Sheppard v. Dowling

• Decision Date: 10 May 1900
• Citation: 127 Ala. 1,28 So. 791
• Parties: SHEPPARD v. DOWLING, JUDGE.
• Court: Alabama Supreme Court

28 So. 791

127 Ala. 1

SHEPPARD v. DOWLING, JUDGE.

Supreme Court of Alabama

May 10, 1900

Appeal from circuit court, Dale county; A. A. Evans, Judge.

Petition by W. M. Sheppard for mandamus to G. P. Dowling, probate judge of Dale county, to compel the issuance of a license for the sale of liquor. From an order denying the writ petitioner appeals. Affirmed.

On the 29th day of November, 1899, the appellant, W. M. Sheppard filed in the office of the probate judge of Dale county an application, in all respects as directed by law, for a license to sell liquors for the year 1900, at Pinckard, and this petition or recommendation remained on file in that office until January 1, 1900, when appellant went before the appellee, as probate judge of Dale county, and tendered to him the requisite amount of money for license money, fees etc., and offered proof of the genuineness of the signatures on the recommendation, and that they were a majority of the legal electors, and a majority of the bona fide householders who had resided within the corporate limits of Pinckard for 12 months next preceding the application. The appellee, as such probate judge, refused to enter upon a hearing of or to determine the application, and rendered an order refusing to hear and determine the application, and based his refusal upon the passage and provisions of the dispensary law of Alabama, which he stated in his order that he held to be the law governing the sale of whisky in Pinckard, and to repeal the local law for Pinckard, regulating the sale of liquor there. Upon this refusal appellant filed his petition for a mandamus addressed to Hon. A. A. Evans, judge of the Third judicial circuit of Alabama, to require Judge Dowling to hear and determine and petition for the license. Judge Dowling waived the rule nisi, answered, and consented that Judge Evans act finally upon the petition for mandamus. Judge Evans denied the petition, and refused to grant the writ of mandamus as prayed for. From this judgment refusing to grant the writ the petitioner prosecutes this appeal. The mandamus is sought upon the grounds that the local law for Pinckard, passed at the session for 1898-99, is the law of force in Pinckard, and that the dispensary law, if valid, does not apply to Pinckard because of the provisions of its thirteenth section, and also on the ground that the dispensary law is unconstitutional.

Sallie & Kirkland, for appellant.

A. T. Borders, for appellee.

McCLELLAN C.J.

On this appeal are presented for consideration the constitutionality and the construction and operation of the act of February 18, 1899 (Acts 1898-99, p. 108), commonly known as the "Dispensary Law." The title of the act is this: "To authorize municipal and other subdivisions of the state to buy and sell spirituous, vinous and malt liquors, and to further regulate or prohibit the sale of such liquors." In the body of the act provision is made for the carrying on of the business of selling such liquors by towns, cities, and counties, and the sale of liquors in the territory to which the act applies, by others than the towns, cities, and counties, is prohibited under severe penalties, and the act prescribes minute regulations of the sale by such municipal bodies. It is insisted for appellant that the title of the act embraces, and that its body provides, for two subjects-matter, viz. the sale of liquors by municipalities, and the prohibition of its sale, in violation of section 2 of article 4 of the constitution. This is hypercriticism. The act has but one subject; its purpose is single. It is simply to provide for the exclusive sale of liquors by municipalities. To do this it was necessary to empower them to engage in the business, and to prohibit others to engage in it. That is all that is expressed in its title, and that is clearly expressed therein, and that is all is provided for in the body of the act. What else is therein prescribed and provided is mere detail, necessary to the carrying on of the business the municipalities are authorized to engage in. Of course, a town empowered to establish and conduct a dispensary of liquors must needs have a dispenser, and the provisions of the act for the appointment and prescribing the duties of dispensers are obviously cognate to, and complementary of, the subject expressed in the title; necessary to carrying out the purpose of the act, and hence covered by the expression of that purpose in the title. And we know of no constitutional guaranty or fundamental principle of government, or chart of liberty or inalienable right, that would be violated by the selection of a dispenser for a town who chanced to live beyond its corporate limits. Not only so, but as the dispensary, though carried on by a town, is for the country or county as well as the town, it would seem to be entirely appropriate for the county authorities to have the voice which is given them by the act in the selection of dispensers.

Much is said in argument for appellant to the general effect that though the establishment of dispensaries for the exclusive sale of liquors, as proposed by this act, may not be violative of the letter or spirit of any ordinance of the state or federal constitutions, yet that those organic governmental charters "do not contain all the constitutional liberties and guaranties of the people," and that "we have a vast reserve of such liberty, not found in any written constitution, and which, by the very nature of the case, could not be put into any written constitution," and that this act trenches upon this reserve of unexpounded and unformulated rights, which the legislature, though not inhibited therefrom by the organic law, is without power to interfere with. It will suffice, in reply to all this, to say that this court is thoroughly committed to the doctrine that the construction of the state, and the constitution of the United States so far as it has any application, are not the sources of the legislative power residing in the general assembly of Alabama, nor in any sense grants of power to the legislature, but only limitations upon that power, and that, apart from the limitations imposed by those fundamental charts of government, the power of the legislature has no bounds, and is as plenary as that of the British parliament. All which the general assembly is not forbidden to do by the organic law, state or federal, it has full competency to do; and, if there be any plausible objection to the soundness of this doctrine in any connection, it is surely unassailable in its application to the power of the legislature to regulate the liquor traffic.

Another objection to this act stated by counsel for appellant, but not urged in argument, is that, as a whole, it is violative of the interstate commerce clause of the constitution of the United States. As counsel do not deem this position worthy of discussion, we content ourselves with saying that it is without merit.

But counsel do insist in argument that the saving clause in section 10 of the act with respect to brewers and distillers is violative of the constitution of the United States. That section, so far as necessary to be here set out, is as follows: "No spirituous, vinous or malt liquors or intoxicating drinks shall be sold in any county of this state in which a dispensary is authorized to be located, except as herein provided. But nothing in this act shall be so construed as to prevent any person who manufactures spirituous, vinous or malt liquors in a brewery or distillery from selling the same by wholesale, in sealed packages, to dispensers, or to liquor dealers, who may be otherwise authorized to sell such liquors." It is contended that the effect of these provisions is to limit the right to sell liquors to dispensers and other authorized dealers to brewers and distillers, and to prohibit such sales by other persons wherever they may reside and carry on business, whether within the dispensary district, or without the district in the state, or beyond the state, and that in thus interdicting sales by persons and dealers of other states, other than brewers and distillers, to dispensers and authorized dealers in this state, this section of the act impinges upon the exclusive power of congress to regulate interstate commerce. The position is rested upon a wholly unwarranted construction of the section in question. The section has reference solely to counties in the state in which dispensaries are authorized to be located. Its general purpose and effect is to prohibit the sale of liquors in such counties by all persons except dispensers, and the proviso authorizes sales in such counties by brewers and distillers to dispensers, whether of the county or not, and to persons other than dispensers who are authorized dealers in liquors. Neither the prohibition of the section nor the proviso has any reference to sales by distillers or...