DocketNumber: 3 Div. 493.
Judges: Stakely, Gardner, Foster, Lawson
Filed Date: 2/19/1948
Status: Precedential
Modified Date: 10/19/2024
Lawrence G. Steadman (appellant), who is a resident citizen of Madison County, Alabama, filed a petition for writ of mandamus against Lamar Kelly, Melvin L. Dawkins and John P. Faulk, Jr., members of the Alabama Alcoholic Beverage Control Board, to require them to issue him a license to sell beer at his place of business which is located in Madison County, Alabama, but outside the limits of the police jurisdiction of any town, city or municipality. The petition alleges that the Alabama Alcoholic Board has unlawfully and without authority of law refused to issue to petitioner a license for the year 1947 to sell beer in Madison County, Alabama.
All of the allegations of the petition are admitted by the respondents except that they deny that they have unlawfully refused to issue to the petitioner the license for which he applied. The respondents state in their answer that their refusal to issue the license was solely by virtue of local act No. 472 passed by the Regular Session of the Legislature of 1947. Loc. Acts 1947, p. 331. The title of the act is as follows: "To regulate the sale of alcoholic beverages in Madison County." The pertinent provision of the act is found in § 1, as follows: "It is unlawful for any person, firm, corporation, or association to sell or offer to sell any spirituous or vinous liquor in Madison County except at Alabama Alcoholic Beverage Control Board liquor stores, or to sell or offer to sell within *Page 248 such county any malt or brewed beverages except within the police jurisdiction of an incorporated municipality thereof."
The court denied the petition for mandamus and hence this appeal.
It is the serious insistence of the appellant that the foregoing local act of the legislature is void and of no effect because it violates Article IV, § 45 of the Constitution of Alabama and because it violates Article IV, § 105 of the Constitution of Alabama. Obviously if the local act is invalid, then the rights of petitioner are governed by the general law as found in Chapter 1, Title 29, Code of 1940.
Section 45 of Article IV of the Constitution of Alabama requires that "each law shall contain but one subject, which shall be clearly expressed in its title," with certain exceptions not here applicable. The purposes of this section have been stated so often as not to require restatement here. State v. Nelson,
In the case of Ajax v. Gregory,
In the case of Churchill v. Common Council of City of Detroit,
In the case of City of Tacoma v. Keisel,
In the case of Territory v. Miguel,
In the case of State ex rel. Thornbury v. Gregory,
In the case of General Outdoor Advertising Co. v. Department of Public Works,
It is worth noting that in the case of United States v. Hill,
"The power of Congress, it is true, is to regulate commerce, which is ordinarily accomplished by prescribing rules for its conduct. That regulation may take the character of prohibition, in proper cases, is well established by the decisions of this court. * * *."
This court has had occasion to comment on the meaning of the words regulate and prohibit. In the case of Ivey v. Railway Fuel Co.,
In the case of Ex parte Byrd,
The statute under consideration does not prohibit the sale of spirituous or vinous liquors throughout Madison County but merely provides that such beverages cannot be sold except at the Alabama Beverage Control Board Local Stores and except that any malt or brewed beverages cannot be sold in the county except within the police jurisdiction of an incorporated municipality thereof. In other words, the prohibition against the sale of the foregoing beverages is not such as to end it fully, completely and indefinitely within Madison County, but confines the sale to the local stores of the Alabama Beverage Control Board and to certain localities within the county. The act recognizes the right to sell in Madison County but subjects the sale to certain regulations as to locality.
In passing on the contentions of the appellant we should consider the Alabama authorities relied on by the appellant. In the case of Yahn v. Merritt, Judge,
The pertinent provisions of the act read as follows: "From and after the passage of this act it shall be unlawful for any person or persons to sell, barter, exchange, give away, deliver or otherwise dispose of any spirituous, vinous or malt liquors or intoxicating bitters, or any other intoxicating drink in Geneva County, except in incorporated towns that are under police regulations which are of force and effect." Section 1.
In that case the court held that the body of the act was inconsistent with its title as the act not only regulated the sale of liquors but also the giving away of liquors.
In the case of Ex parte Cowert,
" 'To amend section 1 of an act approved January 16, 1879, and entitled 'An Act to amend Section 12 of an Act to establish a new charter for the town of Union Springs', approved February 1, 1876."
Section 12 of the act of 1876 as amended by the act of 1879 provided solely for the assessment, levy and collection of taxes for selling liquors for the support of the municipality.
In Miller v. Jones,
The body of the act, however, provided as follows: "Whenever 50 or more residents, householders and freeholders of Talladega County file in the office of the Judge of Probate of said county, a petition in writing, praying for an election to ascertain the wishes of the people of said county as to the prohibition of the sale of intoxicating liquors in said county, it shall be the duty of said judge to order an election and fix the time for holding the same."
From the foregoing it appears that the provisions of the body of the act provided for an election to ascertain the wishes of the people for a complete prohibition of intoxicating liquors. As pointed out, this is not the situation in the provisions of the local act under consideration in the case at bar.
Morgan v. State,
We conclude that the local act under consideration does not infringe § 45 of Article IV of the Constitution of Alabama because the provisions of the body of the act are by fair intendment connected with and cognate to the subject expressed in the title of the act. Alabama Great Southern Railroad Co. v. Reed,
II. There can be no doubt that the legislature had the power under Article IV, § 104 of the Constitution of Alabama to enact the local act here involved. We quote from § 104 of the Constitution of Alabama as follows:
"The legislature shall not pass a special, private, or local law in any of the following cases:
"(1) Granting a divorce;
"(2) Relieving any minor of the disabilities of nonage;
"(3) Changing the name of any corporation, association, or individual; * * *
"(31) Declaring who shall be liners between precincts or between counties;
"The legislature shall pass general laws for the cases enumerated in this section, provided that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in section 106 of this constitution."
It appears from the foregoing that the legislature has the authority to enact local acts when deemed advisable for the regulation or prohibition of the liquor traffic. It is earnestly contended, however, that under Article IV, § 105 of the Constitution of Alabama, the legislature had no power to enact the local law here involved. This section of the constitution reads as follows: "No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any *Page 251 such special, private, or local law by the partial repeal of a general law."
The Alabama cases hold that "Section 105, as repeatedly held by this court, does not inhibit local legislation on subjects not enumerated in section 104, where the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law, notwithstanding there is a general law dealing with the subject or system affected by the local law." Polytinsky v. Wilhite,
In the case of Standard Oil Company v. Limestone County,
In Talley v. Webster, supra, this court held that a local act changed the general act which regulated the jurisdiction of suits in justice courts in Mobile County. In that case in holding the local act constitutional with reference to § 105, this court said: "We need not review the numerous cases construing this section. Suffice to say it does not inhibit the passage of local laws on subjects, not prohibited by section 104, merely because such local law is different, and works a partial repeal of the general laws of the State in the territory affected." See also Walker County v. Barnett,
We think it clear from a consideration of the foregoing Alabama cases that there was no violation of § 105, Article IV of the Constitution of Alabama.
We conclude that the court acted correctly in denying the petition for the writ of mandamus.
Affirmed.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.