Alabama Alcoholic Beverage Control Bd. v. City of Birmingham, 6 Div. 996

CourtSupreme Court of Alabama
Citation253 Ala. 402,44 So.2d 593
Docket Number6 Div. 996
PartiesALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al. v. CITY OF BIRMINGHAM.
Decision Date12 January 1950

E. C. Boswell, of Geneva, and Lange, Simpson, Robinson & Somerville, of Birmingham, for appellants.

J. M. Breckenridge, of Birmingham, for appellee.

STAKELY, Justice.

This case involves the procedure which a city must pursue to determine the location within its limits of state liquor stores. The power of the municipality to establish such locations under the applicable statutes is not questioned.

Alabama Alcoholic Beverage Control Board, J. D. Adams, V. G. Oliver and Cecil Smith as complainants filed their original bill in the circuit court, in equity, against the City of Birmingham and sought the issuance of an injunction. The cause was submitted upon application for a temporary injunction, which the court denied after hearing. Sec. 1054, Title 7, Code of 1940. This appeal is from that decree. The case for the complainants was rested on the verified bill, while the respondent introduced an ordinance of the City of Birmingham which appears in the City Code as section 696.

Alabama Alcoholic Beverage Control Board was created by Act of the Legislature of 1937, General Acts 1936-1937, Ex. Sess., p. 40, which now appears as Title 29, Code of 1940. Jefferson County is a wet county. J. D. Adams is a resident of Jefferson County, and is the manager of a liquor store numbered 18, established by the board at the street address known as 2704-6 29th Avenue, North, in the City of Birmingham. V. G. Oliver is a resident of Jefferson County, and is the manager of another liquor store, numbered 75, established by the board at the street address known as 2620 31st Avenue, North, in the City of Birmingham. Cecil Smith is a resident of Jefferson County, and is the owner of the land and building thereon on which is located store number 75. The store has been leased to the board, a copy of the lease being attached to the bill as an exhibit and made a part thereof. The stores numbered 18 and 75 were established by the board on August 26, 1937 and October 15, 1947, respectively, and have since been 'constituted, conducted and operated as authorized by the aforesaid Act.'

On November 30, 1943, the City of Birmingham purported to adopt an ordinance zoning a part of the city with reference to the location of liquor stores. This ordinance reads as follows:

'Sec. 696. Zones within which liquor or wine may be sold.

'It shall be unlawful for any person, whether a liquor 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 or wine at any place in the city outside the zones hereinafter described in this section, whether such place be a state liquor store of a licensed liquor place or not, the zones within which the prohibitions of this section do not apply being as follows:' (Here follows a description of the liquor zones which need not be here set out.)

Both of the stores are located within the territorial limits of the City of Birmingham but not within that part of the city which the ordinance purports to set apart for such stores.

The sale of liquor was begun at store 18 on August 25, 1937. Store No. 75 was built in 1947 and July 10, 1947 Cecil Smith obtained a permit from the city to build the store for the specific purpose of being used as a store for the sale of liquor. The permit was set out in the bill.

After each store began operations it continuously sold liquor until November 15, 1949 when the complainants J. D. Adams and V. G. Oliver, the managers of the stores, were arrested for violation of section 696 of the City Code. Prior to that time the Alabama Alcoholic Beverage Control Board received a written notice from the City of Birmingham demanding that both stores be closed by November 15, 1949. Both managers were threatened with further arrest, respectively, in the event either reopened or continued to operate the liquor stores. It is alleged that the arrest and threats of arrest made it impossible to continue operation of the stores and that section 696 of the City Code is void for the reasons, among others, which are set out as follows:

'(a) Said ordinance was adopted by the City of Birmingham without first giving notice of the purpose of the city to adopt said ordinance required by Articles 1 and 2 of Chapter 16 of Title 37 of the Code of Alabama of 1940.

'(b) Said ordinance did not include the whole municipal territory of Birmingham in a comprehensive plan as required by law.'

The Act of the Legislature known as the Alabama Alcoholic Beverage Control Board Act now appears as sections 1 to 78, inclusive, Title 29, Code of 1940. In section 2 the declared purpose of the Act is to prohibit under the police power of the State transactions involving alcoholic beverages which take place wholly within the state, except by and under control of the board. The Act makes provision for the establishment of the board and in section 5 gives the board the right to buy, manufacture and sell alcoholic beverages and to determine the localities within which a state store shall be established and operated and the location of such store. No liquor store can of course be located in a dry county, but as to wet counties we note the broad general power given the board under section 5 as follows, 'to determine the localities within which any state store shall be established and operated and the location of such store. * * * The board shall have the power to establish and maintain state stores for the sale of liquors as herein defined.'

The board power and exclusive control, to which we have alluded, has two exceptions or provisos: (1) 'location of liquor stores shall be not be adjacent to schools or churches or in a neighborhood which is exclusively residential' and (2) 'Provided, however, that municipalities may by proper zoning ordinances establish zones or districts within which such liquor stores may or may not be established.' (Emphasis supplied.) We think it clear that neither in section 5 nor in any part of the Act is the power and authority vested in the board in any way given to the municipality, except that by a proper zoning ordinance the city may limit the power of the board as to the location of the store. So it is obvious that the case turns on the interpretation to be given the words 'proper zoning ordinance,' which appear in the statute, and at the outset in discussion these words in order to arrive at the intention of the Legislature we should note that a city has no inherent power to enact and enforce zoning regulations. In this connection we quote the following authorities: 'But municipal power to enact and enforce zoning regulations does not exist in the absence of statutory or constitutional authorization, express or implied; the municipality has no inherent power to enact zoning ordinances.' 58 Am.Jur., p. 943, § 7.

To the same effect is 43 Corpus Juris, § 364, page 335, where, in speaking of the right to zone, it is said: 'The power is not an inherent one; it can be exercised only when it is expressly conferred upon the municipal corporation or arises by necessary implication.' See, also, 62 C.J.S., Municipal Corporations, § 226.

White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84; Leary v. Adams, 226 Ala. 472, 147 So. 391.

In this State this Court has had occasion in several instances to consider zoning ordinances and in each case has been careful to point out that piecemeal or spot zoning is not permissible, but on the contrary the zoning ordinance must set out what is known as a comprehensive zoning plan. Since the court has in these cases shown what it regards as a proper zoning ordinance, it is reasonable to assume that the Legislature had these decisions in mind when it refers to 'proper zoning ordinance.' If no significance is to be attached to the words 'proper zoning ordinance' why did the Legislature not simply give the city the power to determine the location of liquor stores within its limits or state that the city could do so by ordinance?

In the case of Chapman v. City of Troy, 241...

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