Ex parte City of Anniston

• Decision Date: 01 May 1890
• Citation: 7 So. 779,90 Ala. 516
• Parties: EX PARTE MAYOR, ETC., OF ANNISTON.
• Court: Alabama Supreme Court

7 So. 779

90 Ala. 516

EX PARTE MAYOR, ETC., OF ANNISTON.

Supreme Court of Alabama

May 1, 1890

Certiorari.

An affidavit was made out before the recorder of the city of Anniston, charging Mrs. Untreiner with a violation of an ordinance passed by the mayor and city council of Anniston on June 14, 1889, "to punish the retailing or selling of vinous, spiritous, or malt liquors within the corporate limits of the city of Anniston." Upon a warrant issued upon said affidavit Mrs. Untreiner was arrested and placed in prison. She thereupon made her application to the judge of probate of Calhoun county, praying for a writ of habeas corpus. Upon the hearing of the application the probate judge adjudged the said ordinance null and void, and thereupon ordered the discharge of the petitioner. The mayor and council of Anniston now petition this court to grant a writ of certiorari, or other appropriate writ, to the judge of probate.

Agee & Micon, for petitioners.

Gordon McDonald, for respondent.

CLOPTON J.

The ordinance, for the violation of which Mrs. Untreiner was arrested under a warrant issued by the recorder of the city of Anniston was passed June 14, 1889, and reads as follows "Be it ordained by the mayor and city council of Anniston that any person who, without license as a retailer sells spirituous, vinous, or malt liquors within the police jurisdiction of the city of Anniston in any quantity less than a quart, or in any quantity, if the same, or any portion thereof, is drunk on or about the premises, must, on conviction, be fined one hundred dollars, or be imprisoned not less than one nor more than six months." It is contended that the purpose of the ordinance is to punish the offense of retailing without a license, and power to pass it is claimed under a provision of the seventh section of the act of February 23, 1889, incorporating the city of Anniston, which confers on the mayor and city council general power "to provide for the punishment, by fine or imprisonment, the commission of any offense punishable by the laws of the state of Alabama." Another provision of the same section confers special power "to license, tax, and regulate auctioneers, grocers, merchants, retailers, *** and all other privileges." Acts 1888-89, p. 601. The general power is limited and qualified by the special provision specifying the particular purposes for which an ordinance may be passed. In 1 Dill. Mun. Corp. § 316, the...