Fourment v. State, 46 So. 266

Fourment v. State

46 So. 266 | Ala. | 1908

McCLELLAN, J.

Where one is in custody which is predicated upon an assumed and exercised judicial jurisdiction of matter or person that it is asserted did not legally exist, habeas corpus is the remedy to institute an investigation of the existance of such jurisdiction; an inquiry very different from one involving the merely erroneous or irregular exercise of existent jurisdiction. Code 1896, § 4838; Exparte Sam, 51 Ala. 34; City of Selma v. Till, 42 South. 405; Church on Habeas corpus, §§ 356, 352. That this remedy, under the conditions defined, is appropriate, has, on several occasions, served to invite, without question, the decision of this court. *113We therefore take up for review the constitutionality of the act approved August 2, 1907. Acts 1907, pp. 518-519. This bill was, by the Senate, substituted for Senate Bill 344. The latter bill had been introduced and referred to a standing committee of that body which committee had, before the substitution, regularly considered it and reported thereon favorably. The title of the original bill was: “To further regulate opening, closing, keeping and selling or giving away spirituous, vinous or malt liquors under a license operating saloons in the state of Alabama and to punish the violation thereof.” We are not advised further than is indicated by the quoted title what the contents of the hill was. The title of the substitute, which became the enactment is: “To further regulate the opening, closing and operating saloons, and giving away or selling spirituous, vinous or malt liquors under a license from the State and to punish violations thereof.” It is objected that the substitution of the latter for the former bill violated this provision of section 61 of the Constitution: “* * * And no bill shall be so altered or amended on its passage through either House as to charge its original purpose.” It is also objected that the title to the enactment embraces two subjects, in violation of section 45 of the Constitution, unless it is -construed to have application only to saloons. We will treat both objections at once.

The original purpose, evinced by the title to the original bill, was to regulate the sale or giving away of liquors through a regulation of the saloon. The “saloon,” in common parlance, is a place where intoxicating liquors are sold. It has other definitions, but the context leaves no room for doubt that its meaning was intended to be as we have stated. More minutely viewed, the original purpose was to regulate the disposition of intoxicants by subjecting the more common agency thereof— *114the saloon — to regulation in respect to opening and closing, keeping and selling or giving away the defined liquors. The title to the substituted measure reaffirms in the main, in its first sentence, this idea of regulation through the saloon; but the succeeding phrase employs language sufficiently comprehensive to include, for the essential purpose of conveying notice to the members of the Legislature and-to the public as well, the regulation of the sale or giving away of spirituous, vinous or malt liquors through, by, or from any agency in the state holding a license to deal in the liquors described. There are two kinds of licenses issuable under which liquors may be dealt in, viz., to the retailer, and to the wholesaler. If, as is urged, we should interpolate in the caption to the enactment the words “by them” (meaning saloons), after the word “selling,” an unwarranted limitation would be put upon the térm “license” as it is used in the title, and the result would be to exclude every other class of licensable agencies dealing in the sale of such liquors in this state.

It is apparent, from a comparison of the titles and the enactment as well, that the substitute was but an extension — an expansion — of the original method by which the regulation desired was to be effected; that the greater, embraced in the comprehensive second phrase of the title to the substitute, includes the lesser, the saloon. That such an extension or expansion did not operate a. departure from the original purpose as indicated by the title to the original bill, and that, hence, was not amenable to the constitutional requirement with respect to hew bills (Const. § 61), is a conclusion supported, in principle, by the following decisions of this court: Stein v. Leeper, 78 Ala. 519; State v. Buckley, 54 Ala. 599 ;Hall v. Steele, 82 Ala. 562, 2 South. 650; Sou. Ry. v. Mitchell, 139 Ala. 629, 37 South. 85.

*115Coming to tbe body of tbe enactment, tbe act itself in all its provisions, except in tbe one respect to be mentioned, is so palpably referable and cognate to tbe subject expressed in tbe title that we merely direct tbe reporter to set out tbe bill as a demonstration of the correctness of this conclusion.

Tbe exception just above referred to is tbe word “delivers” as it appears in section 2 of tbe act. Without deciding but conceding it for tbe purposes of this decision only, we are of tbe opinion that term may be stricken from tbe act as without tbe scope of tbe subject expressed in tbe title, and that there will remain “a complete statute, sensible, and capable of being executed and wholly independent of tbe rejected word ‘delivers.’ ”— State v. Davis, 130 Ala. 148, 30 South. 344, 89 Am. St. Rep. 23.

Tbe act is constitutionally free from tbe objections urged on this appeal, and tbe order remanding tbe petitioner is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.