Ex parte Byrd

• Decision Date: 31 May 1888
• Parties: EX PARTE BYRD.
• Court: Alabama Supreme Court

4 So. 397

84 Ala. 17

EX PARTE BYRD.

Supreme Court of Alabama

May 31, 1888

Appeal from city court of Mobile.

Application by one Byrd for a writ of habeas corpus. The writ was denied, and the petitioner appeals. Const. U.S. art. 14 § 1, prohibits any state from making or enforcing any law which shall abridge the privileges or immunities of citizens from depriving any person of life, liberty, or property without due process of law; and from denying to any person the equal protection of the laws. Const. Ala. art. 1, § 1 provides that all men are free and independent, and are entitled to life, liberty, etc. Section 7 provides for fairness in criminal prosecutions; and that no one shall be deprived of life, liberty, or property but by due process of law.

L H. Faith, for petitioner.

Braxton Bragg, for city of Mobile.

STONE C.J.

The petitioner was convicted by the mayor of Mobile for a violation of a municipal ordinance entitled an "ordinance to establish and regulate markets." Failing to pay the fine imposed, he was committed to prison, and thereupon he applied to the judge of the city court for a writ of habeas corpus on the ground of the invalidity of said ordinance. This application was denied, and he renews it here. The ordinance in question provides, among other things, for the establishment and regulation of markets at several points in the city of Mobile, and prohibits the sale of fresh meats at retail outside of these markets, except by tenants of the market stalls, who are permitted to hawk about the streets after "8 o'clock A. M. of the day." This ordinance was in effect on May 1, 1888. The petitioner was then, and had been for a number of years, a green grocer in Mobile, and as such was engaged in the business of selling fresh meats from his store, having regularly up to May 1, 1888, paid the municipal license tax imposed on that business, and having offered to continue the payment of this tax. It was admitted that the meats sold by petitioner were sound and wholesome, and that his store was fitted up for this business, and was and had always been clean and neat. Petitioner, on May 1, 1888, between 7 and 8 o'clock A. M., sold meat at his store in violation of this ordinance. For this he was convicted, and his conviction was assailed below, and its validity is attacked here, on the ground that said ordinance is void, because (1) it is violative of section 1, art. 14, of the constitution of the United States; (2) it is violative of sections 1 and 7 of article 1, and section 50 of article 4, of constitution of Alabama; and (3) that its enactment was not authorized by the charter of the city (or port) of Mobile. Upon the case, as thus presented, our conclusions are:

1. That it is clearly within the legislative power of the state, so far as any limitations resulting from the federal constitution are concerned, to authorize the passage by city councils of ordinances which prohibit the sale of certain commodities, either generally, or beyond specified limits, or within certain hours of the day. Indeed, the recent adjudications of the supreme court of the United States fully recognize the doctrine that the federal constitution cannot be successfully invoked in limitation of the state's absolute control, either directly or through its political instrumentalities, of its internal police affairs. Both the necessity for police regulation in a given instance, and the adaptation of a particular regulation to the specific end in view, are matters entirely of state cognizance and final determination. This ordinance, therefore, as applied to the agreed facts, is not violative of any...