Town of Elba v. Rhodes

• Decision Date: 09 February 1905
• Citation: 38 So. 807,142 Ala. 689
• Parties: TOWN OF ELBA v. RHODES.
• Court: Alabama Supreme Court

38 So. 807

142 Ala. 689

TOWN OF ELBA v. RHODES.

Supreme Court of Alabama

February 9, 1905

Appeal from Probate Court, Coffee County; F. M. Rushing, Judge.

Habeas corpus by John J. Rhodes to obtain his discharge from imprisonment pursuant to a conviction by the mayor of the town of Elba for violating a town ordinance with reference to the sale of liquor. From a decision of the probate judge discharging petitioner, the town appeals. Reversed.

Riley &amp Wilkerson, for appellant.

R. H Arrington, for appellee.

DOWDELL J.

The appellee was tried and convicted by the mayor of the town of Elba on an affidavit and warrant for the violation of a town ordinance. The proceedings before the mayor appear to have been regular, and while yet in the custody of the marshal under the judgment of conviction, and on the same day the judgment of conviction was rendered, and while the fine and costs remained unpaid, the petitioner sued out a writ of habeas corpus before the probate judge of the county, and was on the hearing by the judgment of said probate judge discharged from such custody, and from this judgment the town of Elba appeals. Code 1896, § 4314; Burr v. Foster, 132 Ala. 41, 31 So. 495.

The main question presented for consideration involves the constitutionality vel non of the two acts of the Legislature--one approved September 25, 1903 (Loc. Acts 1903 p. 316); the other one approved October 1, 1903 (Loc. Acts 1903, p. 443).

The title of the act of September 25, 1903, is "An act, to repeal an act entitled 'An act 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,' approved on the 18th day of February, A. D., 1899, in so far as said act relates to the county of Coffee and to prohibit the sale or giving away of said liquors in the county of Coffee after the first Monday in January, A. D. 1904." The act itself, under this title, is composed of five sections. The first section provides for the repeal of the former statute as to Coffee county, as set out in the title. The second section provides for prohibition in said county after the 1st of January, 1904. The third section provides a punishment for the violation of the provisions of the act. The fourth section makes it the duty of the judge of the circuit court to give the act specially in charge to the grand jury at each term of the court. The fifth section contains the general repealing clause.

The act being a local one, it was necessary to its validity that notice and proof of notice should be made as required by section 106 of the Constitution. This section provides as follows: "Sec. 106. No special, private or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, 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, or if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that said notice has been given shall be exhibited to each house of the Legislature, and said proof spread upon the journal. 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." The notice of this law which was exhibited with proof of the notice to the Senate and House, as shown on page 1918, printed volume of Senate journal 1903, and on page 1301, House printed journal, was in two forms, and as follows. Omitting the affidavit, we copy the two notices as they appear on the journal:

"Notice. To All Whom This may Concern, Greeting: Notice is hereby given that application will be made at the present session of the Legislature of the State of Alabama for the repeal of the law authorizing the establishment of dispensaries so far as the said law relates to the county of Coffee in said State, and to forbid the commissioners' court of the county of Coffee from erecting dispensaries for said county. [ Signed] A. Pelham, H. H. Blackmon."

"Notice. Notice is hereby given that at the next session of the Legislature in September, 1903, application will be made to repeal 'An Act to authorize municipal and other subdivisions of the State to buy and sell spirituous, vinous and malt liquors, and to further regulate and prohibit the sale of said liquors,' approved February 18th, 1899, in so far as the same applies to the county of Coffee. Said 'appeal' to take effect on the first Monday in January, 1904."

Under the principle laid down in the case of Wallace v. Board of Revenue (Ala.) 37 So. 323, where section 106 of the Constitution was construed, and where it was decided what was meant by the terms "substance of the proposed law," as they occur in that section, it requires no argument to show that in neither of the notices copied above is the substance of the proposed law as it passed the Legislature stated. Under the authority of the case above cited, the said act of September 25, 1903, must be declared void, as offensive to section 106 of the Constitution. We do not consider the other objection raised to this statute.

This brings us to the consideration of the question of the constitutionality of the act of October 1, 1903, and entitled "An act, to establish, maintain and regulate a dispensary in the town of Elba, Coffee county, Alabama, for the sale of spirituous, vinous and malt liquors, and to establish and perpetuate a board of commissioners for the management of said dispensary." When we compare this act with the Florence dispensary act, which was so ably and exhaustively treated in the case of Mitchell v State, 134 Ala. 392, 32 So. 687, we find, in reality and in principle, nothing to distinguish the two acts, to the end of withdrawing the act before us from an application of the doctrine laid down in Mitchell v. State. There is this difference in the two acts: In the act under consideration the commissioners were not in express terms constituted a corporation. We think that it can make no difference that the commissioners were not declared to be a body corporate. Whether they be constituted a corporation, or are mere private persons having the powers, or some of the powers and incidents, of a corporation, what difference can there be in principle when we come to apply the doctrine of the Mitchell Case, supra? It seems it would have made no difference in that case whether the commissioners were private persons or were constituted a corporation. Another difference between the two acts is that the Florence act, in...