea averring that the said act was unconstitutional. Held, that though seemingly a general statement, the demurrer presented the constitutionality of the statute.
    4. Statutes; Special Statutes. — So much of the act confirming the charter of the Beauvoir Club (Acts 1896-7, p. 1160) as enables it to provide for and dispose of intoxcating liquors to its members without making the same a sale, is obnoxious to Seo tion 23 of the Constitution of 1901 and void.
    5. Criminal Lato; Sustaining Demurrer to Special .Pleas; Review. Demurrers sustained to special pleas, which, if good, present no matter not available under the plea of not guilty, which was interposed, and on which the ease was tried, is harmless error and not reviewable.
    6. Same; General Issue; Special Pleas. — The special plea alleging that the only disposition made by the club of intoxicating liquors on Sunday was to its members, and that it had a right to do this, sets up matter available under the plea of not guilty, and the sufficiency thereof may be tested by objections to evidence adduced in support of it.
    
      7. Witnesses; Privilege of Witnesses; Who Entitled, to Claim.- — The privilege of a witness not tq give evidence incriminating himself is personal and cannot be claimed by a party to the suit not a witness.
    8. Criminal Law; Appeal; Party Entitled to Allege Error. — Where the witness claims the privilege not to incriminate himself, and the court holds that the witness must answer the question, and witness does so without further protest, such evidence is not illegal as to accused, notwithstanding accused objected, and accused is not entitled to review the action of the court in requiring a witness to answer.
    Appeal from Montgomery City Court.
    Heard before Hon. W. H. Thomas.
    The Beauvoir Club was convicted of 'keeping open its clubroom for sale of intoxicating liquors on Sunday, and it appeals.
    Tbe indictment is set out in tbe opinion. Demurrers were interposed as follows: “(1) Said.indictment fails to state at tbe time of tbe commission of tbe offense charged tbis defendant was a merchant or shopkeeper. (2) That so much of tbe act approved February 23,1903, entitled ‘An act to prohibit tbe sale of liquor on Sunday’ (Gen. Acts. 1903, p. 64), as undertakes to prohibit and punish tbe keeping open on Sunday a barroom or other place for tbe sale of spirituous, vinous, or malt liquors, is unconstitutional in tbis: That said prohibition is not clearly express in its title. (3) Tbe act approved February 23, 1903, entitled ‘An act to prohibit tbe sale of liquor on Sunday,’ is unconstitutional in tbis: Said act contains more than one. subject. (.4) Said indictment charges no offense known to tbe law of Alabama.” These demurrers being overruled, tbe defendant filed pleas as follows: “(1) Not guilty. (2) That tbe only disposition made by this defendant of spirituous, vinous, or malt liquors on Sunday was exclusively to its members, and tbe defendant avers it has tbe right to so dispose of spirituous, vinous, or malt liquors to its members on Sunday under the third section of an act of tbe Legislature approved February 17, 1897, entitled ‘An act to confirm tbe incorporation of tbe Beauvoir Club, of Montgomery, Alabama, and to enlarge its powers and capacities’ (Acts 1896-7, p. 1160), which said third section of said act is hereby referred to and made a part hereof, and is specially pleaded as a defense to this action. (Here follows third section of act referred to.) (3) That this defendant is a private social and literary club, inaccessible to the public-. (4) That the disposition by this defendant of spirituous, vinous, or malt liquors is at all times confined to its own limited membership of less than 200 members. (5) That this defendant is not engaged in the business of a liquor dealer. (6) That this defendant keeps open its clubrooms on Sunday for the social and literary uses of its members, and not for the sale of spirituous, vinous, or malt liquors.” Demurrers Avere interposed and sustained to these pleas.
    Marks & Sayre and Rushton & Coleman, for appellant.
    — The only tAVO statutes applicable to .the offense charge is section 5542 of the Code, or the act approved Feb. 23rd, 1908, “To prohibit the sale of liquors on Sunday.” The indictment is fatally defective if based upon section 5542 of Code 1896. — Sparrenberf/er’s Case, 53 Ala. 481; Snider’s Case, 59 Ala. 64. The 3 and 4 grounds of demurrer to the indictment raise the question of the constitutionality of the act of 1903. 1st. The first clause creates a iigav misdemeanor separate and distinct from the misdemeanor created by the second clause, and predicated upon a different state of facts, and is not clearly expressed in its title, “To prohibit the sales of liquor on Sunday.” 2nd. It contains more than one subject, (a) the keeping open a bar room or other place for the sale of liquors and a selling by a liquor dealer of liquors on Sunday. — Dixon’s Case, 76 Ala. 89; Ballentyne v. Wick-ersluim, 75 Ala. 541; Miller v. Jones, 80 Ala. 89; Yohn v. Marritt, 117 Ala. 485; State v.- Davis, 130 Ala. 148.
    The fifth clause of the demurrer is based upon the grounds that if constitutional, the first clause of the act of 1903 has no reference to social clubs. — Dixon’s Case, supra; ILanassas Club v. Mobile, 121 Ala. 561; Lakeview v. Ocmetcry Assn., 70 Ill. 192; 22 A. & E. Ency. Law, 916; Tiedman Police Powers, 4, 5.
    The first ground of demurrer to the second plea is .a general demurrer and bad. The second, third, fourth, fifth and sixth grounds of demurrer are bad. — Bailen-
      tyne v. Wicker sham, supra; Ingram v. G oigan, 16 Am. St. Pep. 228; People v. Potter, 47 N. Y. 397; State v. Boston Glub, 45 La. Ann. 585; Tenn. Olub v. Dioyer, 47 Am. St. Pep. 298; Piedmont Glub v. Commonwealth, 87 Va. 540; Columbia Glub v. McMaster, 35 S. C. 1; Borden v. Montana Olub, 24 Am. St. Rep. 27. A general law does not repeal a special law without a particular provision to that effect. — Maxwell v. The Slate, 89 Ala. 150; Houghton v. Tyson, 38 So. Rep. 761. The validity of the club charter is governed by the Constitution of 1875, under which the Legislature was the sole judge of what needs demanded special legislation and its discretion could not be inquired into by the courts. — Olark v. J ack, 60. Ala. 271.
    Massey Wilson, Attorney General, for State.
    — Indictment is found under the general acts of 1903 and the first two grounds of demurrer to the indictment are patently bad. The third and fourth grounds are also bad.— Borck v. The State, 39 So. Rep. 580. The fifth ground of demurrer is bad. — Martin v. The State, 59 Ala. 31; Jacobi v. The State, 59 Ala. 71. The court rightly sustained the demurrer to the defendant’s pleas. A mere statement of the effect of the act pleading is sufficient to show that that part is not comprehended in its title.— Black v. The State, 144 Ala. 92; Bell v. The State, 115 Ala. 87; Lindsey'v. Loan Association, 120 Ala. 156. In Martin’s Oase] supra, it was held that a disposition of liquor by a club to its members constituted a sale. The fourth grounds of demurrer to the plea is sustained by the case of Jones v. Jones, 55 Ala. 443. The fifth ground of demurrer was good. — 6 A. & E. Ency. of Law, (2nd Ed.) 970. The defendant could not claim the benefit of the exemption sought as to the testimony of Jackson. It is a personal privilege to be asserted by the witness alone. — Southern Ry. Go. v. Bush, 122 Ala. 470.
   DENSON, J.

— The indictment is in the following language: “The grand jury of said county charge that, before the finding of this indictment, Beauvoir Club, a corporation, did on Sunday unlawfully keep open a clubroom for the sale of spirituous, vinous, or malt li-quoits, against tbe peace and dignity of tbe state of Alabama.” It is founded on tbe act of tbe Legislature entitled “An act to prohibit tbe sale of liquor on Sunday,” approved February 23, 1903 (Pampb. Acts 1903, p. 64). Tbe defendant demurred to tbe indictment on tbe ground, among others, that “so much of said act as undertakes to penalize tbe keeping open of a barroom or other place for tbe sale of liquors on Sunday is violative of tbe Constitution, in that tbe saíne is not clearly expressed in tbe title of tbe act.” In respect to this act we said in a former case: “Tbe title of tbe act is in a sense general and contains but one subject, ‘To prohibit tbe sale of liquor on Sunday.’ This is clearly expressed. Everything contained in tbe several sections is directed to tbe subject of tbe law as expressed in tbe title, and we think plainly and unquestionably germane and referable to tbe subject. Whenever this is tbe case, tbe act cannot be said to be offensive to section 45, art. 4, of tbe Constitution.”—Borck’s Case, (Ala.) 39 South. 580; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224. So it seems that this contention of tbe defendant is concluded by Borok’s Case. Being satisfied with that decision, and in adherence to it, we bold that tbe trial court properly overruled tbe third and fourth grounds of tbe demurrer.

But it is insisted that, even though tbe first clause of the act, tbe one on wbdeh the indictment is based, is a valid enactment, yet it has no reference to private social clubs, and therefore tbe indictment charges no offense. Tbe argument by the defendant in support of tbe insistence is that tbe act is a police regulation; that such regulations are made with reference to tbe conduct of individuals in its bearing on tbe public; that to promote the public welfare is tbe sole justification for tbe curtailment of personal liberties and tbe regulation of individual acts; that tbe place is kept open, not for the benefit of the public, but of. tbe members of tbe club; that, if sales of liquor are made on Sunday by tbe club to its members in its rooms, this is not an act or acts which affect tbe public welfare — there is no point of contact with tbe public — and, therefore, not within tbe legitimate exercise of tbe police power. There .can be no doubt that the legislation in question must he referred to the police power of the Legislature. Whatever differences of opinion may exist as to the extent and boundaries of this power, and however difficult it may be to render a satisfactory definition of it, there seems no doubt that it does extend to the protection of the lives, health, and property of citizens, and the preservation of good order and the public morals. These objects belong emphatically to that class which demand the application of the maxim, “solus popuU suprema lew,” and they are to be attained and provided for by such appropriate means as the Legislature may devise; and while the determination of the Legislature as to what is a proper exercise of its police powers in relation to such objects is not final or conclusive, but is subject to the supervision of the courts, yet the traffic in intoxicating liquors is universally recognized as a proper subject for police regulation, and may be controlled, restricted, or even totally prohibited, without violating any constitutional right.—Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; 23 Cyc. p. 65, and cases in notes 64, 65, and 66.

So far as the demurrer to the indictment is concerned, this court is committed to the doctrine that a transaction whereby an incorporated social club sells intoxicating liquors to one of its members is a sale technically and within the meaning of a statute prohibiting the sale of vinous, spirituous, or malt liquors without a license.—Martin’s Case, 59 Ala. 34; Manassas’ Case, 121 Ala. 561, 25 South. 628. The evil intended to be corrected by the act in question is the keeping open on the Sabbath day of barrooms or other places where liquors are furnished and drunk,, and it can make no difference whether few or many persons can obtain admission and buy or obtain the liquors in the club, or whether other people may or not see them buy the liquor, or for what other purpose the place is being operated, if the fact remains, as it does (on the demurrer), that intoxicating liquors are sold on the Sabbath day.—State v. Gelpi, 48 La. Ann. 520, 19 South. 468; Mohrman’s Case, (Ga.) 32 S. E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74. It is also settled law that it is within the legitimate exercise of the police power for the Legislature to enact laws on tbe subject of abstaining from worldly employments on Sunday, and especially to prohibit the sale of vinous, spirituous, or malt liquors on Sunday, and keeping open places where such liquors are sold Whether the sale is engaged in as a livelihood or profit, or whether sales are made publicly or private, or not at all, is of no consequence, if the places are kept open for such sales. — Frolickstein’s Case, 40 Ala. 725; Dixon’s Case, 76 Ala. 89; Wadsworth v. Dunnam, 117 Ala. 661, 23 South. 699; Manassas’ Case, 121 Ala. 561 25 South. 628; Jebeles’ Case, 131 Ala. 41, 31 South. 377; Martin’s Case, 59 Ala. 34; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224; State v. Common Pleas, (N. J.) 13 Am. Rep. 422; State v. Gelpi, 48 La. Ann. 520, 19 South. 468; Mohrman’s Case, (Ga.) 32 S. E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74; State v. Anibs, 20 Mo. 215; Palmer’s Case, 2 Or. 66. In the light of the past and current events we encounter no difficulty in reaching the conclusion that keeping open a place for the sale of vinous, spirituous, or malt liquors on the Sabbath (or any other day) is hurtful to the comfort and welfare of society, and as a matter of consequence that the Legislature, in enacting the law in question, was well within the legitimate exercise of the police power, and the fifth ground of the demurrer was properly overruled. We remark that it.may be that we should have treated the fifth ground as a “speaking demurrer,” as nothing appears on the face of the indictment to show that Beauvoir Club is any more than an ordinary private corporation.

We deem it unnecessary to announce a conclusion in respect to, or even to give consideration to, the suggestion by appellant’s counsel that its clubrooms are not within the meaning of the term “barroom.” See Mohrman’s Case, supra; also Jackson’s evidence in the instance case. The first and second grounds of the demurrer to the indictment are so manifestly without merit as to. require no further consideration.

The defendant sought to defend against the indictment under the third section of an act of the Legislature approved February 17, 1897, entitled “An act to confirm the incorporation of the Beauvoir Club of Montgomery, Alabama, and to enlarge tbe powers and capacities of said club.” — Acts 1896-97, p. 1160. Tbe club was incorporated nnder tbe general statutes of tbe state,"and by tbe third section of tbe confirmatory act, above referred to, amongst tbe additional powers conferred is tbe following : “To provide for and dispose of, to its members, cigars, cigarettes, tobacco, spirituous, vinous and malt liquors and sucb disposition shall not constitute a sale thereof, but shall be held and treated as a consumption by sucb members of their property.” Tbe act is assailed by tbe state on constitutional grounds. Tbe trial court held that it is obnoxious to the Constitution. Several grounds of objection to tbe act are specifically pointed out by tbe demurrer to tbe plea setting up tbe act as a defense, but tbe first ground of tbe demurrer is in this language: “That tbe provisions of tbe charter of tbe defendant are unconstitutional and void.” Though seemingly a general statement, this has been held by this court a permissible way of presenting tbe constitutionality of a statute, and, if it be found that tbe statute clearly contravenes any provision of tbe organic law, under sucb an objection tbe ruling of tbe trial, court.should be sustained.—Montgomery v. Birdsong, 126 Ala. 632, 28 South. 522; Shell Road v. O’Donnell, 87 Ala. 376, 6 South. 119.

It is quite apparent that the provision in section 3 of tbe confirmatory act, to tbe effect that tbe disposal of vinous, spirituous, and malt liquors by tbe club to its members shall not constitute a sale, was injected into tbe act to avoid tbe effect of tbe decision made by this court in 1877 in tbe case of Martin v. State, 59 Ala. 34, wherein tbe court, speaking through Stone, J., held that furnishing said liquors to its members by a social club (corporation) for a price paid by tbe member.constituted a sale of sucb liquors. This decision has neyer been overruled, and remains tbe general law of tbe state applicable to sucb disposal of liquors by clubs. There is no general statute declaring that sucb disposal of liquors by social clubs shall not constitute a sale, and a social club organized to-day under tbe incorporation laws of tbe state would not be exempt from tbe law as declared in. Martin’s Case, nor is any other club that bas been heretofore organized without such special provision exempt from it. In the Martin Gase it appeared that Martin, in disposing of the liquor, was acting as agent of the Standard Club, a club incorporated in the city of Montgomery for literary and social purposes, so that, if the provision in the defendant’s charter is valid, we have two clubs organized for the same purposes, of like kind, and in the same city; hut the one operating under a charter obtained under the general laws, if it disposes of liquors belonging to the club for a price paid, makes a sale, while the other, though doing identically what its neighbor in the same locality does, only puts it in the power of the member of the club to “consume his own property,” and is not amenable to the laws as declared in Martin’s Gase. The first one, under the law under which the defendant is indicted, would be guilty of a criminal offense, while the other would not, though the acts committed are identical. Those who make the laws “are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.”—Locke on Civil Government, § 142. “This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments.”—Cooley’s Const. Lim. (2d Ed.) 891.

Section -23 of article 4 of the Constitution of 1875 provided that the operation of no general law shall be suspended by the General Assembly for the benefit of any individual, corporation, or association. It may be that, even under that section, it was within legislative competency to prescribe that the disposal of vinous, spirituous, or malt liquors by incorporated social clubs to their members for a price paid should not constitute a sale (a question we do not decide). To be valid, however, such a Iuav should be general in its operation, at least to the class or locality to which it applies; for “an act which should select a person or corporation and grant unto him or it immunity from the provisions or operation of a general law, or subject him or it to peculiar rules, or impose special obligations or burdens from which others in the locality or class are exempt, would be unconstitutional. The Legislature may suspend the operation of the general laws of .the state; but, when it does so, the suspension must be general, and cannot be made for individual cases.”—Cooley’s Con. Lim. (2d Ed.) *390. Special privileges are always obnoxious, and as a rule of construction are always to be leaned against as probably not contemplated or designed. It is obvious that a special privilege is conferred on the defendant by its charter. No club in the same category with defendant, with respect to the purpose of its organization, can dispose of liquors without being amenable to the law as declared in Martin’s Case; in other words, the exemption from the rule of law declared in that case is peculiar to the defendant. There may be other clubs that have special charters granted by the Legislature with a like provision, but they are in the same category with the defendant as to the special privilege and the suspension of the general law. Of such charters we have no judicial knowledge, and, if there are such, that fact would not change the rules of construction' adverted to. It is our opinion that that part of the defendant’s charter respecting the disposition of liquor to its members not constituting a sale is clearly obnoxious to the twenty-third section of article 4 of the Constitution of 1875, and the court properly sustained the demurrer to the plea setting it up as a defense.

It is unnecessary to discuss other points made by the demurrer as to the constitutionality of the act. There are other special pleas to which demurrer was sustained, but neither of them presents any matter in defense which, if good, might not have been proved under the plea of not guilty, which was interposed, and on which the case was tried. Indeed, the matter set up in 'the second plea, which we have discussed at length, might have been brought forward under the plea of the general issue, and its sufficiency tested by objection to the evidence; but we have treated the demurrer to that plea because it presented the same question that would have been presented by objections to the act, and as a matter of convenience. We give no further consideration to the special pleas.

The next question presented by the record relates to the action of the court in requiring the state’s witness Jackson to testify in regard to sales of liquor by others than bimself, notwithstanding the witness claimed the privilege not to testify. If it be conceded that the matters about which the witness claimed the privilege not to testify were incriminating, yet we think the ruling of the court -cannot he presented here for review by the defendant. It is undoubtedly the law that a witness cannot he compelled to answer any question the answer to which would tend to incriminate him, or would constitute a necessary link in the chain of testimony sufficient to convict him of a criminal offense.—Ex parte Boscowitis, 84 Ala. 463, 4 South. 279, 5 Am. St. Rep. 384; Alston’s Case, 109 Ala. 51, 20 South. 81. But the privilege is personal to the witness, and cannot be claimed for him by a party to the suit ( Elliott on Ev. § 1007; 30 Am. & Eng. Ency. p. 1165) ; and when it is claimed by the witness, and the court rules the witness must answer, and he does answer without further protest from him, notwithstanding the defendant objects and excepts to the court’s ruling, the evidence is not illegal as to the defendant, and he cannot review the action of the court here. The witness might have persisted in his refusal to answer, and, if held in contempt, he (the witness) might present the action of the court for review by certiorari, as was done in the Boscoioits Ease, supra. .

On the undisputed evidence in the case, it results, from what we have said and the conclusions reached and announced in reference to the law of the case, that the defendant -was guilty as. charged. Consequently the court properly gave the general affirmative charge with hypothesis for the state, and committed no error in refusing the affirmative charge requested by the defendant.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.  