Norwood v. Capps
| Decision Date | 15 July 1965 |
| Docket Number | 1 Div. 269 |
| Citation | 278 Ala. 218,177 So.2d 324 |
| Parties | Jesse M. NORWOOD v. V. O. CAPPS, as Mayor, et al. |
| Court | Alabama Supreme Court |
Collins, Galloway & Murphy, Mobile, for appellant.
Mitchell G. Lattof, Mobile, for appellees.
Jesse M. Norwood, appellant, applied to the proper authority of the City of Prichard, Alabama, for a business license for the sale of malt or other brewed beverages for on-premise consumption. The city refused to issue the license on the sole ground that Norwood's place of business was less than 500 feet from another place of business licensed for the sale of such beverages for on-premise consumption.
Norwood filed in the Circuit Court of Mobile County, Alabama, a petition for mandamus to require the City of Prichard to issue said license to him. The petition alleged that petitioner had complied with the ordinance of the City of Prichard, Alabama, for such business license except that his place of business was less than 500 feet from another place of business licensed for the sale of such beverages for on-premise consumption. The petition was heard in open court and was denied. From the final judgment denying the relief sought, this appeal is prosecuted.
The ordinance involved is No. 704 of the City of Prichard, Alabama, and it is admitted that said ordinance was not passed as a zoning ordinance.
Ordinance No. 704 provides, in pertinent part, as follows:
* * *
'(a) The place or establishment for which a license is applied for must be more than five hundred (500) feet from any other place or establishment where malt or brewed beverages are sold for on premise consumption.'
It is insisted by appellant that if Ordinance No. 704 was passed under the police powers, it is unconstitutional and void for the simple reason that it is arbitrary, and the City of Prichard was without statutory authority to pass said ordinance.
Section 455, Title 37, Code of Alabama 1940, provides:
'Municipal corporations may, from time to time, adopt ordinances and resolutions not inconsistent with the laws of the state, to carry into effect or discharge the powers and duties conferred by this title, and provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of the inhabitants of the municipality, and enforce obedience to such ordinances by fine not exceeding one hundred dollars, and by imprisonment or hard labor not exceeding six months, one or both.'
Appellant argues that a provision in an ordinance that two beverage licenses for on-premise consumption within less than 500 feet of each other has no reasonable relationship to the safety, health, prosperity, morals, order, comfort, and convenience of the inhabitants of the municipality, and especially is this true where beverage licenses for off-premise consumption is allowed by the ordinance. We cannot agree.
In McQuillin, Municipal Corporations, 3rd Ed., Vol. 6, Sec. 24.172, p. 737, the following statement is made:
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...ordinance. § 487, however, has not been repealed and is still a statute of this state. Moreover, this court has held in Norwood v. Capps, 278 Ala. 218, 177 So.2d 324, that § 455, Title 37, authorizes a city to enact an ordinance requiring that a place licensed to sell beer for on-premises c......
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