State v. Cumberland Club

136 Tenn. 84
CourtTennessee Supreme Court
DecidedSeptember 15, 1916
StatusPublished
Cited by29 cases

This text of 136 Tenn. 84 (State v. Cumberland Club) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cumberland Club, 136 Tenn. 84 (Tenn. 1916).

Opinion

Mr. Chief Justice Neil

delivered the opinion of the Court.

These cases were heard together, as presenting the question of the constitutionality of chapter 54, Acts 1915. In order to present the question it will be necessary to quote only the title and the first section of this act. They are as follows;

[88]*88“An act to prohibit persons, clnbs, associations or lodges from storing, keeping, distributing, or in any way disposing of liquor containing more than one-half of one per cent, alcohol, on the premises of any association, lodge, or club and providing penalty for the violation thereof.”
“Section 1. That it shall not hereafter be lawful for any person, club, association or lodge directly or indirectly to keep or maintain by himself, itself, or by association with others, or to in any manner aid, abet or assist in maintaining any clubhouse, lodge or other place in which any liquor, containing more than one-half of one per cent, alcohol, is received or kept by the person in his own name or otherwise, or, by the association, lodge or club, for the purpose of use, gift, barter or sale as a beverage, or for distribution or division among the members of any club, association or lodge in this State, by any means whatsoever ; and no person, club, association or lodge within this, state shall use, barter, sell or give away, or assist in bartering, selling or giving away any liquor, containing more than one half of one per cent, alcohol, so received or kept. Any person violating the provisions of this act shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50.00 nor more than $500.00 and imprisonment for a period of not less than thirty days nor more than six months.”

The indictment against the Cumberland Club charges:

[89]*89“That ‘the Cumberland Chib,’ a bona fide social club, .chartered, organized and existing under the laws of the State of Tennessee, for the exclusive purpose of social enjoyment and intercourse among its members, and having and owning its clubhouse in Knoxville, Knox county,- Tenn., and also having several members, whose names are unkown to the grand jurors aforesaid, did, on the — —day of June, 1915, unlawfully permit certain members of said club to receive, keep and store in its said clubhouse and premises intoxicating liquors, containing more than one-half of one per cent, alcohol, belonging to said members, and received, kept and stored by said club for the use and consumption of said members in and upon its said clubhouse and premises, and kept in individual or private lockers by said members, and not for the purpose of barter or sale as a beverage by said club or its members, in violation of chapter 54 of the Public Acts of the general assembly of Tennessee for 1915, contrary to the statute and against the peace and dignity of the State.”

The indictment against the Elks’ Social Club has two counts. The first count charges:

“That the Elks’ Social Club, a corporation, heretofore on the 3d day of June, 1915, in the county aforesaid, did unlawfully keep and maintain a certain clubhouse, where, and in which, liquors containing more than one-half of one per cent, of alcohol were received and kept by said club for the purpose of sale [90]*90as a beverage to the individual members of snob elnb, against the peace and dignity of the State.”

The second count charges:

“That the Elks’ Social Club, a corporation, heretofore on the 3d day of June, 1915, in the county aforesaid, did unlawfully sell liquors containing more than one-half of one per cent, of alcohol from a supply of such liquors received and kept by said club in a clubhouse maintained by it against the peace and dignity of the State.”

A demurrer was filed to each of these indictments, and sustained. Thereupon an appeal was prayed in each case to this court; the first case from the criminal court of Knox county, and the second from the criminal court of Hamilton county.

Many points were made in the demurrer, but we shall consider only two of them. The first of these points is based upon the following found in the journal of the Senate; It appears from the journal that Senate Bill No. 763, having the same caption as House Bill No. 797, bad already passed its third and final reading, and a 1 motion to reconsider bad gone to the táble. Thereafter the senate reconsidered its action and took from the table the motion to 'reconsider, contrary to its rules, and over the objection of a member of the Senate, and substituted the House Bill for the Senate Bill, and passed it. It appears from the rules of the Senate that when a motion to reconsider has gone to the table no motion to reconsider shall be in order. It also appears from [91]*91a resolution of the Senate construing the rules that after a motion to reconsider has gone to the table no further action can be taken by the Senate, unless a motion is entered on the journal for reconsideration by a member who votes on the losing side.

So far as the matter of substitution is concerned the practice is well recognized in several of our cases, as expressed in the syllabus to Archibald v. Clark, 112 Tenn., 532, 82 S. W., 310, viz.:

“Where the Senate Bill and the House Bill are the same in tenor and substance in their caption and body, and the House Bill duly passed by the House is transmitted to the Senate after the Senate Bill had duly passed its two readings, and thereupon the House Bill is substituted for the Senate Bill and read and passed in the Senate, the law is constitutionally enacted, and the constitutional requirements (art. 2, section 18) that a hill shall he read and passed in each house on three separate days is complied with.”

To the same effect: Webb v. Carter, 129 Tenn., 263, 165 S. W., 426; State ex rel. v. Persica, 130 Tenn., 68, 168 S. W., 1056; Tennessee Coal, iron & R. Co. v. Hooper, 131 Tenn., 616, 175 S. W., 1146; Heiskell v. Knox County, 132 Tenn., 187, 188, 177 S. W., 483.

So far as concerns the violation of its own rules by the Senate, this cannot furnish a basis for the court’s annulment of an act. The Senate has the right, under the constitution, to make its own rules (Const. art. 2, section 12), and it must he the judge of those rules. All the court can do is to ascertain whether the con[92]*92stitution has been complied' with. If this has been done, we cannot look fnrtber. The same question has arisen in other states, and has been decided in the same way. Sweitzer v. Territory of Oklahoma, 5 Okl., 299, 300, 47 Pac., 1094; McDonald v. State, 80 Wis., 411, 412, 50 N. W., 185; In re Ryan, 80 Wis., 414, 50 N. W., 187; Railroad Co. v. Gill, 54 Ark., 105, 106, 15 S. W., 18, 11 L. R. A., 452. To the same effect: United States v. Ballin, 144 U. S., 1, 12 Snp. Ct., 507, 36 L. Ed., 321. Mr. Lewis states the proposition in the following language:

“It is held that an act cannot be declared invalid for failure of the legislature, or of either house, to observe its own rules, and that the court will not inquire whether such rules have been observed in the passage of an act.” Lewis’ Sutherland Statutory Construction (2d Ed.) vol. 1, section 76, p.

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136 Tenn. 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cumberland-club-tenn-1916.