Allen v. State

• Decision Date: 17 April 1913
• Parties: ALLEN et al. v. STATE ex rel. ROWE et al.
• Court: Alabama Supreme Court

61 So. 912

181 Ala. 383

ALLEN et al. v. STATE ex rel. ROWE et al.

Supreme Court of Alabama

April 17, 1913

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Bill by the State, on the relation of W.R. Rowe and others, against Frank L. Allen and others for writ of injunction and a seizure against the sale of intoxicating liquors in the town of Citronelle. From a decree for relators, respondents appeal. Affirmed.

The facts of the allegations are that Frank Allen and the others named as corespondents, who are in the employment of said Frank Allen, are engaged in the sale of spirituous, vinous or malt liquors in a certain building within the corporate limits of the town of Citronelle, Ala., and that in said building they have stored and keep for sale such liquors and sell them. But Allen has a retail liquor license, and has paid the requisite tax for the same, but that Citronelle is not a town in which it is lawful to sell, give away, or otherwise dispose of such liquors, in that it has not a policeman or marshal continually employed, but that, in fact has no marshal or policeman at all, and has no police protection of any sort.

Webb &amp McAlpine, of Mobile, for appellants.

R.P. Roach, of Mobile, for appellees.

McCLELLAN J.

The bill exhibited by the state on the relation of W.H. Rowe et al. would invoke the injunctive power authorized by the Fuller and Carmichael Bills (Acts Sp.Sess.1909, pp. 8 and 63, respectively) to abate liquor nuisances. Fulton v. State, 171 Ala. 572, 586, 54 So. 688 et seq. By section 10 1/2 of the Parks Bill (Gen.Acts 1911, p. 30) it is provided: "The sale of spirituous, vinous, malt and other intoxicating drinks and beverages enumerated in this bill, shall not be permitted outside the corporate limits of cities or towns, nor shall the sale of such drinks and beverages be permitted in any town which has not at least one policeman or marshal continually employed." By section 2 of the Smith Bill (Gen.Acts 1911, p. 250) it is provided: "That there be and is hereby created an excise commission for each city or town wherein the manufacture and sale of spirituous, vinous or malt liquors under license is authorized," etc. By section 9 of the Smith Bill (Gen.Acts 1911, p. 255) it is provided: "That no license to manufacture or sell spirituous, vinous or malt liquors outside of the corporate limits of a city or town with at least one marshal or policeman shall be granted."

Under these provisions, which are of effect in Mobile county, it is plain that no license to sell or manufacture spirituous, vinous, or malt liquors can lawfully issue where the municipality in which it purports to warrant the traffic has not police protection described therein. An attempt to issue a license in any town or city without such police protection is a violation of the express prohibition of the laws quoted, and, if one holding such vain, only apparent, authorization, sells or manufactures such liquors, he cannot, of course, find protection from the consequences that attend an illegal, unauthorized traffic in such liquors. Whether a municipality shall preserve the peace and safety of its people through a police officer or officers is committed to the discretion of its governing authority. Pol.Code,§§ 1171, 1251. We know of no positive law requiring the selection or retention of a police officer or officers in the town of Citronelle. None, to that effect, has been called to our attention. Hence there is no power in the courts to exact the employment of that means for the preservation of the peace and the safety of the people in municipalities in this state.

Except as repealed by repugnant provisions of the Smith and Parks Bills, the Fuller and Carmichael Bills are in force in those counties in which the manufacture and sale of spirituous vinous, and malt liquors has...