State v. Williams

• Decision Date: 18 May 1905
• Citation: 143 Ala. 501,39 So. 276
• Parties: STATE EX REL. VAN DEUSEN v. WILLIAMS, PROBATE JUDGE.
• Court: Alabama Supreme Court

39 So. 276

143 Ala. 501

STATE EX REL. VAN DEUSEN v. WILLIAMS, PROBATE JUDGE.

Supreme Court of Alabama

May 18, 1905

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Mandamus by the state, on the relation of John M. Van Deusen, against Price Williams, Jr., judge of probate of Mobile county. From a judgment denying the writ, relator appeals. Affirmed.

McClellan C.J., and Haralson and Denson, JJ., dissenting in part.

McAlpine & Robinson, for appellant.

John R Thompkins, for appellee.

DENSON J.

This is a proceeding by mandamus instituted by John M. Van Deusen against the judge of probate of Mobile county by which it is sought to compel the issuance to the relator of a license to retail beer and other malt liquors at Mt. Vernon, in Mt Vernon precinct, in Mobile county. It is conceded that the relator complied with the statutory provisions leading up to the granting of the license, but the judge of probate refused to issue the license upon the ground that by an act of the Legislature approved September 26, 1903, the sale of spirituous, vinous, and malt liquors at Mt. Vernon was prohibited.

The relator alleges that the act of September 26, 1903 (Loc. Acts 1903, p. 352), was enacted in violation of section 106 of the Constitution, and is therefore void. The title of the act is as follows, namely: "An act to prevent the sale of spirituous, vinous or malt liquors within five miles of the Alabama Insane Hospitals situated at Tuscaloosa and Mt Vernon, except in incorporated cities and towns, and to provide punishment for violations of this act." Section 1 of the act prohibits the sale of spirituous, vinous, or malt liquors within five miles of the Alabama Insane Hospitals situated at Tuscaloosa and Mt. Vernon, except in cities now incorporated or hereafter to be incorporated under the laws of Alabama. Section 2 makes the violation of the act a misdemeanor, and fixes the punishment at a fine of not less than $50 nor more than $500, or hard labor for the county for not more than six months, one or both. Section 3 provides that the act shall take effect from and after the 1st day of January, 1904. The notice that was given of the intention to apply for the enactment of the law, as found in the House and Senate Journals, is as follows, to wit: "Notice is hereby given that application will be made to the Legislature when it meets in September to pass a law preventing the sale of spirituous, vinous, or malt liquors except in incorporated cities and towns within five miles of the Insane Hospitals situated at Tuscaloosa and Mt. Vernon." See House Journal, p. 1279; Senate Journal, p. 1915. The notice was published in Tuscaloosa and in Mobile. Section 106 of the Constitution prohibits the passage by the Legislature of any private or local law unless notice of the intention to apply therefor shall have been published in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law, and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, and proof by affidavit that said notice has been given shall be exhibited in each house of the Legislature, and said proof spread upon the journal. The section further provides that the courts shall pronounce void every special, private, or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section. By this section the question whether due notice was given is made a matter for judicial revision; and it is the imperative duty of the courts to pronounce void special or local laws that are not passed in accordance with the requirements of the section.

It is urged by the appellant that three of the provisions of the act under consideration were not comprehended in the published notice, viz. (1) The provision which imposes punishment for the violation of the law; (2) the provision that the law should not apply to cities and towns incorporated after the passage of the act; and (3) the provision that the law should not take effect until January 1, 1904. Appellant's counsel state in their brief that their chief contention is that the notice given was fatally defective, in that it utterly failed to refer to the character of the penalty to be imposed for violation of the prohibitory statute, or, indeed, to state that there would be any penalty whatever embodied in the law. In the case of Wallace v.

Board of Revenue of Jefferson county, 140 Ala., on page 502, 37 South., on page 323, the court, speaking through Mr. Justice Haralson, with reference to section 106 of...