Hare v. City of Birmingham , 39 Ala. App. 89 ( 1957 )

CATES, Judge.

Parsons bought beer on Sunday at the Club Belvedere in Birmingham from Hare. The Club Belvedere had a State and city liquor license. Hare’s selling was adjudged a violation of a city ordinance making it an offense to sell beer on Sunday.

The applicable section (699) of the General City Code, as amended, is as follows:

“It shall be unlawful for any person, whether a liquor or beer licensee or not, to sell or offer for sale, or to serve or dispense for reward or offer to serve or dispense for reward, any liquor, wine, malt beverage or brewed beverage in either of the zones described in Section 696 or in any liquor licensed or beer licensed place, or elsewhere in the city, at any time on Sunday or Christmas Day, or between one o’clock, a. m., of any secular day and nine o’clock a. m., of the same secular day, or between the beginning of any day in which an election is being conducted in the city and the time of such day fixed by law for the closing of the election polls in the city.”

Parsons was not a member of the club. The record is silent as to whether or not Hare was a servant, agent or concessionaire of the club. The record does not show who owned the beer.

Counsel in briefs have indicated that this is one of three test cases involving the sale or consumption of alcoholic beverages in social clubs. See Tarrant v. City of Birmingham, Ala.App., 93 So.2d 925 ¹; Gulas v. City of Birmingham, Ala. App., 94 So.2d 767². “Test cases” can only be authority for facts within the same governing principle so that our opinions-cannot be advisory of matters not in controversy.

The ordinance derives from the Act set out as Code 1940, Title 62, § 654, as-amended; and, accordingly, Livingston v. Scruggs, 18 Ala.App. 527, 93 So. 224, does-not set forth a principle applicable to the: City of Birmingham. We hold the ordinance valid and the evidence sufficient to-make out an offense thereunder.

Under the ordinance and the evidence,, the judgment below must be affirmed.

Affirmed.

1 . Ante, p. 55.

2 . Ante, p. 86.