87 Ala. 138 | Ala. | 1888
The City Council of Anniston, by an ordinance adopted March 8, 1889, prohibited the sale of intoxicants within the police jurisdiction of that city. The penalty prescribed for its violation is a fine of not less than one, nor exceeding one hundred dollars, or imprisonment or hard labor on the streets, for a term not exceeding six months. Petitioner,was convicted under this ordinance, and sentenced to thirty days hard labor on the streets. Contending that the sentence was illegal, petitioner sued out a writ of habeas corpus, returnable to the City Court of Anniston. That court adjudged the sentence to be lawful, and remanded the petitioner to the custody of the city authorities. Thereupon petitioner applied to this court for appellate habeas corpus, and for a review of the City Court’s ruling.
The city of Anniston appeared by counsel, and contests the discharge. It is admitted that the petition truly sets forth the facts, and it is both consented and desired that we consider and determine the merits of the application, without the issue of the preliminary writ.
The act with the title “To amend section 3 of an act entitled ‘An act to incorporate the town of Anniston, Calhoun county, Alabama,’ approved February 4, 1879,” was approved February 14, 1887. — Sess. Acts, pp. 307 to 332. Under this caption, or title, will be found a most elaborate statute, changing the name of the corporation to that of “The Mayor and City Council of Anniston.” It then proceeds to enumerate and confer all the powers deemed necessary to a full-rigged city government, with great fullness and particularity of detail. It not only specifies and confers all the powers which the entire act of February 4, 1879, had conferred, but it enumerates and grants many other powers necessary to a well appointed city government. It then expressly repeals sections 4, 5, 6, 7, and 8, of the act approved February 4, 1879. This act also must be read to be understood.
Our constitution, Article IY, section 2, dec]ares that “Each law shall contain but one subject, which shall be clearly expressed in the title.” The title of the present enactment is
The attempted enactment of February 14, 1887, being unconstitutional, can exert no influence whatever in the decision of this case. It not only failed to confer the power it assumed to coDfer, but it failed to repeal any part of the act of February 4, 1879. We must, then, decide this case as if the act of February 14, 1887, had never been attempted to be enacted.
The authority of the city government of the city of Anniston to prohibit the sale of intoxicants must, then, be determined by the act approved February 23, 1889. — Sess. Acts, 601 to 624. It is not contended that act is unconstitutional; and if such contention were made, we discover nothing in the statute to authorize us to question its constitutionality. Subdivision 10 of section 7 of that act — p. 612 — is the only provision which bears directly on this question. It confers the power to “license, tax and regulate grocers, merchants, retailers,” &c., but it confers no power to prohibit the sale of liquors. —Miller v. Jones, 80 Ala. 89.
It is contended, in opposition to relief, that subdivision 22 of section 7 supplies the requisite authority. That subsection does empower the city government to provide for the punishment “of any offense punishable by the laws of the State of Alabama.” But it empowers the municipal authorities to punish such case by fine or imprisonment. It confers no authority to impose labor on the streets as a punishment. So, if it be true, as contended, that Calhoun is a prohibition county, and that the sale of intoxicants in that county is, in consequence, an “offense punishable under the laws of Alabama,” that is no answer to the present application. The punishment inflicted in the present case is labor on the
We must not be understood, however, as deciding that, if the punishment had been either fine or imprisonment, the provision of the statute we are considering would have upheld the conviction. Calhoun is not absolutely a prohibition county. The statute authorizes a popular election, to determine whether intoxicating liquors shall be sold in the county, or their sale prohibited. — Act approved December 7, 1886 ■ — Sess. Acts, 671 — and act approved February 26, 1887. Sess. Acts, 700. We have decided that we will not take judicial cognizance that the county had voted for prohibition. Grider v. Tally, 77 Ala. 422. We need not decide, if the county did so vote, that this would constitute a violation of the prohibition an “offense punishable by the laws of the State of Alabama,” so that the city government, by an ordinance, could make it á punishable offense against the municipality. We decide nothing on this question.
The petitioner is illegally restrained of his liberty, and is entitled to his discharge.
The writs of habeas corpus and certiorari will be granted, unless the petitioner, on being certified of this opinion, is content to renew his application before a court of original jurisdiction.