Hall v. Steele , 82 Ala. 562 ( 1886 )

CLOPTON, J.

The judge of probate based his refusal to issue to the appellant a license to sell vinous or spirituous liquors in the town of Leighton, on an act passed during the last session of the General Assembly, “to prohibit the sale, giving away, or disposing of any spirituous, vinous, or malt liquors, or intoxicating bitters, beverages or drinks, or fruits preserved in alcohol or alcoholic liquors,” in a number of enumerated localities in different parts of the State, the town of Leighton being one of them. The act was originally introduced as a bill “to prohibit the sale or giving away of spirituous, vinous, or malt liquors, and other intoxicating beverages, in the county of Montgomery, outside of the corporate limits and police jurisdiction of the city of Montgomery;” and in this form was passed by the Senate. In the House of Representatives, a substitute was adopted by -way of amendment, extending the provisions of the bill to-numerous other localities; and the title was correspondingly changed, and the act was eventually passed as published in Pamphlet Acts 1886-87, p. 665. It is insisted^ that the act is violative of section 19 of Article IV of the constitution, for the reason, that the bill was so altered or amended on its passage as to change its original purpose.

This clause of the constitution we fully considered and construed in Stein v. Leeper, 78 Ala. 517, when the constitutionality of a statute having the same purpose, and in this respect substantially a similar legislative -history, was under consideration. We held, that the original purpose of the bill, being local prohibition, was not altered or changed by increasing by amendment the localities in which the act should have operation ; that such were extensions, and not changes of the purpose. We find no reason to depart from the construction then placed on the clause of the constitution referred to.

It is further insisted, that the act was not passed in accordance with the constitutional requirements, and is therefore invalid. This contention is founded on two grounds : that the manner in which the bill was amended and passed repels the presumption, that the notice of the intention to apply for the passage of a local or special law was given in compliance with the constitutional provision ; and on the supposed omission of the journal to show that the report of the committee of conference, to whom the bill and amendments were referred, was adopted, by the Senate in the manner provided by section 22, of Article IV of the constitution. We have uniformly held, that -when the constitution does not require the journals to affirmatively show that a particular thing, necessary to the validity of the legislative action, was done, mere silence will not invalidate, and in such case we will presume that the legislators observed their obligation, and did not pass such bill without sufficient proof that the proper notice had been given. The unconstitutionality of an act enrolled, authenticated by the signatures of the presiding officers, and approved and signed by the Governor, must be affirmatively and clearly shown, before the courts are authorized to treat it as void, because not having been passed in accordance with the rules of parliamentary law prescribed in the constitution.—Walker v. Griffith, 60 Ala. 861; Clark v. Jack, 60 Ala. 271. It is consistent with all the proceedings shown by the journal, that notice had been previously given in respect to each of the included localities.—Harrison v. Gordy, 57 Ala. 49.

As to the other ground of objection, counsel are mistaken in their supposition. The journals show, that the report of the committee of conference was concurred in by each House, by a vote of a majority thereof taken by yeas and nays. — House Journal, 1886-87, p. 1010; Senate Journal, 1886-87, p. 700.

Under section 4448 of the Code of 1876, the act did not go into effect until thirty days after the adjournment of the legislature, which occurred February 28, 1887. The application for the license was made about a week before the expiration of the thirty days. On this ground, it is contended, that the refusal’ of the judge of probate to grant the license under the general law is without lawful excuse. We shall not now consider, whether it was the duty of the probate judge, at the time the application was made, to issue a license to sell vinous or spirituous liquors covering the balance of the year, with knowledge of the passage of a law, wnich would go into effect within a few days thereafter, prohibiting the sale of such liquors. If it were conceded that the petitioner was entitled to a license when he made application, and to relief when these proceedings were instituted, the act is now in force, and the time has expired when the petitioner had a clear legal right to a license. The consequence is, a writ of mandamus will not be awarded, to compel the judge of probate to authorize the petitioner to commit, what is now a criminal offense. Comer v.Bankhead, 70 Ala. 136; Ex parte Shaudies, 66 Ala. 134.

Affirmed.