Brame v. State , 148 Ala. 629 ( 1905 )

DENSON, J.

— During the session of 1880-81, of the General Assembly, ah act was passed which prohibited the sale, giving away, or otherwise disposing of vinous, spirituous, or malt liquors, or intoxicating bitters at or within certain localities in the state, which were particularly designated in the act. The locality involved in this case Avas designated in the act as íoIIoavs : “At or Avithin eight miles of the courthouse in the toAvn of Linden, Marengo county.” The act' embraced numerous localities in different parts of the state and is of that character of legislation which is generally known in legislative nonclature as an “omnibus prohibition law.” It was approved Feb. 28, 1881, and can be' found at p. 148 of the Acts of 1880-81. The defendant was indicted under this act for selling vinous, spirituous, or malt liquors at or within eight miles of the courthouse in the town of Linden, Marengo county. The defendant contends that the act of Feb. 28, 1881, above referred to, was repealed, so far as it applied to the territory within the corporate limits of the-town of Linden, by an act of the legislature approved Sept. 26, 1903, entitled “An Act to repeal an act to prohibit the sale, giving away or otherwise disposing of spirituous-, vinous, or malt liquors, or intoxicating bitters at or within certain localities in this state therein designated, to-wit: ‘at or within eight miles of the courthouse in the town of Linden, in Marengo county’ and various other places, approved Feb. 28, 1881.” The reply of the state to the contention is that the repealing act was enacted in violation of section 106 Of the Constitution, and that it also offends against section 45 of that instrument. The bill which was the basis of the repealing act was introduced in the House of Representatives on the 11th day of February, 1903, and was referred to the committee on temperance. That committee .reported the bill to the House favorably on the 28th day of February, 1903. On September 15, 1903, the bill was amended in the House by adding thereto a proviso.in the following language, namely: “Provided the repeal of this act shall apply only to the corporate limits of the town of Linden, Marengo county, Alabama, as how established or as may be hereafter established by law.” The bill as amended became the law as it now stands in the Local Acts of the Legislature, 1903, page 365. The following is the notice of the intention to apply for thé passage of the law, which was published and which accompanied the bill on its introduction as shown by the house journal: “Notice is hereby given that there will be a petition' before the next Legislature to repeal the prohibition law for Linden beat. (Signed) Many Citizens.” Here we have a notice which advises the people of the territory to be affected that there would be a petition before the Legislature to repeal the prohibition law for Linden beat, followed by an enactment which repealed the law only as to a part of the beat. Passing out of view the inaccurate verbiage of the notice, we are of the opinion that the notice was wholly insufficient to advise the people residing within the territory to be affected by the law that the repeal would apply only to the territory Of the beat embraced in the corporate limits of the town of Linden. The proviso is the very substance of the enactment and it is not to be found in the notice. Moreover, the proviso wrought a radical change in the bill as introduced and the enactment.- The bill as introduced, if it had been enacted into law, would have repealed the prohibition law throughout Linden beat, but the effect of the amendment was to repeal the law only as to the territory within the corporate limits of the town of Linden, while it left it intact as to that portion of Linden beat lying without the corporate limits of the town. The purpose for requiring the notice was that the people might be informed of the character of the legislation that would be applied for, and, being informed, that they might resist it if they desired to do so. It may be that the people were willing that the law should be repealed as to the entire beat, but not willing to limit the repeal to the town. If they were willing to the repeal as to the entire beat, the notice published would, upon being read, have given them no concern whatever, the law proposed would have been in accord with their views, but to the contrary if the notice published had confined the repealing act to the limits of Linden town. To give judicial sanction to such a change as is found in this case in the law which the notice advised the people would be applied for and the one really enacted would rob the people of the beneficient results which no doubt the framers of the Constitution contemplated would flow from an observance of section 106 of the Constitution. The substance of the repealing act Avas not embraced in the notice, and it must be condemned as having been enacted in violation of section 106 of the Constitution.—Alford v. Hicks, 142 Ala. 355, 38 So. Rep. 752; State, ex rel. Attorney General v. D. W. Speake, Judge, 142 Ala. 87, 38 So. Rep. 835. The repealing law being invalid, under the agreed statement of facts the court properly gave the affirmative charge requested by the state and refused that requested by the defendant. The license afforded no protection to the defendant.—Russell v. The State, 77 Ala. 89.

The .judgment of the circuit court is affirmed.

McClellan, C. J., and Haralson and Dowdell, JJ., concur.