Ex parte Sikes

• Decision Date: 03 May 1894
• Citation: 102 Ala. 173,15 So. 522
• Parties: EX PARTE SIKES.
• Court: Alabama Supreme Court

15 So. 522

102 Ala. 173

EX PARTE SIKES.

Supreme Court of Alabama

May 3, 1894

Application by J. D. Sikes for a writ of habeas corpus. Denied.

Hubbard Wilkerson & Hubbard and Worthy & Foster, for petitioner.

Wm. L Parks, for respondent.

COLEMAN J.

By an ordinance of the city of Troy, dealers in spirituous liquors were required to pay $2,000 for a license. For a violation of this ordinance, the defendant was arrested and fined, and refusing to pay the fine, imprisoned. He sued out a writ of habeas corpus before the probate judge, who, upon the hearing of the case, refused to discharge the petitioner, and remanded him to the custody of the marshal. From this judgment the petitioner prosecutes his application to this court. All the facts are agreed upon, and the only question is as to the legality of the ordinance. The prisoner contends that it is prohibitory in its character and effect, and that such an ordinance is not authorized by the municipal charter of the city of Troy. The act of the legislature of 1890-91 (page 724) declares that "the mayor and councilmen shall have power and authority *** to license and regulate the retailing and the wholesale of liquors within the corporate limits, and to provide for the annulling and revoking such license for good cause being shown; *** to license and regulate commission merchants, dry goods and grocery merchants keepers of hotels and eating houses; *** to prohibit the sale of liquors on any election day; *** to restrain and prohibit gambling; to prohibit all unlawful assemblies; to prohibit violations of the Sabbath; to prevent stock from running at large; *** to prohibit all breaches of the peace; *** and to fix the price or tax on all licenses." We think it very clear that the authority "to license and regulate" a business does not include the authority to prohibit it absolutely. We have so held many times. Ex parte Burnett, 30 Ala. 461; Miller v. Jones, 80 Ala. 89; Ex parte Cowert, 92 Ala. 94, 9 So. 255; Ex parte Mayor of Anniston, 90 Ala. 516, 7 So. 779. Independent of the judicial construction given to a statute which merely confers the power to license and regulate a business, a reading of the act in question clearly demonstrates that the intention of the legislature was to authorize the mayor and councilmen to "license and regulate," and not to "restrain and prohibit," the sale of spirituous liquors. Whenever it was intended to confer such power, the words used are "restrain," "prohibit;" but these and similar words are not used when the power in regard to the sale of liquors was conferred. We are of opinion the legislature has the constitutional right to prohibit or to authorize any community or municipality absolutely to prohibit the sale of spirituous liquors. Intendant of Marion v. Chandler, 6 Ala. 899; Ex parte Burnett, supra; Ex parte Cowert, supra; Harris v. Intendant of Livingston, 28 Ala. 579. Having the power to prohibit, the legislature undoubtedly could fix the price of a license to sell liquor at any sum, and, had it seen proper to exercise the right, could have conferred on the mayor and councilmen of Troy, by express provision, the power either to prohibit entirely, or fix the price of the license at $2,000. It has, however, declared that the "mayor and councilmen shall have the power to license and regulate the retailing and the wholesale of liquors within the corporate limits," and "to fix the price or tax on all licenses." The only limitation on the power and discretion of the mayor and councilmen in fixing the "price of the license" is contained in the words "license and regulate the sale," and this limitation is that the price fixed shall not be prohibitory. What is the test by which it shall be determined whether a "price for a license" is or is not prohibitory? Upon what principle is it to be held that a price of $200 is not prohibitory, and $2,000 is prohibitory? What rules and facts must guide the mayor and councilmen in fixing the price of a license, so that the ordinance will be an exercise of power within their granted authority "to fix the price," and not transgress the boundary fixed by the term "to license and regulate," so that it shall not be prohibitory? No one unvarying price will suit for all places and all circumstances. It seems to us the populousness of the municipality, the profitableness of the business, the character of the business proposed to be licensed, and its effects upon the community, the additional expense necessarily entailed by a police supervision of the business, and perhaps other matters might be mentioned, are all proper subjects of inquiry in arriving at a legal and just conclusion in fixing a price which will not be prohibitory. In the case of Ex parte Burnett the town...