Ex parte Cowert

• Decision Date: 27 April 1891
• Citation: 9 So. 225,92 Ala. 94
• Parties: EX PARTE COWERT.
• Court: Alabama Supreme Court

9 So. 225

92 Ala. 94

EX PARTE COWERT.

Supreme Court of Alabama

April 27, 1891

Application for habeas corpus.

The petitioner, Norris Cowert, filed his petition to the chancellor, praying for a writ of habeas corpus, which was overruled by him, and he now renews his application in this court.

Tompkins & Troy and Watts & Son, for petitioner.

Arrington & Graham, for respondent.

McCLELLAN J.

The petitioner is confined at hard labor on the streets of Union Springs, under a conviction and alternative sentence, for a violation of an ordinance of that town which is in the following language: "Section 1. It shall be unlawful for any firm, person, or corporation to sell spirituous, vinous or malt liquors in any quantities within the corporate limits of the town of Union Springs. Sec. 2. Any person violating any of the provisions of section one (1) of this ordinance must, upon conviction thereof, be punished by a fine of one hundred dollars, and, in default of payment of said fine, may be compelled to perform hard labor on the streets and alleys of said town for a term not exceeding fifty days, or may be imprisoned in the guard-house not exceeding fifty days. Sec 3. Any person making a single sale of such liquors shall be subject to the penalties herein prescribed." It is contended, in the first place, for the petitioner that this ordinance is invalid for that it exceeds the power conferred on the corporate authorities of Union Springs by the statute obtaining in the premises, and under which it was adopted. The statute in question, it is insisted, does not confer power on the town authorities to prohibit druggists to sell such liquors for medicinal purposes, and hence it is argued that the ordinance is void, in that its terms are sufficiently broad to embrace and interdict such sales by this class of persons. We need not decide whether the town, under this law, assuming the statute itself to be valid, had the right to prohibit sales by druggists. It may be admitted, for all the purposes of this case, that the corporate authorities were without power to prohibit, as they were clearly without power to require a license tax from druggists in respect of sales for the purposes and under the circumstances designated, and that the ordinance was invalid as to that class of persons and certain sales made by them. But that concession cannot affect this case. It does not appear that the petitioner was a druggist, and, in the absence of facts bringing him within that exception, it is to be assumed that he was not within it. And the law is well settled, not only that an ordinance may be good and bad in parts when the good provisions are separable from the bad, as in the case of statutes, (Lowndes Co. v. Hunter, 49 Ala. 509; Powell v. State, 69 Ala. 10; Ballentyne v. Wickersham, 75 Ala. 537; Horr & B. Mun. Ord. § 139; Wilcox v. Hemmings, 58 Wis. 144, 15 N.W. 435; Shelton v. Mayor of Mobile, 30 Ala. 540,) but "that the fact that an ordinance covers matters which the city has no power to control is no reason why it should not be enforced as to those which it may control." The fact that this ordinance embraces druggists, which the town of Union Springs may not have had power to prohibit, does not avoid it as to the petitioner, who was within the power delegated to the town. Horr & B. Mun. Ord. § 139; State v. Welch, 36 Conn. 215; Kettering v. Jacksonville, 50 Ill. 39; Ex parte Byrd, 84 Ala. 17, 4 South. Rep. 397.

The ordinance is further attacked on the ground that the statute intended to authorize, and relied on as authorizing, its adoption is itself unconstitutional and void for the reasons- First, that it was enacted after the lapse of 50 days to which sessions of the general assembly are limited; second, that it contains two subject-matters, of which only the one involved in the ordinance is expressed in its title; third, that the subject-matter involved here-the prohibition of the liquor traffic-is not expressed in the title of the act; and fourth, that the act undertakes to authorize a municipal corporation to pass a law inconsistent with the general laws of the state. We will consider these positions seriatim in the order stated.

1. It has more than once been determined by this court, and we have no disposition to depart from our rulings on that subject, that "days," within the limitation upon the sessions of the general assembly imposed by section 5, art. 4, of the constitution, mean working days, and of consequence that Sundays are to be excluded from the computation by which the end of the session is to be determined. Under this rule the act in question was passed within the constitutional limits of the session of 1890-91. Moog v. Randolph, 77 Ala. 597; Sayre v. Pollard, Id. 608.

2. It may also be considered stare decisis in this court that an act embracing two subject-matters, only one of which is expressed in the title, is good as to that subject, and invalid only as to the subject not so expressed. Ex parte Moore, 62 Ala. 471; Montgomery v. State, 88 Ala. 141, 7 South. Rep. 51.

3. The position of petitioner last considered, however, is supported by the record. His real contention in this connection is that prohibition of the sale of liquors is not expressed in the title of the act under consideration. That title is: "To amend section one of an act approved January 16th, 1879, and entitled 'An act to amend section twelve of an act to establish a new charter for the town of Union Springs,' approved February 1st, 1876." Now, section 12 of the act of 1876, as amended by the act of 1879, provides solely for the assessment, levy, and collection of taxes for the support of the municipality. Its delegation of power to the town is in this language: "Sec. 12. Be it further enacted that said town council shall have the power and authority annually, to assess, levy, and collect within its limits all revenues necessary for its government, as follows: On all real estate [the section proceeds] or personal property they shall have the right to levy a tax not to exceed one-half of one per cent. on the value of such property, as assessed for state taxation during the preceding year; on every cart, dray, wagon, or other vehicle used for the transportation of goods,...