44 So. 78 | Ala. | 1907
This is a proceeding by mandamus to compel the respondent, as clerk of the city of Bessemer, to issue to the petitioner a license to' retail vinous, spirituous, and malt liquors at No. 113 Twenty-First street, in said city. There are 28 grounds set down in the assignment of errors; but we think the discussion of only a few of these will bring us to an intelligent conclusion with respect to the vital issues in the cause, without the necessity of pursuing in detail its meanderings through the city court.
The charter of the city, approved December 13, 1900 (Acts 1900-01, p. 444), confers on the board of mayor and aldermen the power to license, regulate, and restrain the sale, giving away, or otherwise disposing of vinous, spirituous, malt, and other intoxicating liquors, bitters, and beverages within certain designated limits embraced in the territory of the city. The charter further provides that the board shall have the power to revoke and cancel any license issued for the sale of such liquors, when in the opinion of the board the public safety, peace, good order, or decency may require. It is settled law that, under a charter of this kind, a city may license, regulate or prohibit the sale of intoxicating liquors of all descriptions—Smith v. Town of Warrior, 99 Ala. 481, 12 South. 418; Ex parte Sikes, 102 Ala. 173, 15 South. 522, 24 L. R. A. 774. The board of mayor and aldermen passed an ordinance fixing the amount to be paid for the privilege of retailing vinous, spirituous, and malt liquors at |600. By section 5 of the same ordinance it is provided that “before any license (liquor
This section of the ordinance is not mentioned in tin-application for mandamus, but has been brought for
It cannot be predicated of the ordinance that all persons Avho may desire a license may not come, or do not come, under its provisions. It does not purport on its face to apply to only a class of individuals. Indeed, by its terms, all Avho may desire a license shall, before obtaining it, comply with the terms of the ordinance. But that it retains in the committee and the board a discretion in respect to the granting of the license cannot be gainsaid. It must be conceded that by the charter the Legislature conferred on the city the power to enact ordinances regulating the subject of intoxicating liquors, the granting of license to deal in them, etc., to the same extent as the Legislature could have done by a direct and comprehensive statute*. And we think a reasonable
To make the point clear, it may be well to state the substance of the ordinance that was in judgment in that case. It provided that “no license as such liquor dealer shall be issued by the collector of licenses, unless the person desiring the same shall have obtained the written consent of a majority of the board of police commissioners of the city and county of San Francisco to carry on or conduct said business; but, in case of refusal of such consent, upon application, said board of poliee com
A case which has denied the power of a municipality to refuse a liquor license to one who has. complied with the procedure and conditions prescribed by law, and which is relied on by the petitioner (appellee), is Ex parte Theisen, 30 Fla. 529, 11 South. 901, 32 Am. St. Rep. 36. That case is easily distinguishable from Crowley r. Christensen and its congeners. The Florida court
In respect to the ordinance in judgment, while the discretion is reposed in a committee in the first instance, yet the finding of the committee is- not final. The rights of the applicant for license are safeguarded against the exercise of discretion arbitrarily by the right of appeal to the next regular meeting of the city council; the final result being that applications are passed on by the board of mayor and aldermen, the governing board of the city.
The petitioner, on the trial, attempted to show that the board in refusing his application for license, was actuated by race prejudice; but we are of the opinion, and so hold, that the effort was a failure. Evidence on this point having been admitted, it ivas competent for the respondent to rebut it with proof that the petitioner, during the last year and while holding a license to retail liquors in the city, was tried and convicted before the mayor for selling liquors on Sunday. But this should have been done by producing the original papers or the mayor’s docket. — Thompson’s Case, 100 Ala. 70, 14 South. 878. It follows that the petitioner failed to show a clear legal right to have the clerk issue him a license, and the city court erred in rendering judgment for the petitioner, and should have rendered judgment for the respondent.
Reversed and rendered.