Steadman v. Kelly

• Decision Date: 19 February 1948
• Docket Number: 3 Div. 493.
• Citation: 34 So.2d 152,250 Ala. 246
• Parties: STEADMAN v. KELLY et al.
• Court: Alabama Supreme Court

34 So.2d 152

250 Ala. 246

STEADMAN v. KELLY et al.

3 Div. 493.

Supreme Court of Alabama

February 19, 1948

Boutwell, Pointer & Hawkins, of Birmingham, for appellant.

A A. Carmichael, Atty. Gen., and Hugh F. Culverhouse, Asst Atty. Gen., for appellees.

STAKELY Justice.

Lawrence G. Steadman (appellant), who is a resident citizen of Madison County, Alabama, filed a petition for writ of mandamus against Lamar Kelly, Melvin L. Dawkins and John P. Faulk Jr., members of the Alabama Alcoholic Beverage Control Board, to require them to issue him a license to sell beer at his place of business which is located in Madison County, Alabama, but outside the limits of the police jurisdiction of any town, city or municipality. The petition alleges that the Alabama Alcoholic Board has unlawfully and without authority of law refused to issue to petitioner a license for the year 1947 to sell beer in Madison County, Alabama.

All of the allegations of the petition are admitted by the respondents except tlat they deny that they have unlawfully refused to issue to the petitioner the license for which he applied. The respondents state in their answer that their refusal to issue the license was solely by virtue of local act No. 472 passed by the Regular Session of the Legislature of 1947. Loc.Acts. 1947, p. 331. The title of the act is as follows: 'To regulate the sale of alcoholic beverages in Madison County.' The pertinent provision of the act is found in § 1, as follows: 'It is unlawful for any person, firm, corporation, or association to sell or offer to sell any spirituous or vinous liquor in Madison County except at Alabama Alcoholic Beverage Control Board liquor stores, or to sell or offer to sell within such county any malt or brewed beverages except within the police jurisdiction of an incorporated municipality thereof.'

The court denied the petition for mandamus and hence this appeal.

It is the serious insistence of the appellant that the foregoing local act of the legislature is void and of no effect because it violates Article IV, § 45 of the Constitution of Alabama and because it violates Article IV, § 105 of the Constitution of Alabama. Obviously if the local act is invalid, then the rights of petitioner are governed by the general law as found in Chapter 1, Title 29, Code of 1940.

Section 45 of Article IV of the Constitution of Alabama requires that 'each law shall contain but one subject, which shall be clearly expressed in its title,' with certain exceptions not here applicable. The purposes of this section have been stated so often as not to require restatement here. State v. Nelson, 210 Ala. 663, 98 So. 715; State v. McCary, 128 Ala. 139, 30 So. 641. It will be noted that the title of the act is to regulate the sale of alcoholic beverages in Madison County. It is the insistence of appellant that section one of the act goes beyond mere regulation and is a prohibition of the sale of liquor or malt beverages. It is claimed that there is a real distinction between regulation and prohibition and that regulation can in no way be considered as including prohibition. Accordingly it is argued that the body of the bill includes matter not germane to the title.

In the case of Ajax v. Gregory, 177 Wash. 465, 32 P.2d 560, 563, the court said, 'To prohibit the liquor traffic implies the putting a stop to its sale as a beverage, to end it fully, completely, and indefinitely. To regulate implies that the sale of intoxicating liquor shall go on within the bounds of certain prescribed rules, restrictions, and limitations.' In the foregoing case the court held that the state had power to provide for sale of intoxicating liquors solely through state stores.

In the case of Churchill v. Common Council of City of Detroit, 153 Mich. 93, 94, 116 N.W. 558, the court held that the words 'to regulate' in the Detroit City Charter, authorizing the common council to regulate the selling of intoxicating liquors, does not give the power to prohibit the sale of liquors, but on the contrary authorizes the municipality to confine the exercise of such business to a certain locality.

In the case of City of Tacoma v. Keisel, 68 Wash. 685, 124 P. 137, 139, 40 L.R.A.,N.S., 757, the court held that under Rem. and Bal. Code § 7507, providing that cities of the first class shall have power to regulate the selling or giving away of intoxicants, a regulation which works a partial prohibition is valid, the word regulate necessarily implying some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. We quote from the court's decision in this case, as follows: '* * * It seems clear to us that the mere fact that the ordinance in some measure prohibits the sale and giving away of intoxicating liquors in licensed saloons in the city does not render the ordinance invalid because of lack of power to enact it; since a limited degree of prohibition is apparently one of the methods of regulating the liquor traffic recognized by law. * * *'

In the case of Territory v. Miguel, 18 Haw. 402, there was involved 'An Act to regulate the sale of spirituous liquors repealing Act 67 of the Session Laws of 1905'. The act was held not violative of Organic Act, § 45, 48 U.S.C.A. § 578, requiring that each law shall embrace but one subject which shall be expressed in its title in that it prohibited as well as regulated sales, since regulating sales implied the restrictions and limitation of the number and volume and times and places of selling and required the prohibition of sales not made in conformity with regulation.

In the case of State ex rel. Thornbury v. Gregory, 191 Wash. 70, 70 P.2d 788, the court held that the power to regulate a business does not necessarily imply the power to prohibit or suppress such business, but it does include authority to confine the business to certain hours of the day, to certain localities or buildings and to prescribe rules for its prosecution within those hours, localities and buildings.

In the case of General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799, the court held that under a constitutional amendment authorizing the legislature to regulate and restrict outdoor davertising the legislature may prohibit advertising in places or districts but not generally throughout the commonwealth.

It is worth nothing that in the case of United States v. Hill, 248 U.S. 420, 425, 39 S.Ct. 143, 145, 63 L.Ed. 337, the Supreme Court of the United States had the following to say.

'The power of Congress, it is ture, is to regulate commerce, which is ordinarily accomplished by prescribing rules for its conduct. That regulation may take the character of prohibition, in proper cases, is well establishsd by the decisions of this court. * * *.'

This court has had occasion to comment on the meaning of the words regulate and prohibit. In the case of Ivey v. Railway Fuel Co., 218 Ala. 407, 118 So. 583, 585, the court speaking through Mr. Justice Bouldin said: 'Regulative statutes, however, usually forbid or prohibit certain things as part of the regulations. In the nature of it, regulation defines what shall and shall not be done in certain events.'

In the case of Ex parte Byrd, 84 Ala. 17, 4 So. 397, 398, 5 Am.St.Rep. 328, Mr. Chief Justice Stone said: '* * * While the power 'to regulate' does not authorize prohibition in a general sense, 'for the very essence of regulation is the existence of something to be regulated,' yet the weight of authority is to the effect that this power confers the authority to confine the business referred to to certain hours of the day, to certain localities or buildings in a city, and to the manner of its prosecution within those hours, localities, and buildings. * * *' See also State v. Skeggs, 154 Ala. 249, 46 So. 268.

The statute under consideration does not prohibit the sale of spirituous or vinous liquors throughout Madison County but merely provides that such beverages cannot be sold except at the Alabama Beverage Control Board Local Stores and except that any malt or brewed beverages cannot be sold in the county except within the police jurisdiction of an incorporated municipality thereof. In other words, the prohibition against the sale of the foregoing beverages is not such as to end it fully, completely and indefinitely within Madison County, but confines the sale to the local stores of the Alabama Beverage Control Board and to certain localities within the county. The act recognizes the right to sell in Madison County but subjects the sale to certain regulations as to locality.

In passing on the contentions of the appellant we should consider the Alabama authorities relied on by the appellant. In the case of Yahn v. Merritt, Judge, 117 Ala. 485, 23 So. 71, the title of the act dealt only with the regulation of the sale of liquors while the body of the act not only prohibited the sale of liquors, except in incorporated towns, but also the giving away or otherwise disposing of such liquors. In that case the title read as follows: 'An Act To provide for and regulate the sale of liquors and other intoxicating drinks in Geneva County, Alabama.' Acts 1896-97, p. 599.

The pertinent provisions of the act read as follows: 'From and after the passage of this act it shall be unlawful for any person or persons to sell, barter, exchange, give away, deliver or otherwise dispose of any spirituous, vinous or malt liquors or intoxicating bitters, or any other intoxicating drink in Geneva County, except in incorporated towns that are under police regulations which are of force and effect.' Section 1.

In that case the court held that the body of the act was inconsistent with its title as the act not only regulated the sale of...