City of Uniontown v. State

• Decision Date: 30 June 1905
• Parties: CITY OF UNIONTOWN ET AL. v. STATE EX REL. GLASS ET AL.
• Court: Alabama Supreme Court

39 So. 814

145 Ala. 471

CITY OF UNIONTOWN ET AL. v. STATE EX REL. GLASS ET AL.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Perry County; Daniel Partridge, Judge.

"To be officially reported."

Proceedings in the nature of quo warranto by the state, on the relation of Edwin R. Glass, Jr., and others, against the city of Uniontown and others. From a judgment of ouster, defendants appeal. Reversed.

Rehearing denied January 9, 1906.

McClellan C.J., and Denson, J., dissenting.

Mallory & Mallory, for appellants.

Charles G. Brown and Pettus & Jeffries, for appellee.

TYSON J.

This is a proceeding in the nature of a quo warranto, instituted against the municipality of the city of Uniontown, its mayor and aldermen, and one Howard, for the purpose of inquiring into their right to operate a dispensary for the sale of liquors, etc. It is averred in the information that the several parties "have usurped and exercised without grant, warrant, or authority of law, for a long space of time, to wit, five months or more last past, and still continue to usurp and exercise, the privilege and franchise of operating a dispensary for the sale of vinous, spirituous and malt liquors, and of engaging in the business of selling vinous, spirituous, and malt liquors, in said city and within the corporate limits thereof." It cannot be seriously questioned that the operation of a dispensary for the sale of liquors is the exercise of a franchise, and the right to do so must be derived under authority granted by the state; and under the statute the action may be brought in the name of the state against any person who usurps or unlawfully exercises any franchise, etc. Section 3420, Code 1896.

A municipal corporation is a person in the sense in which that word is used in this section. People ex rel. Adams v City of Oakland (Cal.) 28 P. 807. That such an action will lie against a municipal corporation, when it usurps the exercise of a franchise not granted by its charter or by law, seems to be well settled. 2 Spelling on Extraordinary Relief, § 1801; 17 Ency. Pl. & Pr. p. 396, and cases cited in note 6; State v. City of Cincinnati, 23 Ohio St. 445.

We may, under the view we take of this case, pretermit a decision of the sufficiency of the allegations of the petition, which is raised by the demurrer, and deal with the question of the right of the respondents to exercise the franchise, as presented by their answer. Their answer predicates their right to operate the dispensary upon the authority granted to the city of Uniontown under an act of the General Assembly approved February 4, 1903. Loc. Acts 1903, p. 5. This act is a local one, and the authority of respondents to exercise the franchise depends on its validity. It is urged by relator that it is invalid, because unconstitutional. This contention is based upon two grounds: First, that the notice given of the intention to apply for its enactment by the General Assembly was not such as is required by section 106 of the Constitution; and, second, because the journal of the Senate does not show that two-thirds of the quorum present of that body voted in favor of the suspension of the reading of the bill at length when signed by the presiding officer, as required by section 66 of the Constitution.

The journal of the Senate shows that the motion to dispense with the reading of the bill was passed by a vote taken by yeas and nays--yeas 21, nays 0; and shows the names of the Senators voting. It is true it does not state or recite the fact affirmatively that those voting constituted two-thirds of the quorum present; but it must be presumed, in the absence of any affirmative showing to the contrary by the journal, that there were only 21 of the Senators present when the vote was taken and the bill signed. The Senate was bound to an observance of the constitutional provision, and it will be presumed it obeyed its mandate.

This brings us to a consideration of the other objection urged against the validity of the act. This objection proceeds solely upon the insufficiency of the notice that was given. The notice was in this language: "The public will take notice that a bill will be introduced in the Legislature of the state of Alabama, during its next session, to establish a dispensary in the city of Uniontown, Perry county, Alabama for the sale of spirituous and vinous liquors, malt liquors, wines, ciders, and other intoxicating liquors." The act passed in pursuance to the notice established in the municipality of the city of Uniontown a dispensary for the sale of spirituous, vinous, and malt liquors, and authorized that municipality to operate it. For the purpose of inaugurating the business it empowered the city to invest therein a sum of money not exceeding $2,000, and to select a dispenser, who was to be paid a salary, possessing certain qualifications, and...