As provided by statute (Acts 1911, p. 449; 1 Ala. App. 10), the Court of Appeals certifies to this court the abstract question of the constitutionality of the act approved September 30, 1919 (Acts 1919, p. 1088).
Is the act violative of the Tenth or Fourteenth Amendments to the Constitution of the United States, or of sections 6, 7, or 22 of the Constitution of Alabama?
The act for construction is entitled "An act to define trusts, monopolies, combines, profiteering and unlawful acts in hoarding, cornering or storing commodities with the purpose and intent to probably influence the price of food, commodities or any necessities of life and to fix civil and criminal liabilities, penalties or punishment and to provide remedies for the enforcement in such cases." By section 1 thereof a trust or combine is declared to "include any combination or agreement or the information of any plan or design, express or implied, between corporations, firms or individuals, or any two or more of them," in the instances specifically stated:
(a) To restrict or reduce the output or production or to increase the price of any article or commodity of food, clothing, fuel or other necessity of life or to attempt to acquire a monopoly therein within the state; (b) to prevent or restrict competition in the manufacture, marketing, transportation, selling or purchasing of any produce, commodity or necessity of life; (c) to fix a price on any article or commodity of food, clothing, fuel or other necessity of life which is not regulated by the supply of or the demand for such commodity or necessity of life; (d) to preclude, restrict or embarrass the freedom of commerce or the competition in trade of any commodity or necessity of life by pooling or hoarding the same.
In section 2 profiteering is defined to mean "the selling or offering for sale of any article or commodity of food, clothing, fuel or other necessity of life with the intent of obtaining fraudulent or grossly excessive price over its true or intrinsic worth;" and it was further declared that "in the ascertainment of whether such price is fraudulent or grossly excessive regard may be had to the cost price of said article or commodity to the person selling or offering the same; or evidence may be given of the cost price on the market of articles, commodities or necessities of like kind or character."
Section 3 defines a monopoly as meaning "any person, firm or corporation or a combination of the same who shall undertake to purchase or in any way or manner get possession or control of any article or commodity of food, clothing, fuel or other necessity of life for the purpose of withholding the same from the regular and due course of trade with the intent of affecting the price thereof."
In section 4 it is declared that it shall be unlawful for any person, firm or corporation to be or remain a party to any profiteering, trust, combine or monopoly, or to hoard in any way or manner any foodstuff or other necessity of life for the purpose of profitably affecting the price of such article in this state; declares the venue of actions in this state as stated; and that actions may be maintained (section 5) in manner therein indicated; and provided that a violation of the same shall be a misdemeanor, and upon conviction punished by fine or imprisonment. (Section 6); whether the party sued violated any provision of this act is made a question for the jury in section 7; and that the terms of the act shall be liberally construed to suppress the mischief aimed at and to advance the remedy is provided in section 9. The act, taking effect upon its approval, is declared to be supplementary legislation, but repeals "all laws in conflict" therewith (section 11); and that "any part of provision of this act held to be unconstitutional shall not be held to effect the remainder" of the act, section 13. Section 12 declares that the act "is not intended and shall not apply to persons holding foodstuffs, farm products or necessities of life raised by themselves or on their own premises, or to persons holding the same for such persons."
It may be said at the outset that the exemption provided in section 12 is not for decision — whether it is founded on a proper classification, rests upon a reasonable basis, is not essentially arbitrary, and does not deny the equal protection of the law to other classes not so exempt. Davis v. State,68 Ala. 58, 44 Am. Rep. 128; Mangan v. State, 76 Ala. 60; City of Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575; Denson v. Ala. F. I. Co., 198 Ala. 383, 393, 73 So. 525; Yick Wo v. Hopkins, 118 U.S. 356, 371, 6 Sup. Ct. 1064,30 L.Ed. 220. See Connolly v. Union Sewer Pipe Co., 184 U.S. 540,22 Sup. Ct. 431, 46 L.Ed. 679, 690; Truax v. Corrigan,257 U.S. 312, 42 Sup. Ct. 124, 66 L.Ed. ___. Nor do we decide whether the provision of section 7 is an invasion of the judicial power of section 42, art. 3, Constitution of Alabama, and applicable parts of article 6.
The maxim "noscitur a sociis" is that general specific words which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to that of the less general. State v. W. U. T. Co., 196 Ala. 570, 572, 573,72 So. 99 Would this rule of construction declare that under the provisions of section 2 of the statute a fraud is committed in selling, or is sought to be committed in offering for sale, any article or commodity of food, clothing, fuel, or other necessity of life with the intent of obtaining a fraudulent or grossly excessive price over its true or intrinsic worth? *Page 575 Such fraud or cheat, or the attempt to commit such offense, is made the subject of the criminal punishment or civil suit as provided in sections 5 and 6. It is elementary that the word "and" be interpreted as disjunctive, and the word "or" as conjunctive when the sense of a penal statute absolutely requires. State v. Brandt, 41 Iowa, 593, 614; State v. Smith,46 Iowa, 670, 673; Rolland v. Commonwealth, 82 Pa. 306, 22 Am.Rep. 758; State v. Pool, 74 N.C. 402, 404; Bollin v. Shiner,12 Pa. 205, 206; State v. Custer, 65 N.C. 339, 342; State v. Kerr,3 N. Dak. 523, 58 N.W. 27; Fowler v. Padget, 7 Term. R. 509; State v. Philbin, 38 La. Ann. 964-966; Pollock v. The Laura (D.C.) 5 Fed. 133, 135; United States v. Moore (D.C.) 104 Fed. 78. A proper construction of the instant statute is that a sale, or offer of sale, with the intent of cheating and defrauding, as indicated, is made a misdemeanor. It is not a statute to fix prices.
The subjects and purposes of regulation under the police power of government have been often discussed by the courts. For example, the police power has been held to extend to the regulation of slaughtering cattle and of market places (Butchers' Union, etc., Co. v. Cresent City Co., 111 U.S. 746,4 Sup. Ct. 652, 28 L.Ed. 585; Petz v. Detroit, 95 Mich. 169,54 N.W. 644); regulation of the business of mining (Wolf v. Smith,149 Ala. 457, 42 So. 824, 9 L.R.A. [N. S.] 338); prohibiting of consolidation of competing and parallel lines of railway (L. N. R. R. Co. v. Kentucky, 161 U.S. 700,16 Sup. Ct. 714, 40 L.Ed. 849); regulation of liability for destruction by fire caused by engines (St. L. S. F. R. Co. v. Mathews,165 U.S. 1, 17 Sup. Ct. 243, 41 L.Ed. 611); prescribing the manner in which railway crossings shall be kept in repair (Chicago Co. v. Nebraska, 170 U.S. 57, 74, 18 Sup. Ct. 513,42 L.Ed. 948); regulation of killing and importing game (Magner v. People, 97 Ill. 320); regulation of telephone rates (Hockett v. State, 105 Ind. 256, 259, 5 N.E. 178, 55 Am. Rep. 201); regulation of the pressure of natural gas transported in pipes (Jamieson v. Indiana Gas Oil Co., 128 Ind. 566, 28 N.E. 76, 12 L.R.A. 656, 660); requirement of street railways to sprinkle their tracks (State v. Railroad Co., 50 La. Ann. 1189, 24 So. 265, 56 L.R.A. 287); declaring on validity of tax to raise money to preserve public health (Davock v. Moore,105 Mich. 133, 63 N.W. 424, 28 L.R.A. 788); regulation of the construction of sewers from adjoining townships (Millburn v. South Orange, 55 N.J. Law, 262, 26 A. 75); prescribing the method of the use of land for burial purposes (Newark v. Watson, 56 N.J. Law, 673, 29 A. 487, 24 L.R.A. 843); regulation of the storing of gunpowder within designated limits (Davenport v. Richmond City, 81 Va. 642, 59 Am. Rep. 694); requiring of property owners to keep sidewalks free of ice and snow (Carthage v. Frederick, 122 N.Y. 277, 25 N.E. 480, 10 L.R.A. 178, 19 Am. St. Rep. 490); requiring and maintenance of safe cattle guards and crossings (Birmingham R. R. Co. v. Parsons, 100 Ala. 665, 13 So. 602, 27 L.R.A. 263, 46 Am. St. Rep. 92); requiring foreign corporations to appoint a resident agent (Am. U. Tel. Co. v. W. U. T. Co., 67 Ala. 26, 42 Am. Rep. 90); regulation of traffic at and about depots, including the soliciting of patronage by cab drivers (Ex parte Bizzell, 112 Ala. 210, 21 So. 371); regulation of the sale of seed cotton (Davis v. State, 68 Ala. 63, 44 Am. Rep. 128); and of the sale of milk (Ridgeway v. City of Bessemer, 9 Ala. App. 470,64 So. 189; Mayor Aldermen v. Goldstein,151 Ala. 473, 44 So. 113); prevention of stock running at large (Folmer v. Curtis, 86 Ala. 354, 5 So. 678); licensing of occupations generally (Van Hook v. Selma, 70 Ala. 363, 45 Am.Rep. 85; 2 Dillon on Mun. Corp., §§ 660, 731; Standard Chem. Oil Co. v. Troy, 201 Ala. 89, 91, 77 So. 383, L.R.A. 1918C, 522; Jones v. State, 17 Ala. App. 444, 85 So. 839); regulations in cities, mines, and watersheds (Block v. Hirsh, infra, p. 533).
Approaching the main question for decision, it must be conceded of our dual system of government that there is inherent authority under the police power: (1) To pass laws necessary to protect the property and the morals, as well as the lives, of the people, and to promote the public convenience and general prosperity; and that statutes having that effect and purpose have not been held invalid because incidentally affecting commerce between the states, except only as Congress has interposed restraint. L. N. v. State, 16 Ala. App. 199,206, 76 So. 505. (2) That the paramount authority of Congress enables it to intervene, at discretion, for the complete and effective government of that which has been committed to its care, and to this extent, in response to a conviction or national need, Congress may displace local laws by substituting laws of its own. L. N. v. State, 16 Ala. App. 207,76 So. 505, where federal authorities are collected. (3) Though Congress may have enacted a law relating to a subject on which a state may legislate, yet, if it be a limited enactment to such extent is the subject left to state regulation, where enforcement of the state statute can be had without embarrassment to the enforcement of the federal law, the state enactment will be permitted to operate in aid of the federal. L. N. v. State, 16 Ala. App. 207, subd. 8, 76 So. 505. (4) In determining whether a federal statute has superseded a state enactment, the entire scope and purpose of the statute must be considered, and that which needs to be implied within its statutory scope and intent is of no less force than that which is expressed in the act. When so considered, if the federal statute, in its chosen field of operation, will be "frustrated," and its provisions "refused their *Page 576 natural effect," the state law must yield to the superior authority of the federal law within the sphere of its delegated and assumed authority. Texas Pacific v. Abilene Cot. Oil. Co., 204 U.S. 426, 27 Sup. Ct. 350, 51 L.Ed. 553, 9 Ann. Cas. 1075; Northern Pacific v. Washington, 222 U.S. 370, 377,32 Sup. Ct. 160, 56 L.Ed. 237; Southern Railway v. Reid,222 U.S. 424, 32 Sup. Ct. 140, 56 L.Ed. 257; Savage v. Jones,225 U.S. 501, 32 Sup. Ct. 715, 56 L.Ed. 1183. That is to say, if the state statute has such indirect and incidental effect on the enforcement or abeyance of the federal statute, the state law can have no validity. Northern Pacific v. Washington, supra; Southern Railway v. Reid, supra; Asbell v. Kansas,209 U.S. 251, 28 Sup. Ct. 485, 52 L.Ed. 778, 14 Ann. Cas. 1101. It should be observed in this connection that the intent to supersede, by the federal act, the exercise by the state of its police power, as to matters not covered by federal legislation, is not to be inferred from the "mere fact that Congress has seen fit to circumscribe and to occupy a limited field." Savage v. Jones, supra; A. C. L. v. Georgia, 234 U.S. 280,34 Sup. Ct. 829, 58 L.Ed. 1312; M. K. T. v. Harris, 234 U.S. 412,34 Sup. Ct. 790, 58 L.Ed. 1377, L.R.A. 1915E, 942.
Where the issue is whether a state statute, in its application to facts which are set out in the pleading and admitted by demurrer, violates the Fourteenth Amendment, the Supreme Court of the United States will "analyze the facts as averred and draw its own inferences as to their ultimate effect" upon the rights and immunities of citizenship so protected, "and is not bound by the conclusion of the state Supreme Court in this regard." There is, however, in such case a respect in which the Supreme Court of the United States is "bound by the judgment of the state Supreme Court" — the construction which the state court puts upon the statute. Truax v. Corrigan, 257 U.S. 312, 42 Sup. Ct. 124, 66 L.Ed. ___. However, in the finding of the state court as to the facts "when the conclusion of law and findings of fact are so intermingled as to make it necessary, in order to pass upon the question," the Supreme Court of the United States will analyze the facts, when this is necessary to pass upon the constitutional question for decision. Jones Nat. Bank v. Yates,240 U.S. 541, 552, 553, 36 Sup. Ct. 429, 60 L.Ed. 788; Northern P. R. Co. v. North Dakota, 236 U.S. 585, 593, 35 Sup. Ct. 429,59 L.Ed. 735, L.R.A. 1917F, 1148, 1158, 1159, Ann Cas. 1916A, 1; Truax v. Corrigan, supra.
With this general statement of the respective jurisdictions and powers of state and federal authority, it is interesting to note that by the act of August 10, 1917, and the amendment thereto or re-enactment of October, 22, 1919 (volume 41, part 1, Public Laws, U.S. Stat. at L. 66 Cong. p. 297 et seq.; vol. 40, pp. 276-278), of what is called the "Food Control Act Amendments," the federal government sought to enter this important field and deal with the subject and some of the objects embraced in the provisions of the state statute now submitted for construction. The reason for the federal statute was declared to be the existence of a state of war, and that it was deemed essential "to the national security and defense, for the successful prosecution of the war and for the support and maintenance of the army and navy, to assure an adequate supply and equitable distribution, and to facilitate the movement of foods, feeds, wearing apparel * * * in this act called necessaries; to prevent, locally or generally, scarcity, monopolization, hoarding, injurious speculation, manipulation, and private controls, affecting such supply, distribution, and movement; and to establish and maintain governmental control of such necessaries during the war." Lawrenceburg Co. v. Jones,204 Ala. 59, 85 So. 719. The economic conditions growing out of the war were the reasons that induced the passage of the instant statute by the Legislature of Alabama. Block v. Hirsh,256 U.S. 135, 41 Sup. Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165.
In U.S. v. Cohen Groc. Co., 255 U.S. 81, 41 Sup. Ct. 298,65 L.Ed. 516, 14 A.L.R. 1045, Mr. Chief Justice White, delivering the opinion, held that the price at which a commodity is sold is comprehended by the provision of the Lever Act of August 10, 1917, as re-enacted by the law of October 22, 1919, making it unlawful for any person willfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries, or to conspire to exact excessive prices therefor; and that the mere existence of a state of war was not authority to suspend or change the operation upon the power of Congress, or of the guaranties and limitations of the United States Constitution (Fifth and Sixth Amendments), as to delegating legislative power to courts and juries, penalizing indefinite acts, and depriving citizens of the right to be informed of the nature and cause of accusations against them. It was further held that the federal act violated the Fifth andSixth Amendments to the Constitution of the United States, requiring an "ascertainable standard of guilt," fixed by Congress rather than by courts and juries, and securing to accused persons the right to be informed of the nature and cause of accusations against them. It is of interest to note that by the recent case of American Column Lumber Co. v. U.S., 257 U.S. 377, 42 Sup. Ct. 114, 66 L.Ed. ___ (decided December 19, 1921, U.S. Sup. Ct.) and that of Federal Trade Comm. v. Beechnut Pkg. Co., 257 U.S. 441, 42 Sup. Ct. 150, 66 L.Ed. ___ (decided January 3, 1922) attempts were condemned to fix prices through restrictive agreements, and to which we will later advert. See, also, the "Rent Case," Block v. *Page 577 Hirsh, supra, where under police power the tenant was given the privilege of holding over after expiration of the lease so long as he paid the rent and performed the conditions as fixed by the lease or as modified by the commission — justified under the right to make temporary legislation meet the emergencies caused by the war, etc. Munn v. Illinois, 94 U.S. 113,24 L.Ed. 77.
In Twining v. New Jersey, 211 U.S. 78, 29 Sup. Ct. 14,53 L.Ed. 97, 103, Mr. Justice Moody demonstrated that the first 10 amendments to the Constitution of the United States were limitations upon Congress, and not upon the Legislatures of the several States. Banks v. State (Ala. Sup.) 93 So. 293.1 Therefore the Alabama statute in question is not to be tested by either of the first 10 amendments to the Constitution of the United States.
The real inquiry propounded by the Court of Appeals, as affecting the rights of citizenship, is whether the statute violates the Fourteenth Amendment by abridging the privileges or immunities of citizens of the United States, or by depriving any person of his life, liberty, or property without due process of law, or denying to any person within its jurisdiction the equal protection of the law. In order to bring a defendant within the protection of this clause of the Constitution, it must be shown (1) that a right, privilege, or immunity is guaranteed by the federal Constitution against impairment by the state; and (2), if so, that the rights, privileges, or immunities so guaranteed would be impaired or denied by an enforcement of the state statute. That is to say, as a citizen of the United States and of his state of residence, the rights of citizenship declared by theFourteenth Amendment not to be abridged are that no state shall (1) make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state (2) deprive any person of his life, liberty, or property without due process of law, (3) nor deny to any person withinits jurisdiction the equal protection of the law.
The effect of the Fourteenth Amendment is said to withdraw from the states powers theretofore enjoyed by them to an extent not yet fully ascertained, "limited those powers and restrained their exercise," and that "whenever a new limitation or restriction is declared, it is a matter of grave import, since, to that extent, it diminishes the authority of the state, so necessary to the perpetuity of our dual form of government, and changes its relation to its people and to the Union." Twining v. New Jersey, supra.
On writ of error to the Supreme Court of the state of Arizona to review a decree which sustained a decree of the superior court for Cochise county in that state, sustaining a demurrer to and dismissing the complaint in a suit seeking injunctive relief in an industrial dispute, Mr. Chief Justice Taft, in Truax v. Corrigan, supra, speaks of the guaranty of theFourteenth Amendment as follows:
"It is true that no one has a vested right in any particular rule of the common law, but it is also true that the Legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in theFourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles."
Of the provisions of that amendment forbidding a state to deny to any person the equal protection of the law, it is said:
"The clause is associated in the amendment with the due process clause and it is customary to consider them together. It may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. The due process clause brought down from Magna Charta was found in the early state Constitutions and later in the Fifth Amendment to the federal Constitution as a limitation upon the executive, legislative and judicial powers of the federal government, while the equality clause does not appear in theFifth Amendment and so does not apply to congressional legislation. The due process clause requires that every man shall have the protection of his day in court and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Hurtado v. California,110 U.S. 516, 535, 4 Sup. Ct. 111, 292, 28 L.Ed. 232, 238. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty, and property, which the Congress or the Legislature may not withhold."
And it was said further that —
"The equality clause of the Fourteenth Amendment does not apply to congressional, but only to state action." Truax v. Corrigan, supra.
Is the act in question one depriving a citizen of the United States or of this state of the right of ownership, proper control, contract or sale of personal property? Does it abridge any privilege or immunity of a citizen of the United States as to the same guaranteed by the federal Constitution? Does it deprive "any person" of his property without due process of law, or deny to any person within the jurisdiction of the state the equal protection of the law in the due exercise of the right of ownership of said property as regulated or denied by section 2 of the Alabama statute?
The statute defines and regulates the right of contract that is declared fraudulent and a *Page 578 violation of section 2 by a sale or offer of sale of personal property contrary to its provisions. Analogous classifications, rested on a reasonable basis and not essentially arbitrary, are found in several of our statutes, to wit: The provision for cattle guards to be erected and maintained by railroad corporations or persons operating railroads (Code, §§ 5513, 5654; A. St. A. B. Ry. Co. Y. Fowler, 192 Ala. 373, 68 So. 283; Birmingham M. R. R. Co. v. Parsons, 100 Ala. 662,13 So. 602, 27 L.R.A. 263, 46 Am. St. Rep. 92; Ex parte Hines, 205 Ala. 17, 22, 87 So. 691); racing and reckless driving on public thoroughfares (Code, § 7728; Parker v. State,1 Ala. App. 244, 55 So. 330); offenses concerning causeways and bridges and permitting bridges over public highways to remain out of repair (Code, § 7731); against directly or indirectly forming pools, combinations, or monopolies (Code, §§ 7579-7582; Sou. Cotton Oil Co. v. Knox, 202 Ala. 694, 81 So. 656; Code, § 2487; Tallassee Oil F. Co. v. Holloway, 200 Ala. 492,76 So. 434, L.R.A. 1918A, 280); concealing identity (section 6937); false pretense and fraud (Code, §§ 6920, 6925; Dennis v. State, 16 Ala. App. 115, 75 So. 707); requiring railroads to provide "good lights" and a sufficiency of good drinking water (Code, § 7660; Dean v. State, 149 Ala. 34,43 So. 24; Id., 154 Ala. 77, 45 So. 651); the labor statute (Code, § 6845; Bailey v. State, 161 Ala. 75, 49 So. 886; Id., 219 U.S. 219, 31 Sup. Ct. 145, 55 L.Ed. 191); recklessly handling firearms or other weapon on a passenger train (Code, § 7681); boarding house statute (Code, § 6934; Acts 1915, p. 152; Ex parte King, 102 Ala. 182, 15 So. 524; Selling liquor, arms, etc., during riot and before public notice is given for opening such business after the riot (Code, § 7723); unlawful assemblies (Code, § 7721); the future contract statutes (Code, § 3349; Acts 1915, p. 913; Thorn v. Browne, 257 Fed. 519); to prevent fraud in "packing cotton" (Code, § 6683; Daniel v. State, 61 Ala. 4; Wallace v. Crosthwait, 196 Ala. 356,71 So. 666); the inspection, regulation, and licensing statutes for municipalities (Code, § 1338 et seq.; Ward v. Markstein,196 Ala. 209, 72 So. 41; Ex parte Rowe, 4 Ala. App. 254,59 So. 69); trading in farm products between sunset and sunrise (Code, § 6878). The constitutionality of such police statutes was affirmed (Davis v. State, 68 Ala. 58, 44 Am. Rep. 128); declared not offensive to section 7, article 1, Const Ala. 1875; section 6, article 1, Const. Ala. 1901; orFourteenth Amendment to the Constitution of the United States. And this court said of the farm products statute (Mangan v. State,76 Ala. 60) that it was a legitimate exercise of legislative power, and not an unauthorized interference with the rights of private property or violative of the Fourteenth Amendment to the Constitution of the United States. Other cases of the valid exercise of the police powers by the State are collected in Southern Express Co. v. Whittle, 194 Ala. 406, 435, 69 So. 652, L.R.A. 1916C, 278; State v. Mattox Cigar Tob. Co.,201 Ala. 229, 77 So. 755; Standard Chem. Oil Co. v. Troy,201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522; Mobile v. Yuille,3 Ala. 137, 36 Am. Dec. 441; Ex parte City of Birmingham,201 Ala. 641, 79 So. 113; City of Troy v. Western U. T. Co.,164 Ala. 482, 486, 51 So. 523, 27 L.R.A. (N.S.) 627.
Statutes and ordinances — other than for the punishment of the criminal — as for the condemnation of the res, in aid of the enforcement of the prohibition laws, to prevent larceny, burglary, counterfeiting, etc., have been upheld, and may properly "curtail the rights of innocent persons (1) as interfering with their rights of purchase and receipt of property, or (2) as limiting and regulating their powers of enjoyment and disposal of their own property." New Mexico v. Brooken, 19 N.M. 404. 143 P. 479, Ann. Cas. 1916D, 136, L.R.A. 1915B, 213, and notes. For example, statutes and ordinances regulating the business of pawnbrokers, junk dealers, and the like, although such regulations indirectly curtail the salability of property in the hands of the owner; such regulations belong, in general to the first class; and statutes and ordinances to the second class, in which the owner of property is forbidden to keep, use, remove or sell the same in other than certain reasonable manner indicated by the law. State v. Mattox Cigar Tob. Co., supra, where the federal authorities are collected. See notes to New Mexico v. Brooken, supra; Davis v. State, supra; Mangan v. State, supra; Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575; Harris v. Barrett, 89 So. 717;2 State ex rel. Black v. Delaye, 193 Ala. 500, 68 So. 993, L.R.A. 1915E, 640.
Out of the mass of decisions it has been defined and declared that the right to conduct one's lawful business without the wrongful and injurious interference of others is a valuable property right, which will be protected, if necessary by injunctive process. Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66,66 So. 657. A recent decision of this court on the question of the protection of this property right is contained in Franklin Social Club v. Phil Campbell, 204 Ala. 259,85 So. 527, where it is declared:
"In Dobbins v. Los Angeles, 195 U.S. 223, 25 Sup. Ct. 18,49 L.Ed. 169, it is said that, while it is admitted that every intendment must be made in favor of the lawfulness of the exercise of municipal power making regulations to promote the public health and safety, and while it is not the province of the courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community — notwithstanding this general rule of the law, it is now thoroughly well *Page 579 settled by the decisions of that court that municipal by-laws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property." L.R.A. 1918D, 1007.
It is established by state and federal decisions that the right to sell (Dorman v. State, 34 Ala. 216, 234; State v. Mattox Cig. Tob. Co., supra; State ex rel. v. Delaye, supra; Southern Exp. Co. v. Whittle, supra; Purity Ext. Co. v. Lynch,226 U.S. 192, 33 Sup. Ct. 44, 57 L.Ed. 184; Clark Dist. Co. v. West. Md. Ry. Co., 242 U.S. 311, 37 Sup. Ct. 180, 61 L.Ed. 326, L.R.A. 1917B, 1218, Ann. Cas. 1917B, 845; Mugler v. Kansas,123 U.S. 623, 8 Sup. Ct. 273, 31 L.Ed. 205, as to prohibiting the manufacture, sale, or other disposition of liquors, whether intoxicating or not, in connection with prohibitive liquor statutes) and the right to refuse to sell is qualified — may be properly limited in the public interest (Federal Trade Comm. v. Beechnut Pkg. Co., supra). Of the correctness of this statement there is authority; as, "It would be idle and trite to say that no right is absolute" (Orient Ins. Co. v. Daggs,172 U.S. 557, 566, 19 Sup. Ct. 281, 43 L.Ed. 552); "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part" (Aikens v. Wisconsin,195 U.S. 194, 206, 25 Sup. Ct. 3, 6, 49 L.Ed. 154); "The word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified" (Amer. Bank Tr. Co. v. Fed. Res. Bank, 256 U.S. 350,41 Sup. Ct. 499, 65 L.Ed. 983). "Who are to settle the principles of eternal justice, and define the limits of so vague a thing as natural justice?" is the question on which the argument in Dorman v. State, supra, proceeded.
In a discussion of the Beechnut Case, this question was aptly urged on the Supreme Court of the United States by the Solicitor General as follows:
"The right to refuse to enter into contracts is no more absolute or sacred than the right to contract. The right to refuse to sell and the right to sell are both natural rights, but they may both be limited in the public interest. Liberty of contract is protected by the Fifth Amendment to the federal Constitution. It may be qualified, however, by legislative enactment under the commerce clause, and has been so qualified under the Sherman Law, and later by the Trade Commission Act."
The case of the United States v. Colgate, 250 U.S. 300, 307,39 Sup. Ct. 465, 468, 63 L.Ed. 992, 997 (7 A.L.R. 443), wherein occurs the expression:
"In the absence of any purpose to create or maintain a monopoly, the act [we interpolate, the Sherman Act] does not restrict the long-recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell. 'The trader or manufacturer, on the other hand, carries on an entirely private business, and can sell to whom he pleases'"
— was explained in Federal Trade Comm. v. Beechnut Pkg. Co., supra. It was said that the Colgate Case was a prosecution under the Sherman Anti-Trust Act (U.S. Comp. St. § 8820 et seq.), coming to the Supreme Court of the United States under the Criminal Appeals Act (U.S. Comp. St. § 1704), wherein the Supreme Court "must accept the construction of the indictment as made in the District Court; and that upon such construction the only act charged amounted to the exercise of the right of the trader, or manufacturer, engaged in private business, to exercise his own discretion as to those with whom he would deal, and to announce the circumstances under which he would refuse to sell, and that thus interpreted no act was charged in the indictment which amounted to a violation of the Sherman Act." The subsequent case of U.S. v. Schrader's Son,252 U.S. 85, 99, 40 Sup. Ct. 251, 64 L.Ed. 471, dealt with the Colgate Case under the Criminal Appeals Act, wherein there was a charge that a manufacturer sold to manufacturers in several states under an agreement to observe certain resale prices fixed by the vendor. It was said that the court below had misapprehended the meaning and effect of the opinion and judgment in the Colgate Case; that there was no intention in the Colgate Case to overrule or modify the doctrine applied in Dr. Miles Med. Co. v. Park, 220 U.S. 373, 31 Sup. Ct. 376, 55 L.Ed. 502, where the effort was to destroy the dealer's independent discretion through restrictive agreements to control prices. In the later case of Frey Son v. Cudahy, 256 U.S. 208, 41 Sup. Ct. 451,65 L.Ed. 892, it was said of the Colgate Case that "apparently the former case was misapprehended," and that U.S. v. Schrader's Son, supra, distinctly stated that the essential agreement, combination or conspiracy might be "implied from a course of dealing or other circumstances." Boston Store v. Am. Graph. Co., 246 U.S. 8, 21, 38 Sup. Ct. 257, 62 L.Ed. 551, Ann. Cas. 1918C, 447.
"To pronounce abnormal conduct on the part of * * * natural competitors, controlling one-third of the trade of the country in an article of prime necessity, a 'new form of competition,' and not an old form of combination in restraint of trade, as it so plainly is, would be for this court to confess itself blinded by words and forms to realities which men in general very plainly see, and understand and condemn, as an old evil in new dress and with a *Page 580 new name." American Column Lumber Co. v. United States, supra.
"Jobbers and wholesale dealers who would supply the trade may not get the goods of the company, if they sell to those who do not observe the prices indicated or who are on the company's list of undesirables until they are restored to favor by satisfactory assurances of future compliance with the company's schedules of resale prices. Nor is the inference overcome by the conclusion stated in the Commission's findings that the merchandising conduct of the company does not constitute a contract or contracts whereby resale prices are fixed, maintained, or enforced. The specific facts found show suppression of the freedom of competition by methods in which the company secures the co-operation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose. By these methods the company, although selling its products at prices satisfactory to it, is enabled to prevent competition in their subsequent disposition by preventing all who do not sell at resale prices fixed by it from obtaining its goods." Federal Trade Comm. v. Beechnut Pkg. Co., supra.
The terms of the Lever Act held indefinite and nonconstituting a fixing by Congress of an ascertainable standard of guilt and as inadequately informing a person accused of the violations thereof of the nature and cause of the accusation against him, are that "it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries. United States v. Cohen Groc. Co., 255 U.S. 81,41 Sup. Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; Standard Chem. Corp. v. Waugh Corp., 14 A.L.R. 1054. It is said in the Cohen Case:
" * * * The section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against."
In article 5 of Amendments to the Federal Constitution is contained the provision that no person shall be deprived of life, liberty, or property, without due process of law. A material part of due process of law declared in article 6 — that the accused be "informed of the nature and cause of the accusation" — is not contained in the Fourteenth Amendment. The decision in the Cohen Case, supra, was rested on the failure of the statute to comply with the quoted provisions of the Fifth and Sixth Amendments, for the Chief Justice said of the defect in the quoted portions of the Lever Act:
"The section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides."
That is, in short, it is unconstitutional because no standard of duty had been established. That decision is not based on the provisions of the Fifth Amendment alone, also found in theFourteenth Amendment, but the essential element of due process declared in the Sixth Amendment. The instant statute states: (1) The specific or definite act forbidden is the fraudulently selling, or fraudulently exposing for sale a necessity of life; (2) the subject-matter of the investigation (which the statute authorizes) is confined by that statute to the element of fraud (or attempt thereof) essentially inhering in the transaction of its sale or exposure for sale at so grossly excessive price over its true and intrinsic worth, and which is declared a fraud or cheat. This is within the police power of government. 6 R. C. L. p. 183 et seq., pars. 199, 202. The prevention of fraud and deceit, cheating and imposition, is equally within the police power. People v. Freeman, 242 Ill. 373, 90 N.E. 366, 17 Ann. Cas. 1098; People v. William Henning Co., 260 Ill. 554,103 N.E. 530, 49 L.R.A. (N.S.) 1206; People v. Wagner,86 Mich. 594, 49 N.W. 609, 13 L.R.A. 286, 24 Am. St. Rep. 125.
The words of section 2 of the Alabama statute for construction are different from that indefiniteness condemned in the Lever Act. It is made unlawful for any person to sell or offer for sale any necessity of life with the intent of obtaining fraudulently or grossly excessive price over its true or intrinsic worth. There is no delegation of legislative power, no leaving to the jury the ascertainment of the nature and cause of the accusation against a defendant, no depriving a person of life, liberty, or property without due process of law. True, the legislative standard of the right of contract or of its limitation beyond which the act is declared a crime is to be found in the relation between the cost price of the article or commodity to the person selling the same and that for which it is offered for sale or sold, and the cost price on the market of articles, commodities, or necessities of like kind or character. That is not such as was condemned in Bailey v. State, supra; Truax v. Corrigan, supra; Chicago, M. St. P. R. Co. v. Minnesota, 134 U.S. 418, 10 Sup. Ct. 702,33 L.Ed. 970; Corn Products Ref. Co. v. Eddy, 249 U.S. 427,39 Sup. Ct. 325, 63 L.Ed. 689; Engler v. Kansas, supra.
When the instant statute is contrasted with the Lever Act, there is not that analogy between section 2 and the provision of the act of Congress condemned (section 4 of the original act, as amended by section 2 of the act of 1919), such as to bring the Alabama statute within the controlling influence of U.S. v. Cohen Groc. Co., supra. The necessary tests were supplied in section 2 of the Alabama statute by the declared rule of evidence; as where statutes direct adherence to market values (Internl. Harvester Co. v. Kentucky, *Page 581 234 U.S. 216, 221, 34 Sup. Ct. 853, 58 L.Ed. 1284; Nash v. U.S., 229 U.S. 373, 377, 33 Sup. Ct. 780, 57 L.Ed. 1232; Collins v. Kentucky, 234 U.S. 634, 34 Sup. Ct. 924,58 L.Ed. 1510), or to rates, etc., fixed, declared, or announced by other governmental agencies to whom legislative discretion had been given (Standard Chem. M. Corp. v. Waugh Corp., supra; authorities collected in Johnson v. Craft, 205 Ala. 407,87 So. 375; Arver v. U.S., 245 U.S. 366, 389, 38 Sup. Ct. 159,62 L.Ed. 349, 358, L.R.A. 1918C, 361, Ann. Cas. 1918B, 856).
In Internl. Harvester Co. v. Kentucky, supra (writs of error to the Court of Appeals to review judgments affirming convictions in the circuit courts in that state) Mr. Justice Holmes, delivering the opinion, stated that the conviction was for having entered into an agreement with other named companies for the purpose of controlling the price of machinery manufactured by them "and of enhancing it above their realvalue; and for having so fixed and enhanced the price, and for having sold their harvesters, etc., at a price in excess of their real value, in pursuance of the agreement alleged." The rights of plaintiff in error were rested under theFourteenth Amendment to the Constitution; it being contended on the one hand that the statute as construed by the Court of Appeals offered no standard of conduct possible to know; and, on the other, that in the present and earlier decisions of the state the real value was declared to be "the market value under faircompetition, and under normal market conditions." 147 Ky. 566,144 S.W. 1064; Id., 137 Ky. 668, 126 S.W. 352; Commonwealth v. International Har. Co., 131 Ky. 551, 115 S.W. 703, 33 Am. St. Rep. 256. This standard declared by the Court of Appeals of Kentucky was thus discussed by the Supreme Court of the United States:
"In order to reach what is called the real value, a price from which all effects of the combination are to be eliminated, the plaintiff in error is told that it cannot avail itself of the rise in materials because it was able to get them cheaper through one of the subsidiary companies of the combination, and that the saving through the combination more than offset all the rise in cost. * * * Value is the effect in exchange of the relative social desire for compared objects expressed in terms of a common denominator. It is a fact and generally is more or less easy to ascertain. * * * The reason [for the granting of the writ] is not the general uncertainties of a jury trial but that the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect to the acutest commercial mind." Pages 1287, 1288.
These necessary elements to determine the fact, for the lack of which in the Kentucky statute it was denominated an "Imaginary ideal," are supplied by the Alabama statute, and rendered certain both "in nature and degree of effect to the acutest commercial mind' by the reasonable rule of evidence declared, to wit, (1) The cost price of the article or commodity to the persons selling or offering the same for sale, together (2) with the cost price on the market of articles, commodities, or necessities of like kind or character. This latter element of market value was not supplied by the Kentucky statute. It was "market value under (a) fair competition, and (b) under normal market conditions;" and this double ascertainment or conjecture of normal conditions and fair competition as elements of market value, was condemned as the requirement by statute of the ascertainment of an "imaginary ideal" in International Harvester Co. v. Kentucky, supra. That this is the true interpretation, by the Supreme Court of the United States, of the defect found in the Kentucky statute under the Fourteenth Amendment to the Constitution, is indicated by Mr. Justice Holmes as follows:
"We regard this decision as consistent with Nash v. United States, 229 U.S. 373, 377, 57 L.Ed. 1232, 1235,33 Sup. Ct. 780, in which it was held that a criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree — what is an undue restraint of trade. That deals with the actual, not with an imaginary condition other than the facts. It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. The conditions are as permanent as anything human, and a great body of precedents on the civil side, coupled with familiar practice make it comparatively easy for common sense to keep to what is safe." Internl. Har. Co. v. Kentucky, supra.
It is thus conceded that a standard fixed by market value is admissible and just, and that the Kentucky statute was condemned only because in truth it did not apply this standard, but called for an estimate of what prices would have been under nonexistent and imaginary conditions — "under fair competition and under normal market conditions."
In Collins v. Kentucky, supra (in error to the Court of Appeals of Kentucky), Mr. Justice Hughes rested the decision on Internl. Harvester Co. v. Kentucky, supra, declaring of the test that to determine his conduct, a defendant was bound to ascertain the real value (1) "not according to the actualities of life, or (2) by reference to knowable criteria, but (3) by speculating upon imaginary conditions and (4) endeavoring to conjecture what would be the value under other and so-callednormal circumstances with fair competition, eliminating the abnormal influence of the combination itself, and of all other like combinations, and of still other combinations which there were organized to oppose." By *Page 582 reason of this twofold uncertainty the statute is held defective. The standard fixed by the Alabama statute was vastly different, more definite, and ascertainable, providing, as it does, a twofold security that evidence may be given of the cost price on the market, and of the "cost price of said article or commodity to the person selling or offering the same" for sale, in the ascertainment of whether such price at which it is sold or offered for sale was fraudulent and a cheat.
In the later case of Fox v. Washington, 236 U.S. 273,35 Sup. Ct. 383, 59 L.Ed. 573 (in error to the Supreme Court of the state of Washington to review a judgment of conviction affirmed in the superior court), of editing printed matter tending toencourage and advocate disrespect for an actual breach of law, the state statute was upheld. Mr. Justice Holmes, delivering the opinion, said:
"We understand the state court by implication at least to have read the statute as confined to encouraging an actual breach of law. Therefore the argument that this act is both an unjustifiable restriction of liberty and too vague for a criminal law must fail. * * * If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it for want of definiteness. See Nash v. United States,229 U.S. 373, 57 L.Ed. 1232, 33 Sup. Ct. 780; International Harvester Co. v. Kentucky, 234 U.S. 216, 58 L.Ed. 1234,34 Sup. Ct. 853. It lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience. Laws of this description are not unfamiliar."
"Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained." Munn v. Illinois,94 U.S. 113, 24 L.Ed. 77; Weed Co. v. Lockwood (D.C.) 264 Fed. 455, 457; State v. Moilen, 1 A.L.R. 337, note.
In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86,29 Sup. Ct. 220, 53 L.Ed. 417, the Supreme Court of the United States had before it the anti-trust statute of Texas, which contained the phrase "reasonably calculated" to fix and regulate prices, and Mr. Justice Day said of this phrase that it merely implied the commission of acts which tend to accomplish the thing prohibited by the statute; and, to the insistence that the statute was void for uncertainty, expressed the opinion that the broad power was not given to a jury to determine the criminal character of the act in accordance with their belief as to whether it is reasonable or unreasonable. If this decision left it in doubt, as to the right of a jury in a criminal case to determine the reasonableness of a rate, charge, or intent, the criminal case of Nash v. United States, supra, dispelled that doubt. The statute made the subject of consideration in that case (anti-trust act) was attacked on the grounds that it was vague and indefinite (Standard Oil Co. v. United States, 221, U.S. 1, 31 Sup. Ct. 502, 55 L.Ed. 619, 34 L.R.A. [N. S.] 834, Ann. Cas. 1912D, 734) and Mr. Justice Holmes said:
"Apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. 'An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it' by common experience in the circumstances known to the actor. * * * 'The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.' 1 East, P. C. 262."
It is thus established that this rule, long obtaining in England and in the states of the Union, has been reaffirmed and applied under the Fourteenth Amendment in criminal cases by the Supreme Court of the United States. Nash v. U.S., supra (1913); Fox. v. Washington, supra (1915); and Miller v. Strahl,239 U.S. 426, 36 Sup. Ct. 147, 60 L.Ed. 364, an action for tort (1915).
The case of Miller v. Strahl, supra, construed a statute of Nebraska requiring innkeepers, in case of fire, to give notice to guests and inmates at once, and "to do all in their power to save" them unharmed. Because of this last clause, that statute was challenged as offensive to the Fourteenth Amendment, and Mr. Justice McKenna said:
"Could the statute exact less? It is the dictate of humanity, and gets nothing from its expression as a legal obligation except a penalty for its violation, and the facts of the case reject any charge that it was enforced to the extent of risk of the life of anybody or to the injury of anybody. * * * Rules of conduct must necessarily be expressed in general terms and depend for their application upon circumstances, and the circumstances vary. * * * And what better test could be devised than the doing of 'all in one's power' as determined by the circumstances? The case falls, therefore, under the rule of Nash v. United States, 229 U.S. 373, 57 L.Ed. 1232,33 Sup. Ct. 780, and not under the rule of International Harvester Co. v. Kentucky," supra.
In Omaechevarria v. Idaho, 246 U.S. 343, 38 Sup. Ct. 323,62 L.Ed. 763, 769, in error to the Supreme Court of Idaho, the grazing statutes were questioned as denying the rights guaranteed by the Fourteenth Amendment of due process of law, "since it fails to provide for the ascertainment of the boundaries of a 'range,' or for determining what length of time is necessary to constitute a prior occupation, a 'usual' one within the *Page 583 meaning of the act." Mr. Justice Brandeis said:
"Men familiar with range conditions, and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other states. This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U.S. 373, 377,57 L.Ed. 1232, 1235, 33 Sup. Ct. Rep. 780; Miller v. Strahl,239 U.S. 426, 434, 60 L.Ed. 364, 368, 36 Sup. Ct. Rep. 147."
In sustaining the Arizona Employers' Liability Act, Mr. Justice Pitney declared that states are left with a wide range of legislative discretion, notwithstanding the provisions of the Fourteenth Amendment, and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts. Neither due process of law nor the equal protection of the laws was denied by the statute, which imposed upon employers in respect of certain specified hazardous employments, without regard to the question of their fault, a liability in compensatory damages, to be awarded in a judicial proceeding, according to the ordinary process of law for accidental personal injury or death of an employé arising out of and in the course of the employment, and due to its inherent conditions in cases where such injury or death shall not have been caused by the employé's own negligence. Mr. Justice Holmes, concurring, said:
"There are cases in which even the criminal law requires a man to know facts at his peril. Indeed, the criterion which is thought to be free from constitutional objection, the criterion of fault, is the application of an external standard, the conduct of a prudent man in the known circumstances, that is, in doubtful cases, the opinion of the jury, which the defendant has to satisfy at his peril and which he may miss after giving the matter his best thought. The Germanic [Oceanic Steam Nav. Co. v. Aitken] 196 U.S. 589, 596, 49 L.Ed. 610, 613,25 Sup. Ct. Rep. 317; Nash v. United States, 229 U.S. 373, 377,57 L.Ed. 1232, 1235, 33 Sup. Ct. 780; Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U.S. 600, 610,58 L.Ed. 1490, 1498, L.R.A. 1915A, 788, 34 Sup. Ct. 951; Miller v. Strahl, 239 U.S. 426, 434, 60 L.Ed. 364, 368, 36 Sup. Ct. 147. Without further amplification so much may be taken to be established by the decisions. New York C. R. Co. v. White,243 U.S. 188, 198, 204, 61 L.Ed. 667, 672, 675, L.R.A. 1917D, 1,37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N.C.C.A. 943; Mountain Timber Co. v. Washington, 243 U.S. 219, 336,61 L.Ed. 685, 695, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D, 642, 13 N.C. C. A. 927." Arizona Copper Co. v. Hammer, 250 U.S. 400,39 Sup. Ct. 553, 63 L.Ed. 1058, 1071, 6 A.L.R. 1537.
The federal decisions may be concluded by a reference to the case involving the Emergency Housing Laws for the District of Columbia and that of the Legislature of New York. In Levy Leasing Co. v. Siegel, and 810 West End Ave. v. Stern, 258 U.S. ___, 42 Sup. Ct. 289, 66 L.Ed. ___, in error to the Supreme Court of the state of New York to review a judgment entered pursuant to order of the Court of Appeals of that state, which affirmed an order of the Appellate Division of the Supreme Court, affirming an order of the Special Term of the Supreme Court denying a motion by plaintiff for judgment upon pleading in an action for rent, the insistence is made that the case was ruled by Brown Holding Co. v. Feldman, 256 U.S. 170,41 Sup. Ct. 465, 65 L.Ed. 877; Block v. Hirsh, supra; that the relation of landlord and tenant is a private one, and is not so affected by a public interest as to render it subject to regulation by the exercise of the police power. Mr. Justice Clarke, delivering the opinion, said of the last-named cases that the emergency declared existed when the acts were passed. The terms of the housing laws were held to meet an emergency designed by the Legislature to promote the health, morality, comfort, and peace of the people of the state, and were declared to be a proper resort to the police power to promote the public welfare; and it was declared that there is no inherent difference in property in land from that in tangible and intangible personal property as exempts it from the operation of the police power in appropriate cases, and that the existing circumstances clothed the letting of buildings for dwelling purposes with a public interest sufficient to justify restricting property rights in them to the extent provided for in the statutes in question.
It should be noted that provisions of the Emergency Housing Laws challenged were:
"It shall be a defense to an action for rent accruing under an agreement for premises in a city," etc., "occupied for dwelling purposes, that such rent is unjust and unreasonable, and that the agreement under which the same is sought to be recovered is oppressive." Chapter 944.
Section 4 of said chapter provides that nothing contained therein shall prevent a plaintiff from pleading and proving in such action a fair and reasonable rent for the premises. Mr. Justice Clarke quotes from the Marcus Brown Co. Case as follows:
"The chief objections to these acts have been dealt with in Block v. Hirsh. In the present case more emphasis is laid upon the impairment of the obligation of the contract of the lessees to surrender possession, and of the new lease, which was to have gone into effect upon October 1, last year. But contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be. Manigault v. Springs, 199 U.S. 473, 480, 50 L.Ed. 274, 277,26 Sup. Ct. 127; Louisville N. R. Co. v. Mottley, 219 U.S. 467, 482,55 L.Ed. 297, 303, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. 265; Chicago A. R. Co. v. Tranbarger, *Page 584 238 U.S. 67, 76, 77, 59 L.Ed. 1204, 1210, 1211,35 Sup. Ct. 678; Union Dry Goods Co,. v. Georgia Pub. Service Corp.,248 U.S. 372, 375, 63 L.Ed. 309, 311, 9 A.L.R. 1420, P. U. R. 1919C, 60, 39 Sup. Ct. 117; Producers' Transp. Co. v. Railroad Commission, 251 U.S. 228, 232, 64 L.Ed. 239, 242, P. U. R. 1920C, 574, 40 Sup. Ct. 131."
In Block v. Hirsh, supra, the statute construed Act Cong. Oct. 22, 1919, c. 80, tit. 2, § 109 (41 Stat. at L. 297, 298, 301). That for consideration in Brown Holding Co. v. Feldman, supra the "Stay Law" of New York (Laws 1920, c. 942, 944, 947), made applicable to cities having a population of a million or more, suspending until November 1, 1922, the right of the landlord to recover possession of real property occupied for dwelling purposes, except where the person holding over is objectionable or where the landlord seeks to occupy the premises as a dwelling for himself and his family, or intends to demolish the building and construct a new one, providing that the tenant or occupant is ready, willing, and able to pay a reasonable rent. Especial emphasis was laid in the latter case: (1) Upon the impairment of the obligation of the contract of the lease to surrender possession. Of this Mr. Justice Holmes observes: "But contracts are made subject to this exercise of the power of the state when otherwise justified," and cites many federal authorities to support the view. And (2) that the laws are discriminating in respect of the cities affected and the character of buildings dealt with. The classification was held to be justified, as the "evil to be met was a very pressing want of shelter in certain crowded centers."
The effect of the decision in Levy Leasing Co. v. Siegel, supra, is that a standard sufficiently definite to satisfy the due process of law clause of the federal Constitution is adopted by the provisions of New York Laws 1920, c. 944, enacted in the exercise of the police power in the emergency growing out of the World War, that it shall be a defense to an action for rent accruing under an agreement for the rental of premises occupied for dwelling purposes that such "rent is unjust and unreasonable, and that the agreement is oppressive, provided, however, that plaintiff may plead and prove in such action a fair and reasonable rent for the premises, and recover judgment therefor." See Wood v. Vogel, 204 Ala. 692, 87 So. 174; Amer. L. Co. v. Zeiss, 219 U.S. 47, 31 Sup. Ct. 200,55 L.Ed. 82; Gormley v. Clark, 134 U.S. 338, 10 Sup. Ct. 554,33 L.Ed. 909.
The foregoing will suffice to show the validity of the Alabama statute, without reference to other statutes that have been sustained by state and federal courts, where tests have been supplied by reference to rates fixed by public service commissions or other governmental agencies under delegated legislative discretion or administrative powers, furnishing abundant examples. Johnson v. Craft, supra; Whaley v. State,168 Ala. 152, 52 So. 941, 30 L.R.A. (N.S.) 499.
If the test declared by the Kentucky statute — "of the market value under fair competition and under normal marketconditions" — had been merely "the market value" without regard to unfair competition and abnormal conditions of themarket, we apprehend the statute would not have been declared offensive to the due process clause of theFourteenth Amendment. The Alabama statute declares the test as being a due regard to the cost price in relation to the market value, and not, as did the Kentucky statute, "the market value under faircompetition and under normal market conditions." That is to say, the foregoing are the respective tests in the two states for the ascertainment or declaration of whether or not the acts condemned by the two statutes were a cheat or fraud.
To determine his conduct, according to the circumstances and actualities of life, or by reference to "knowable criteria" (using the language of the Supreme Court of the United States), the defendant was not required by the Alabama statute, at the time of the commission of the act on which the indictment is rested, to speculate upon imaginary conditions, the value under "normal market conditions" and "fair competition," or of the "real value" after eliminating abnormal influences of combinations to affect the price. He was only required to look to the cost price of the necessity to him as related to the cost price of such article or commodity on the market at the time of the sale or offer of sale. When so doing he ascertained, or may have done so, his good faith or his culpability — between the "two extremes of the obviously illegal and the plainly lawful" — and he was thus informed of his general duty in the matter to himself and to the purchaser as a member of the general public. The conditions thus imposed by a state statute on a person, as stated in Internl. H. Co. v. Kentucky, supra, "are as permanent as anything human, and a great body of precedents" heretofore cited from our statutes. When these conditions are coupled with familiar practices, it is made "comparatively easy" by the exercise of common sense and common honesty for any and every person to keep to what is safe and to avoid what is a fraud or cheat upon his customer as a member of the general public whose welfare is sought to be conserved by the police regulation in question.
It follows from the foregoing that section 2 of the Alabama statute is not offensive to any of the provisions of theFourteenth Amendment to the Constitution of the United States, is within the police power of state government, enabling defendant to know and to demand the nature and cause of the accusation for a crime ascertained by law, does not deprive any person of his property except *Page 585 by due process of law, and impairs no obligation of contract. Const. Ala. §§ 6, 7, 22; Singer S. M. Co. v. Brickell,233 U.S. 304, 34 Sup. Ct. 493, 58 L.Ed. 974.
The discussion may be closed with the observation that it is a general rule of construction, followed by the Supreme Court of the United States, that statutes should be construed fairly in such a way as to avoid doubtful constitutional questions; and it is to be presumed that state laws will be construed in that way by the state courts. U.S. ex rel. Atty. Gen. v. D. H. Co., 213 U.S. 366, 407, 408, 29 Sup. Ct. 527, 53 L.Ed. 836; Fox v. Washington, supra. When the Alabama statute is construed by this court as confined to the preventation of frauds and cheats, the insistence that the act is both an unjustifiable restriction of the use and right of property and too vague for a criminal law must fail. Fraudulent intent is a mere condition of the mind, and constitutes an ultimate fact in the definition of any offense of which it is made an ingredient. 16 Ann. Cas. 1231, and authorities.
This is aside from the rule that if a statute is fairly susceptible of two constructions, we should adopt that which will uphold the statute, even though it be the less natural. Quartlebaum v. State, 79 Ala. 1, 3; State ex rel. Collman v. Pitts, 160 Ala. 133, 146, 41 So. 441, 686, 135 Am. St. Rep. 79. See authorities collected in Williams v. Schwarz, 197 Ala. 40,46, 72 So. 330, Ann. Cas. 1918D, 869; Dartmouth College v. Woodward, 4 Wheat. 518, 625, 4 L.Ed. 629; Fletcher v. Peck, 6 Cranch, 87, 3 L.Ed. 162; Sweet v. Rechel, 159 U.S. 380, 393,16 Sup. Ct. 43, 40 L.Ed. 188. We have indicated the duty to follow the natural construction to which the statute is fairly susceptible to declare the legislative will in its enactment to prevent frauds and cheats.
We may conclude the matter by saying it must be conceded that the Legislature of any state may enact a statute providing that proof of one fact shall constitute prima facie evidence of another related fact. Adams v. New York, 192 U.S. 585, 588,24 Sup. Ct. 372, 48 L.Ed. 575. That is to say, the facts so employed in establishing presumptions declaring the burden of proof, or evidentiary of another fact, must be related. Bailey v. Alabama, 219 U.S. 219, 31 Sup. Ct. 145, 55 L.Ed. 191; McFarland v. Amer. Sugar Ref. Co., 241 U.S. 79,36 Sup. Ct. 498, 60 L.Ed. 899. The related evidentiary facts, or presumptions to be drawn therefrom, employed in declaring rules respecting the burden of proof or by which the same may be respectively discharged, are clearly within the legislative powers of the state governments (Hawkins v. Bleakly,243 U.S. 210, 214, 37 Sup. Ct. 255, 61 L.Ed. 678, Ann. Cas. 1917D, 637); and a provision so employed in a state statute, "not unreasonable in itself and not conclusive of the rights of the party, does not constitute a denial of due process of law" (Mobile, J. K. C. R. Co. v. Turnipseed, 219 U.S. 35, 42,31 Sup. Ct. 136, 55 L.Ed. 78, 32 L.R.A. [N. S.] 226, Ann. Cas. 1912A, 463; Hawes v. Georgia, 257 U.S. 1, 42 Sup. Ct. 204, 66 L.Ed. ___). The related facts employed in the Alabama statute for construction are, on the one hand, the price at which the defendant sells or attempts to sell the article, commodity, or necessity of life, and, on the other, its cost price to the person selling or offering the same for sale and the cost price on the market of articles, commodities, or necessities of like kind or character. Such facts tending to show value are reasonably related and not conclusive of the rights of the party; and the reasonable presumptions raised or which may be drawn from such related facts are such as are within the rules of disputable presumptions permitted and defined by the decisions of the Supreme Court of the United States. Bailey v. Alabama, supra; McFarland v. Amer. Sugar Ref. Co., supra. The part of the statute for construction is free from constitutional objection.
McCLELLAN, J., joins in the dissent.
1 Ante, p. 179.
2 206 Ala. 263.