Rose v. Lampley

• Court: Alabama Supreme Court
• Writing for the Court: TYSON, J.
• Citation: Rose v. Lampley, 146 Ala. 445, 41 So. 521 (Ala. 1906)
• Decision Date: 05 June 1906
• Parties: ROSE, MAYOR, v. LAMPLEY, PROBATE JUDGE.

41 So. 521

146 Ala. 445

ROSE, MAYOR, v. LAMPLEY, PROBATE JUDGE.

Supreme Court of Alabama

June 5, 1906

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

"To be officially reported."

Mandamus proceeding by T. L. Rose, as mayor, against H. D. Lampley, as judge of probate. From a judgment denying the writ, plaintiff appeals. Affirmed.

Powell & Hamilton, for appellant.

A. E Gamble, J. D. Burnett, and Pearson & Richardson, for appellee.

TYSON J.

The object sought to be accomplished by this proceeding is to compel by mandamus the respondent, as judge of probate, to discharge a certain duty imposed upon that class of officers by the act of February 18, 1899, known as the "Dispensary Act," to wit, to call a meeting of the court of county commissioners of his court in order to furnish to the petitioner the names of three men having the qualifications of a dispenser, etc., in the town of Georgiana. Gen. Acts, 1898-99, p. 110. Of course, no such duty is upon the respondent if the act above referred to is not in force in that town. It is entirely clear from the act that it was the intention of the Legislature that dispensaries were not to be established under it when there is in force any law, local or general, which tends "to prohibit, retard, restrain or restrict the traffic in spirituous, vinous or malt liquors or intoxicating drinks of any kind."

It is in effect conceded by appellant's counsel that on the date of its approval there was in force in the town of Georgiana a local prohibition statute; that no intoxicating liquors of any kind could be legally sold in that town or the county in which it is situated, except in beat 12. Acts 1888-89, p. 512; Ex parte Pierce, 87 Ala. 110, 6 So. 392. But it is contended that this prohibitive act was repealed by the act of February 23, 1899. Loc. Acts 1898-99. pp. 1632-1633. This might be conceded, and yet it may be doubted whether the dispensary act would be in force in the town or county unless the third section of the supposed repealing act is valid and operative. That section undertakes to make the dispensary act operative in the town of Georgiana by mere reference to the "Moody bill." It reads as follows: "Be it enacted, that the provisions of the Moody bill be operative under this act at the expiration of sixty days." Independent of the omission of all reference to this subject in the title of the act, and its indefinitenes and uncertainty as to what is referred to, it is clearly violative of that clause of the Constitution which prohibits the provisions of any law to be extended by reference to its title only. Section 2, art. 4, Const. 1875 ; section 45, Const. 1901; Stewart v. Court of County Commissioners, 82 Ala. 209, 2 So. 720; Miller v. Berry, 101 Ala. 531, 14 So. 655; Rice v. Wescott, 108 Ala. 353, 18 So. 844. But it seems to be insisted that, had this section been omitted and if the act operated as a repeal of the prohibitive statute, the dispensary law would be in force in Georgiana anyway. It does not appear that it was the legislative intention that this law should be so elastic as to extend to all locations where local prohibition acts have been repealed since its passage. The Legislature certainly has never given it such a construction. To the contrary, the legislative construction has been that it does not. This is clearly manifested, not only by the section above quoted, but also by the passage of a number of local statutes establishing dispensaries in theretofore prohibited districts. Indeed, the writ of quo warranto could never have been properly awarded in the case of This Appellant et al. v. State ex rel. Sims, 40 So. 951, if this contention be sound. For clearly, if the general dispensary act was in force in Georgiana, it was of no moment whether the local act authorizing the operation of the dispensary was constitutional or unconstitutional.

We do not wish, however, to be understood by the concessions here made, solely...