PROPERTY, PRIVACY, POLICE POWER, AND PROHIBITION ENFORCEMENT: THE JUDICIAL RESPONSE TO THE INTOXICATING LIQUOR LAWS IN FLORIDA, 1885-1935 By JOHN J. GUTHRIE, JR. A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 1993 Copyright 1993 by John J. Guthrie, Jr. To my father ACKNOWLEDGMENTS The debt that I owe to the people in my personal and professional life who have helped me complete this dissertation is far greater than I can credit with words. These individuals have enabled me to do a task that, at times, seemed beyond my reach. To them I feel deeply obliged. First, I want to extend my utmost appreciation to Kermit L. Hall, who once said, "A mentor has to be demanding but open, critical yet encouraging, and sensitive yet honest." He has met these standards and more. He labored through rough drafts of this dissertation, chapter by chapter, and made generous comments and perceptive criticisms. By that, Dr. Hall allowed me to see the real merit in my work. No student could ask for more in a mentor. I also must thank the other members of my supervisory committee who have contributed to my academic growth. William J. Frazer has encouraged and supported my work on this project since its inception. C. John Sommerville deserves recognition for guiding me through some important works in English history that have deepened my understanding of Anglo-American constitutionalism. Bertram Wyatt-Brown, through his scholarship and through his sound advice, has influenced me in more ways than he probably realizes. I owe George E. Pozzetta iv for broadening my "conceptualizations" shortly after I embarked on my doctoral program at the University of Florida. He also provided me a valuable learning experience as his research assistant during the summer of 1988. Thanks, too, to Julian M. Pleasants, who exemplifies the teacher-scholar. By complementing insightful analysis with good humor, he is both brilliant and captivating. I want to acknowledge the efforts of several librarians and archivists who eased my research. Fred Harden at the Daytona Beach Community College Library obtained material through inter-library loans, saving me time, effort, and travel expense. Nancy Dobson, of the Florida Supreme Court Historical Society, provided valuable information pertaining to the state's high court. Mary Ann Hawkins of the Atlanta Branch of the National Archives, deserves special praise for tolerating my naivete about accessing archival records. I want to thank Frank P. Jozsa, Jr., Pfeiffer College; Theresa Delos Santos, Daytona Beach Community College; Paul Finkelman, Brooklyn Law School; Sally A. Flocks, Georgia Legal History Foundation; and Mark L. Edwards, Department of Treasury. Each read a chapter and made suggestions that significantly improved the text. Ron Edwards, Kathryn Schoettler, and Allison Saville, however, each went the proverbial "extra mile" and proof-read the entire manuscript. Their sharp editorial eyes caught many errors that escaped v mine. Thanks to them, the final product shines when compared to earlier drafts. Several administrators of Daytona Beach Community College warrant special mention. Deans Kathleen Noble, Verl Beebe, and my immediate supervisors, Kim Belden and Glen Murphy, have not only encouraged their faculty to develop professionally but also have helped make their college a wonderful place for its faculty to teach. I applaud my graduate school friends, Jack Henderson, David Tegeder, Tim Huebner, and the Thompsons, Toni and Joe, who shared with me the rigors and rewards of seminars, qualifying exams, and doctoral dissertations. I appreciate deeply both the camaraderie that they provided as well as the occasional bed for me to sleep in. Finally, because I married in 1990, my family has become so extensive that space does not allow individual acknowledgment. Therefore, I thank you all for tolerating my neglect for so long. No one, however, has shown more patience toward me than my wife Kak. I hope someday that she will take the time and read what took me so long to write. vi TABLE OF CONTENTS page ACKNOWLEDGMENTS iv ABSTRACT ix INTRODUCTION 1 CHAPTERS 1 THE FLORIDA SUPREME COURT AND THE INTOXICATING LIQUOR LAWS: FROM LOCAL OPTION TO NATIONAL PROHIBITION, 1885-1920 36 Toward a Dry Commonwealth, 1883-1907 37 Florida Drys Attack the State's Drinking Institutions, 1907-1915 49 Property Rights and Judicial Discord 61 A Southern View of National Prohibition 84 2 A CONCURRENCE OF POWER AND PROTECTION AGAINST DOUBLE JEOPARDY 86 Federal District Courts, Interstate Commerce Law, and Intoxicating Liquors, 1905-1913 92 The Florida Supreme Court, Interstate Commerce Law, and Intoxicating Liquors, 1908-1915 103 The Judicial Consensus on Concurrent Power, 1917-1921 108 Judicial Discord: Concurrent Enforcement and the Problem of Double Jeopardy, 1921-1922 128 The Persistence of Tradition 135 3 PROHIBITION ENFORCEMENT AND FOURTH AMENDMENT PRIVACY RIGHTS: WHEN A HOUSE IS A CASTLE 140 The Florida Supreme Court Responds to Search and Seizure 144 The District Courts Respond 151 The U.S. Court of Appeals for the Fifth Circuit Responds 156 When a House Is a Castle 169 Vll 4 PRIVACY RIGHTS BEYOND AND IN THE HOME, 1923-1930 174 The Right to Privacy on a Ship 174 The Right to Privacy in an Automobile 177 The Right to Privacy in a Business Enterprise ... 181 When a House Is Not a Castle: Homicides and the Right to Privacy, 1928-1930 191 "Every Man's House Is His Castle" Reaffirmed. .. .207 New Law Confronts Old Jurisprudence 209 5 STAVING OFF LEGISLATIVE ASSAULTS ON PROPERTY RIGHTS: THE JUDICIAL CHECK ON FORFEITURE LAW.... 214 The Florida Supreme Court and Property Forfeiture 220 The Federal District Courts and Forfeiture 238 A House of Mirrors 265 6 THE REPEAL MOVEMENT IN FLORIDA: FROM NATIONAL PROHIBITION TO LOCAL OPTION, 1928-1933 268 Judicial Backlog Stemming from Prohibition Enforcement 269 The Presidential Election of 1928 271 Wet Gains 273 Report of the Wickersham Commission 277 The Great Depression Impacts an Unpopular Law... 282 Voluntary Committee of Lawyers Advocate Repeal.. 285 The Prohibition Bureau's Selective Enforcement .. 288 Turning Back Prohibition in Florida 295 Persistent Federal Enforcement 305 Changing of the Guard 309 7 THE AFTERMATH OF PROHIBITION 312 Reassessing the Police Power 313 A Tenuous Legacy 323 CONCLUSION 329 BIBLIOGRAPHY 342 BIOGRAPHICAL SKETCH 378 viii Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirement for the Degree of Doctor of Philosophy PROPERTY, PRIVACY, POLICE POWER, AND PROHIBITION ENFORCEMENT: THE JUDICIAL RESPONSE TO THE INTOXICATING LIQUOR LAWS IN FLORIDA, 1885-1935 By JOHN J. GUTHRIE, JR. MAY, 1993 Chairman: Kermit L. Hall Major Department: History This dissertation deals with the judicial response to state and federal intoxicating liquor laws in Florida from 1885-1935. It employs liberalism, republicanism, and the common law as analytical categories to illuminate an underlying theme of conflict that has characterized the American constitutional experience. The crux of this discord has turned on the inevitable tension that exists between individual rights and governmental authority. Moreover, the implementation of Florida's liquor laws coupled with National Prohibition raised the existing tension to a higher level. That is, these laws restricted individual property rights in alcoholic beverages while expanding the police power of the state. Enforcing the liquor laws thus set in motion a host of IX constitutional problems. Small wonder, then, that the burden of reconciling these matters fell to the courts. Court records underscore the significant role that judges played in mediating the strife between liberty and power. Torn between republican notions that the commonweal stood paramount to individual interest, and liberal ideals that life liberty and property remain beyond the grasp of governmental authority, judges relied on common law jurisprudence to strike a balance. By that, the judicial rulings in Florida liquor cases neither reflected vacillating public opinion nor issued from "some external stimuli." Instead, these judges acted independently. In doing so, they grounded their opinions on the cornerstones of traditional American justice: precedent and citation of authority. x INTRODUCTION Scholars have dedicated much attention to the effort to restrict or eliminate the consumption of intoxicating liquors in the United States. Since the 1920s, historians and other social commentators have attempted to uncover the essence of the prohibition movement and its impact upon American culture. Their work has enhanced a better understanding of many alcohol-related issues. These include the social function of the saloon, the organization of the temperance movement, the motivation of the reformers, as well as the ratification and repeal of the Eighteenth Amendment. Students of prohibition, however, have failed to reach a consensus; instead they have divided into two broad historiographical coalitions. 1 Important works on prohibition include Larry Engel- mann, Intemperance: The Lost War Against Liquor (New York: Macmillan Free Press, 1979); Andrew Sinclair, Prohibition: The Era of Excess (Boston: Harper and Row, 1962); Joseph R. Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (Urbana: University of Illinois Press, 1963); Ruth Bordin, Women and Temperance: The Quest