Hurley v. City of Corinth

52 So. 695 | Miss. | 1910

Anderson, T.,

after stating the facts as above, delivered the opinion of the court.

Conceding that the ordinance in question, so far as it attempts to prohibit the storage of intoxicating liquors within the municipal limits of the city of Corinth for sale without the state, is void (which we do not decide), there is left an ordinance prohibiting such storage for sale within the state, which is separable -from such objectionable clause and may stand alone. One is not dependent on the other. -There is a complete and consistent ordinance, susceptible of being enforced, without the objectionable provision. Had the city-the power to pass such an ordinance 2

Corinth is not under the provisions of chapter 99, Code 1906, and amendments thereto. It has a separate charter of its own; but section 8329, Code 1906, is made part of its charter by section 3441 of the Code, and section 3329 provides that municipalities may pass ordinances prohibiting, within their corporate limits, the commission of any act which amounts to a misdemeanor under the laws of the state. This is- express authority for the ordinance in question; for section 1797, c. 114, and section 1746, c. 115, Acts 1908, denounce as a misdemeanor the having in possession, or keeping, for unlawful sale, intoxicating liquors, and that is exactly what the ordinance does, with reference to such liquors so kept within the corporate limits of the city.

Under our statute there can be no valid keeping for sale of intoxicating liquors, except by druggists, for limited purposes named in the law. The ordinance in question excepts from its-provisions such druggists, and prohibits the storage of intoxicants for sale, etc., meaning for unlawful sale; for there can be no lawful keeping for sale for any other purpose. In other words, the ordinance prohibits storing or keeping intoxicating liquors within the limits of the city of Corinth, for unlawful sale, as do our statutes. The agreed facts show that appellants had their liquors stored in the city of Corinth for sale in violation of the laws of the state; that the only sales made from their warehouse were in violation of the laws- of the state; that such sales were made within the state, and within the corporate limits of Corinth; that-orders were received from persons outside of the state, addressed to Potts & Perkins, or to their agent, Hurley, at Corinth, accompanied with either express or post office money orders for the price, and on receipt of such orders the liquors were delivered to the carrier at Corinth and shipped to the consignees out of the state. Sales so made are sales within this state, and in violation of the statutes thereof. Delivery to the carrier was delivery to the consignee. Pearson v. State, 66 Miss. 510, 6 South. 243, 4 L. R. A. 835; Anglin v. State, 96 Miss. 215, 50 South. 492.

■We decline to consider the questions whether the ordinance is valid,-so far as it prohibits the storage of intoxicants for sale out of the state, and whether appellant was legally convicted for a violation of that provision; for they are not before the court. We have here a valid ordinance, and the agreed facts showing a continuous violation of same by the appellant, Hurley, and, further, that if the provision making storage for sale out of the state were valid, it is not being violated; for such agreed facts show that all sales were made within this state.

The writ of prohibition may be resorted to in a proper case to prevent vexatious prosecutions under a void ordinance, as held by this court in Crittenden v. Booneville, 92 Miss. 277, 45 South. 723; but this is not a case of that kind.

Affirmed.