Cooke v. Loper

• Decision Date: 16 May 1907
• Citation: 44 So. 78,151 Ala. 546
• Parties: COOKE, CITY CLERK, v. LOPER.
• Court: Alabama Supreme Court

44 So. 78

151 Ala. 546

COOKE, CITY CLERK, v. LOPER.

Supreme Court of Alabama

May 16, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Petition for mandamus by J. B. Loper to compel C. T. Cooke, the clerk of the city of Bessemer, to issue him a license for the sale of liquor by retail. The city court awarded the rule nisi and from this judgment this appeal is prosecuted by defendant. Reversed and rendered.

B. G Perry and Estes, Jones & Welch, for appellant.

Pinkney Scott and Thomas T. Hney, for appellee.

DENSON J.

This is a proceeding by mandamus to compel the respondent, as clerk of the city of Bessemer, to issue to the petitioner a license to retail vinous, spirituous, and malt liquors at No. 113 Twenty-First street, in said city. There are 28 grounds set down in the assignment of errors; but we think the discussion of only a few of these will bring us to an intelligible conclusion with respect to the vital issues in the cause without the necessity of pursuing in detail its meanderings through the city court.

The charter of the city, approved December 13, 1900 (Acts 1900-01, p. 444), confers on the board of mayor and aldermen the power to license, regulate, and restrain the sale, giving away, or otherwise disposing of vinous, spirituous, malt, and other intoxicating liquors, bitters, and beverages within certain designated limits embraced in the territory of the city. The charter further provides that the board shall have the power to revoke and cancel any license issued for the sale of such liquors, when in the opinion of the board the public safety, peace, good order, or decency may require. It is settled law that, under a charter of this kind, a city may license, regulate, or prohibit the sale of intoxicating liquors of all descriptions. Smith v. Town of Warrior, 99 Ala. 481, 12 So. 418; Ex parte Sikes, 102 Ala. 173, 15 So. 522, 24 L. R. A. 774. The board of mayor and aldermen passed an ordinance fixing the amount to be paid for the privilege of retailing vinous, spirituous, and malt liquors at $600. By section 5 of the same ordinance it is previded that "before any license (liquor license) shall be issued to any person, firm or corporation, the person so desiring to take out such license shall make his application to the committee heretofore authorized by the city council of Bessemer and appointed by the mayor, or to such other committee, general or special, which the council may see fit to create for such purpose, which application shall state the location, the number of entrances, and from what streets or alleys, and such other facts as the said committee may deem reasonably necessary to be stated, and such license shall not be issued unless the application is approved by said committee. The said committee shall have power to inquire into the matter stated in the application and all other matters concerning the propriety of issuing such license, and if in their opinion the locating of a saloon would disturb the public peace, or in any way interfere with the police regulations and good order of the city, or for any other good reason, they may refuse to grant such application, and the applicant shall have the right to appeal to the next regular meeting of the council." The charter provides that "the government of the city shall consist of and its corporate powers be exercised by a mayor and ten aldermen." And we have seen that the power to license is vested by the charter in the board of mayor and aldermen. However, we think the word "council," as used in the ordinance, must be interpreted as referring to and meaning the board of mayor and aldermen; no such governing board as "council" being mentioned in the charter and it being obvious that the word "council" refers to the governing board of the city. Therefore we may read the ordinance as though the words "board of mayor and aldermen" were used, instead of "council."

This section of the ordinance is not mentioned in the application for mandamus, but has been brought forward by the respondent in the answer to the rule nisi; and it is alleged in the answer that the application for the license was made by the petitioner under the ordinance, and that the committee refused the license, that the petitioner appealed to the council, and that the council sustained the action of the committee and refused the license. The ordinance is attacked by the petitioner on the theory that it reserves to the committee and the council the right to grant or withhold the license, as may suit their pleasure, and admits of the opportunity for the exercise of an arbitrary discrimination. The case of City Council of Montgomery v. West (Ala.) 42 So. 1000, is relied on by the petitioner (appellee) to sustain his contention. In that case a city ordinance forbidding the operation of steam engines, planing mills, foundries, blacksmith shops, etc., was held invalid, on the theory contended for here by the petitioner. The court expressly states in the opinion, however, that the stationary engine (the thing there in question) is not of itself a nuisance, even if erected and used in the midst of a populous city. A careful reading of the opinion and of the cases cited therein will disclose that a distinction is made, in respect to the power of a city to pass ordinances regulating business, between businesses which are legitimate in themselves, and in which any citizen may of common right engage, and that class of businesses in which no citizen may of common right engage. In other words, the business of retailing intoxicating liquors is not in the category with businesses not vicious within themselves, when it comes to the exercise of the police power with respect to it. No person has or enjoys a vested right to have a liquor license. As well said by Justice Field, in the case of Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620: "Not only may a license be exacted from the keeper of the saloon before a glass of his liquors may be disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale may be absolutely prohibited. It is a question of public expediency and public morality. The police power of the state is fully competent to regulate the business--to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to sell intoxicating liquors at retail. It is not a privilege of a citizen of the state or of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such regulations as will limit to the utmost its evils." See, also, Wyoming v. Cheyenne, 40 L. R. A. 710, 7 Wyo. 417, 52 P. 975; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. And it is uniformly held by the decisions of the Supreme Court of the United States that laws prohibiting or regulating the sale of intoxicating liquors invade no constitutional privilege guarantied to the citizen.

It cannot be predicated of the ordinance that all persons...