Hewlett v. Camp , 115 Ala. 499 ( 1896 )

COLEMAN, J.

In April, 1897, Tlios. G. Hewlett tendered to A. J. Camp, city clerk of Birmingham, the necessary amount of money and demanded of him a license, authorizing him to engage in the business of selling pools on horse races. Upon the refusal of the clerk to issue the license, he applied by petition to the Hon. James J. Banks, Judge of the Circuit Court, for the writ of mandau)n,s to compel the issue of the license. The petition having been denied by the judge of the circuit court, an appeal was prosecuted to this court.

The petitioner bases his claim upon an ordinance, adopted by the Mayor and Aldermen of the city of Birmingham on the 21st of December, 1896, declaring the schedule of licenses for the year 1897, in which schedule is included a license ‘ Tor selling pools on any horse race * * * in or outside of the State and an act of'the legislature approved February 16th, 1897, (Acts of 1896-97, p. 1099), which reads as follows : “Section 1. Be it enacted by the General Assembly of Alabama, that the schedule of licenses as established by the board of Mayor and Aldermen of Birmingham for said city, for the year 1897 and the ordinances adopting and establishing the same are hereby in all things ratified and confirmed.”

The claim is resisted upon the grounds that by a general law of the land approved February 26th, 1889, (Acts, 1888-89, p. 45), entitled, “An act for the better suppression of gambling,” the very business, or acts for which the ordinance of the city provided that a license might be issued, was prohibited and declared to be a misdemeanor ; (this act was construed in the recent case of The State v. Stripling, 113 Ala. 120, in which its constitutionality was upheld, and its provisions applied to pool selling on horse racing outside the State) ; also upon a general act approved February 5th, 1897, (Acts, 1896-97, p. 581), which specifically and literally prohibits the buying or selling of pools upon horse racing, or the making or taking what is commonly known as a book upon the running, pacing or trotting of horses, either within or without the State ; and upon section 5.0 of article IV of the constitution of the State which reads as follows : ‘ ‘The General Assembly shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the State.”

It is very clear that the ordinance, in so far as it undertook to legalize the selling of pools on horse racing, was in direct contravention of the general law of the land and was null and void. It is equally clear that if the legislature had undertaken to authorize the municipality of Birmingham to license and legalize the selling of pools on horse racing contrary to the general law of the land, such an act would have been in violation of the constitutional provision we have quoted, and such a statute would have been null and void.

The simple question then is, has the legislature power by indirection to defeat or avoid a plain constitutional provision? There are many decisions which hold, that the legislature may cure an irregularity or defect in the adoption of ordinances and even render valid ordinances. which, without such curative legislation, would be null and void ; but we know of no. well considered decision which has gone to the extent of holding that the legislature, by ratification, could give validity to an ordinance, which it could not legally in the first instance have authorized a municipality to adopt.—15 Am. & Eng. Encyc. of Law. pp. 997-98, and notes. The constitution of the State would afford but little protection, if its provisions could be circumvented by resorting to such artifice ; and notwithstanding all the presumptions in favor of legislation, we feel quite sure, that the legislature as a body had but little, if any conception from reading either the title or the body of the act of February 16th, 1897, supra, that there was within its provisions what seems to have been a furtive purpose to license gambling, contrary to the general law of the land as declared in the act adopted by the same body on the 5th of February, supra, just a few days prior to the act of ratification of the ordinance.

Affirmed.