State ex rel. Woodruff v. Centanne

• Decision Date: 06 September 1956
• Docket Number: 1 Div. 664
• Citation: 265 Ala. 35,89 So.2d 570
• Parties: STATE ex rel. James E. WOODRUFF v. Bernice H. CENTANNE, Clerk, City of Prichard.
• Court: Alabama Supreme Court

Page 570

89 So.2d 570

265 Ala. 35

STATE ex rel. James E. WOODRUFF v. Bernice H. CENTANNE, Clerk, City of Prichard.

1 Div. 664.

Supreme Court of Alabama.

Sept. 6, 1956.

Collins, Galloway & Murphy, Mobile, for appellant.

Vernol R. Jansen, Mobile, for appellee.

PER CURIAM.

This is an appeal by petitioner (appellant) from a judgment denying him a mandamus to the clerk of the city of Prichard, Mobile County, for the issuance of a city license to sell package beer to be drunk off his premises.

The answer of the clerk to the petition invoked an ordinance of the city, which provides for a license charge of $250 for 'Beer Parlors, Beer Package Stores, or other places where beer or other malt beverages are sold or offered for sale'. But the ordinance also provides that 'no license shall be issued to any establishment which is nearer than five hundred (500) feet by the route usually traveled from any church or schoolhouse.' (There are other restrictions not here involved.) The answer alleges 'that the place of business operated by petitoner is less than five hundred (500) feet from a school, the facts being that the school yard is directly across the street from petitioner's place of business and is frequented by small children who purchase candy, soda water, cakes and other small purchases, that petitioner's place of business is regularly visited at recess and lunch hour by the pupils of the school'. Other details are stated which are immaterial to the issue made.

Appellant contends (1) that the ordinance violated section 89 of the Constitution of Alabama, in that it is inconsistent with the general laws of the State; (2) that his place of business is more than five hundred feet from the schoolhouse in question, though within five hundred feet from the school grounds connected with the schoolhouse.

The record shows that the trial 'court announced that the petition for the writ was denied for that the petitioner's business was located nearer than five hundred feet to the school'. The court also announced other rulings which are not involved on this appeal; and rendered a final judgment denying the petition,--from which petitioner appealed to this Court.

The matters controverted on appeal are that the ordinance is void under section 89 of the Constitution or, if not, that petitioner's place of business is not within five hundred feet of a 'schoolhouse'.

It is well settled that the fact that an ordinance enlarges upon the provisions of a statute by requiring more restrictions than contained in the statute creates no 'conflict,' unless the statute limits the requirements for all cases to its own prescriptions. Smith v. Town of Notasulga, 257 Ala. 382(2), 59 So.2d 674; City of Birmingham v. West, 236 Ala. 434, 183 So. 421; Mitchell v. City of Birmingham, 222 Ala. 389, 133 So. 13.

The provisions of the ordinance here in question, to which we have referred, do no more than add restrictions to the statutory provisions in that respect. The statute does not prescribe restrictions to be exclusive of all others. Therefore, the first contention of appellant cannot be sustained.

But the meaning of 'schoolhouse' as used in the ordinance needs further consideration. The evidence was without conflict that petitioner operated a grocery store at a location zoned for business, at a street corner, in the city of Prichard, which was located more than five hundred and eighty feet from a school building although the school grounds were separated from the property occupied by petitioner's store by only a sidewalk; and that on March 31, 1955 petitioner secured a license from the Alcoholic Beverage Control Board for the sale of package malt beverages for off premises consumption. Other formal matters and ordinance requirements are shown to have been complied with. As to them no question is here presented.

The real controversy argued by petitioner, who is the appellant, is that the trial court erred in holding that 'schoolhouse' as used in the ordinance, includes the 'school grounds.' We suppose this has reference to the play grounds connected with the school, as well as such other ground as is necessary for ingress and egress to the building itself. The evidence does not give any detail as to the size and uses of the 'school ground' involved. The burden being on appellant, we will presume that the 'school ground' means the area around the school building or in close proximity to it for use by the pupils for play and other forms of recreation such as is customary.

It is clear from the authorities that there has been no uniformity in the terms of ordinances of a somewhat similar import or as to their meaning. The cases are analyzed in 48 C.J., Intoxicating Liquors, § 136, pp. 245 and 246, and in 96 A.L.R. 778, et seq. State ex rel. First Presbyterian Church of Miami v. Fuller, 136 Fla. 788, 187 So. 148. Sometimes the terms 'church' and 'school' seem clearly to refer to the building and sometimes the ordinance or law itself makes the...