Ashurst v. State , 79 Ala. 276 ( 1885 )

SOMERVILLE, J.

The defendant was indicted for selling spirituous liquors without license, and contrary to law. He justified under a license, which the court, in effect, pronounced to be void, because of the existence of a prohibitory liquor law, which, in the opinion of the court, was of force within four miles of the factory of the Tallassee Palis Manufacturing Company.

It is our opinion that this ruling of the court was free from error.

The prohibitory law in question derived its origin and force from an act of the legislature, approved January 29, 1852, entitled “An act to incorporate the Tallassee Manufacturing Company Number One,” which may be found in the Session Acts of 1851-52, pp. 262-264. It was enacted, in section 4 of this law, that “if any person or persons shall sell ardent, spirituous, or intoxicating liquors, within four miles of the factories of said corporation, by the retail or otherwise, such person or persons shall be subject to indictment in the Circuit Court of the county in which such selling or retailing was done, and be liable to all the pains and penalties then in force against retailing without license.”

The case presented, in the first instance, is the familiar one of a law enacted by the legislative department of the government, which was to take effect upon a contingency. This contingency was, by necessary implication, the corporate organization of, and commencement of business by the company, evidenced by the construction and operation of a factory or factories. When this event transpired, the law was immediately put in force, and was as valid as if the legislature had expressly prohibited the sale of spirituous liquors within four miles of the place where these factories were located. It became at once a fixed rule of conduct, prescribed by the supreme power of State, and operating upon all persons within the locality. How could its operation be suspended or destroyed, except by a new act repealing it, or by its expiration from some fact which limits its continued existence as a law of the land? It is not contended that the act has been repealed, either expressly, or by any repugnant statute. The only contention is, that it has ceased to operate because the property of the corporation in question was sold out, under the decree of the Chancery Court, and purchased by private persons, who have organized another corporation, which continues the same business, in the same locality, under the name of the Tallassee Falls Manufacturing Company. This repeal, thus contended for, is one by implication, which is not favored by the law. The argument for it is based on the idea, that the law was a chartered privilege of the dissolved corporation, and did not attach to the locality after its dissolution. We see nothing to justify this construction. The reason for the continuance of the law is just as great after the old company ceased to exist as before, in view of the fact that its purpose was to protect the owners and employees of a factory against the evils incident to the sale of intoxicating liquors, and the same kind of business has been continued in the same place by the owners of the same property.

The charge of the court being free from error, the judgment is affirmed.

Clopton, J., not sitting.