Johnson v. Town of Fayette

• Decision Date: 15 November 1906
• Parties: JOHNSON v. TOWN OF FAYETTE.
• Court: Alabama Supreme Court

42 So. 621

148 Ala. 497

JOHNSON v. TOWN OF FAYETTE.

Supreme Court of Alabama

November 15, 1906

Appeal from Circuit Court, Fayette County; S. H. Sprott, Judge.

"To be officially reported."

Tom Johnson was convicted of violating an ordinance of the town of Fayette, and appeals. Affirmed.

Walter Nesmith and Walter McNeil, for appellant.

R. F Peters and J. H. Bankhead, Jr., for appellee.

WEAKLEY C.J.

The charter of the town of Fayette confers upon its governing board the power "to license and regulate the selling retailing or giving away of spirituous, vinous or malt liquors, bitters or beverages," but contains no power to prohibit such selling or retailing. The provision that the maximum amount of license to be imposed upon retail dealers in such liquors shall not exceed $1,000 is not an authorization to impose that or any other sum, regardless of whether the imposition is prohibitory, but a limitation in any event upon the amount to be fixed. While the governing board may license and regulate, it may not directly or indirectly prohibit, although it may impose such sum as it pleases, short of prohibition, up to $1,000. It cannot however, fix that sum, or any other, when the effect of the imposition is prohibitory. The board fixed the sum of $750 as the amount to be paid for a license to retail liquors during the year 1904, and the appellant declined to pay, upon the ground that the ordinance was not authorized by the charter, in that it was not a proper regulation, but was intended to operate and would operate as a prohibition of the traffic. Not taking out a license, but continuing to sell, he was convicted; the court below holding the ordinance valid. The inquiry, then, is whether the imposition complained of was a reasonable and proper regulation, or whether it was prohibitory and invalid.

Although certain agreed facts were submitted as bearing upon the question at issue, yet these were and are for the consideration of the court and not for the jury, since the court, and not the jury, must decide whether the ordinance is or is not valid. Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 So. 725, 60 Am. Rep. 130; Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642; Kneedler v. Norristown, 100 Pa. 368, 45 Am. Rep. 384; 1 Dillon on Munic. Corp. (4th Ed.) 327; 21 Am. & Eng. Ency. Law (2d Ed.) 988. Furthermore the ordinance having reference to a subject-matter within the corporate jurisdiction, the amount of the imposition not exceeding the authorized maximum, and no invalidity appearing upon the face of the ordinance, it will be presumed to be legal and valid until its invalidity is established by proper evidence. Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85; St. Louis v. Weber, 44 Mo. 550. In the case of Ex parte Sikes, 102 Ala. 173, 15 So. 522, 24 L. R. A. 774, in which we dealt with a similar legal inquiry, we said: "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...