95 Ala. 19 | Ala. | 1891
The charter of the town of Bussell-ville invests the mayor and aldermen of that municipality
By an act approved February 8, 1881, the sale, gift, or other disposition of spirituous and malt liquors and intoxicating bitters, was prohibited in beat two, known as Russell-ville beat, and embracing the town of Russellville, in Franklin county; and this statute is still of force, and provides heavy penalties for its violation. — Acts 1880-81, p. 392.
The offense defined and denounced by this statute is one which- is “known and classed in the laws of the State of Alabama” as an offense “against public morality and decency.” — Code, Part 5, Title 2, Chap. 7, Art. XIII, §§4036 et seq.
The board of mayor and aldermen of Russellville, after the charter above referred to went into effect we assume, adopted the following ordinance : "Be it further ordained, that any person who shall give, sell, barter, or otherwise dispose of spirituous, vinous or malt liquors, or drugs or bitters the basis of which is intoxicating liquor, shall be fined not less than two, nor more than twenty-five dollars.”
Under this ordinance, one Arthur Hurley was convicted of selling vinous, spirituous or malt liquors in said town, fined within the limitation of the ordinance quoted above, and failing to pay the fine and cost, was in the custody of the marshal of the town pending sentence to imprisonment or hard labor, when he applied to the probate judge of Franklin count_y for a writ of habeas corpus, and prayed to be discharged upon a hearing thereof, on the ground that “said mayor, in convicting the petitioner, exceeded his jurisdiction, in that the charter of the town of Russellville does not confer any authority upon the mayor and councilmen, or any other person, to pass an ordinance prohibiting the sale of whiskey in said town.” The writ issued, and on the hearing petitioner was discharged. The town of Russell-ville now prays this court “for a writ of certiorari, or other appropriate remedial writ,” to bring that proceeding before
The judgment of the probate judge can not be sustained on the ground upon which it was invoked and rested. The major and aldermen of the town of Russellville were, in our opinion, empowered and authorized to prohibit the sale of whiskey within the limits of the municipality. Such sale under the local prohibitory act, to which reference has been made, was an offense known and classed in the laws of the State as one against public morality and decency; and the charter, as we have seen, expressly authorizes the mayor and aldermen to pass all ordinances for the suppression of all offenses so known and classed. Whether this authorization was efficient in respect of all offenses which are known and classed in our laws as violative of public morality and decency, we need not inquire or decide; it is at least so far a valid delegation of power to the municipality as to cover all such offenses as fall within the ordinary police power of towns and cities; that is, if the offense attempted to be suppressed by the municipality be not only one classed as opposed to public morality and decency in the laws of the State, but also one control over which by means of the exercise of the corporate police power might have been specifically granted to the town, it is efficiently delegated by reference to it as an one known, in the laws of the State, as an offense against public morality and decency; and as the General Assembly might unquestionably have invested the mayor and aldermen of Russellville with power to prohibit and punish the sale of intoxicating liquor, in conservation of the peace and good order of the town, it follows that a delegation of such power in respect of a certain class of offenses, of which this is one, is valid as to this one, whether so or not as to others so classed.
It seems from this record that the writ of habeas corpus was sued out soon after Hurley was adjudged guilty and the fine imposed, and before he had failed to pay the fine and cost in the sense of authorizing his commitment to hard labor or prison “until such fine and cost are paid;” and the discharge which he seeks is from this temporary custody between conviction and such failure to pay which is allowed before sentence to hard labor or imprisonment for nonpayment, 'to afford him an opportunity of satisfying the judgment, and not from the judgment to hard labor or imprisonment which might ultimately have been imposed. Hence it is not necessary that we should decide whether such ultimate judgment could have been rendered — that is,
The order of the Probate Court discharging Arthur Hurley is vacated and annulled, and his petition for the writ of habeas corpus is here denied. The rights of the town of Russellville in respect of the custody of the defendant Hurley are the same as if he had casually escaped from the town marshal.
Petition for certiorari granted, &c.
