Childers v. Shepherd

142 Ala. 385 | Ala. | 1904

HARALSON, J.

It is admitted by counsel for petitioner that “the sole question raised by the record is whether the act which authorized dispensaries in Walker county upon its ratification by a popular vote and the election held under its provisions, was constitutional.”

So far as what occurred in. the House of Representatives where the act originated is concerned, it cannot be successfully contended that there was any thing done or omitted, which subjected it to constitutional infirmity. The bill in question was introduced, accompanied by notice and proof of notice, such as is required by § 106 of the Constitution. The notice given consisted of the publication in full of the bill itself, together with its title, accompanied by the following affidavit: “The State of Alabama, Walker county. Before me, Sheriff Lacy, Register in Chancery in and for said county, this day personally came J. C. Norwood, known to me to be the editor and manager of the Mountain Eagle, a newspaper published in Jasper, in said county, who being by me duly sworn, deposes and says, that the attached notice to authorize all incorporated towns and cities in Walker county to establish and operate a dispensary or dispensaries in such incorporated towns or cities, was published once a week for four consecutive weeks in said newspaper before the making of this affidavit.”

The criticism of counsel that this affidavit does not state the name of the newspaper, and the name of the county in which said paper was published, is without merit. The affidavit is headed, “State of Alabama, Walker County,” and refers to the name of the paper in which it was published as the Mountáin Eagle, published at Jasper in said county, of Walker, and it further states, that the notice was published for four consecutive weeks in said newspaper, referred to in t|he affidavit, — The Mountain Eagle, published at Jasper in' said county. It thus appears, that the notice and proof of notice were sufficient; and, the bill, with such notice and proof, was duly passed by the House.

After tile passage of the bill in-the House, that body caused it to be sent to the Senate, with the message that “The House has originated and passed the following bills and ordered the same sent to the Senate without engrossment.” Among the number was the bill in question, its transmission being accompanied with the statement, “Said bill is accompanied by legal notice and proof and which notice and proof, appears in the House Journal as required by law.”

The original journal plainly shows that after proof by affidavit oí the notice of the proposed law was exhibited to the House, where the measure originated, it was also exliibited to the Senate, along with the bill when it was transmitted without engrossment to the latter body. The bill as originally introduced into the House, passed the Senate on the 26th of February, 1903. The journal also shows that the notice and proof thereof were spread at length on the journal of the Senate.

It is said that the entries of this notice and proof consisted of a newspaper clipping of the bill in question, pasted on the journal together with a typewritten copy of the said affidavit of the publisher of the Mountain Eagle, also pasted thereon. That this was such a spreading of the notice and proof upon the journal, as complies with the law, was held in the case of Dudley v. Fitzpatrick, at the present term, in MS.

It is again objected that this entry was made after the adjournment of the Legislature, by virtue of a general resolution of the two Houses authorizing and directing it to be done.

The original journal of the Senate of the 60th and last day of the session, at the end of all its proceedings, including a spreading- thereon of the notices and proofs of notices of local bills, including the one in question, shows a final adjournment of the Legislature, certified by its President, and attested by its Secretary, making it thus affirmatively appear, that the journal was completed before final adjournment. It is said, however, that the proof shows, that this, and some other notices and proofs of notice of local bills were, in fact, spread upon the journal after the Legislature adjourned. If it Avere competent to consider such proof. Avhich 'Ave do not decide, yet, there does appear on the journal of the Senate, a joint resolution of the Iavo- Houses, adopted October, 3rd, 1903, on the last day of the session, Avhich authorized the spreading upon the journal of each House, the proof by affidavit of the publication of all local bills passed by the Legislature at that session, Avhich was sufficient for the purpose.

The proposition that the act is in violation of section 22 of the Constitution in that it grants to towns and cities of Walker county, the exclusive privilege of selling intoxicating liquors, is Avholly wanting in merit. — Shepherd v. Dowling, 127 Ala. 1; Hubbard v. Lancaster, Ib. 157; Ard v. Ozark, Ib. 671.

It is again insisted that this act is unconstitutional, because by section 11 it authorizes the people of Walker county by their votes'to repeal all existing laws on the subject of intoxicating liquors, in conflict with the act.

Section 11 referred to, provides that this act shall not repeal the dispensary act passed at the same session of the Legislature for precinct No. 5 of Walker county, until January, 1904, and not then, unless this act in the meantime has been ratified by a majority of the qualified voters of said county, voting at the election, authorized by sections 19 and 20 of the act. These sections provide for an election by the qualified voters, to determine if said dispensary law for the certain county should be ratified. If ratified, the Legislature simply provides for the repeal of the other dispensary law for precinct number 5 of the county, the repeal to go into effect on the 1st of •7 anuary, 1904. There was no use in having two- dispensary laws in the county. If the last was ratified, it gave precinct number 5, all that was conferred on it by the special law-for that particular precinct-. The Legislature may pass a valid statute, to take effect on the happening of a future event, and the statute will not, on thai account, be held to be unconstitutional. — Davis v. State, in MS; Hand v. Stapleton, 135 Ala. 162.

A local Iuav may be passed to take effect, on the ratification of the same by the people of a county or district thereof. — Stanfield v. Board of Revenue, 89 Ala. 407; Edmondson v. Ledbetter, 114 Ala. 479.

It appears that the judgment in this case was rendered by a court presided over by a de facto judge, at a time Avhen the court could be legally held. There was no error-in denying the writ of mandamus.

Affirmed.

McClellan, C. J., Dowdell and Denson, J.J., concurring.