102 Ala. 173 | Ala. | 1893
By an ordinance of the city of Troy, dealers in spiritous liquors were required to pay two thousand dollars for a license. For a violation of this ordinance the defendant was arrested and fined, and, refusing to pay the fine, imprisoned. He sued out a writ of habeas corpus before the probate judge who, upon the hearing of the case, refused to discharge the petitioner, and remanded him to the custody of the marshal. From this judgment the petitioner prosecutes his application to this court. All the facts are agreed upon, and the only question is as to the legality of. the ordinance. The prisoner contends that it is prohibitory in its character and effect, and that such' an ordinance is not authorized by the municipal charter of 'the city of Troy.
The act of the legislature, 1890-91, p. 724, declares that ‘ ‘The mayor and councilmen shall have power and
Independent of the judicial construction given to a statute which merely confers the power to license and regulate a business, a reading of the act in question clearly demonstrates that the intention of the legislature was to authorize the mayor and councilmen to “license and regulate,” and not to “restrain and prohibit” the sale of spiritous liquors. Whenever it was intended to confer such power, the words used are “restrain,” “prohibit,” but these and similar words are not used when the power in regard to the sale of liquors was conferred. We are of opinion the legislature has the constitutional right to prohibit or authorize' any community, or municipality, absolutely to prohibit the sale of spiritous liquors. — Intendant of Marion v. Chandler, 6 Ala. 899; Ex parte Burnett, supra; Ex parte Cowert, supra; Harris v. Intendant of Livingston, 28 Ala. 579.
Having the power to prohibit, the legislature undoubtedly could fix the price of a license to sell liquor at any sum, and, had it seen proper to exercise the right, could have conferred on the mayor and councilmen of Troy, by express provision, the power either to prohibit en-* tirely or fix the price of the license at two thousand dollars. It has, however, declared that the “Mayor, and councilmen shall have the power to license and regulate the retailing and the wholesale of liquors within the corporate .limits,” and “to fix the price or tax on all licenses. ’ ’ The only limitation on the power and dis
The authority granted to the mayor and councilmen of Troy is more specific and enlarged than that under which the town council of Cahaba acted. In the case of Ex parte Marshall, 64 Ala. 266, the rule recognized, that the “license may be graduated by the populousness of the community in which the privilege was to be exercised, and the profitableness of the employment;” and in Van Hook’s Case, 70 Ala. 361, the additional expense
Under these rules and principles of law we cannot say the ordinance is void upon its face. What are the agreed facts? The city of Troy has a population of about four thousand inhabitants. That in the years 1890, 1891, 1892, 1893 there were three separate retail liquor dealers in Troy, who paid a license of $2,000, and each did a business of about $38,000 in the year 1890, and the business of each In 1891 amounted to $35,000, and in the year 1892, to about $24,000, and in the year 1893, each did a business of $20,000, an aggregate for the four years of $351,000.00. The capital invested upon which this business was transacted is not stated, but it is stated ‘ ‘that the profits on the amount of business was about one-fourth of these amounts, out of which were paid all licenses, bosides house rent, clerk hire and other current expenses.” It is also stated that the expenses of petitioner, Sykes, for the year 1893 approximated $0,000. What these expenses were for, whether confined solely to the busines of selling liquor, or whether family expenses were included is not stated, and the expenses of the two other dealers are not given. It is also stated that “the other dealers for the year 1893, did an unprofitable business after paying their licenses and other expenses.” It also appears that the other two dealers have paid the license for the year 1894, and are continuing in the business. The profits at 25 per cent, on total sales of spiritous liquors in Troy for four years, not exclusive of current expenses, were about $88,000.
We do not think there is anything in this showing, which reasonably satisfies the mind that the license required is prohibitory in a business view. Again, it is agreed in the statement of facts, that there is an average of ‘ ‘ seven hundred and fifty violations of the city ordinances during each year, and that two-thirds of them are the results of whisky sold in Troy.” It is further agreed, that the present necessary expenses of the city for a marshall and police force exceed thirty-one’hundred dollar's, “and if there were no saloons and no sale of whisky in Troy, this expense could be reduced to $1,000.” Confessedly then, two-thirds- of all the violations of the ordinances of the city, and 'two-thirds of the entire expense required to-- police the' • city ' are
It is futher argued that the amount required for a license shows that the purpose was to raise a revenue for the city, and not for police purposes. It is manifest that if the purpose of the ordinance was to raise revenue, then it was not intended to be prohibitory. A. business which is prohibited cannot yield a revenue from licenses. We do not think there is any foundation for the argument, and the facts of the case, without repeating them,1, j ustify this conclusion.
Doubtless in providing for the necessary expenses of the city, and in fixing the assessments of taxes upon the property, the income anticipated from licenses, as well as fines, entered into the computations, but this alone would npt determine that the licenses were for .revenue, as distinguished from a license tax, for police purposes. There ar§ gome dicta in. our own court and declarations, of principle by high authority not altogether in harmony with all that we may have said, but our construction of the act of the legislature conferring municipal power upon the mayor and councilmen of the city of Troy is, that there is a full grant of power “to fix the price of licenses,” limited only by the grant to “license and regulate the sale of liquor, ’ ’ and the only qualification of
This was the conclusion reached by' the trial judge, and in our opinion it was correct, Petition denied, ■
Affirmed.
