125 So. 558 | Miss. | 1930
The appellant, W.H. Lindsey, was convicted in the mayor's court of the city of Louisville, on a charge of unlawfully having in his possession, and keeping for sale and barter, certain alcoholic and intoxicating liquors, to-wit, liquid ginger preparation known and described as "Jake" and Jamaica ginger, which said preparation, when drunk to excess, will produce intoxication, without having first obtained a permit to so keep for sale, barter, and to be given away said preparation; and from this conviction and the sentence he appealed to the circuit court. In the circuit court he was again convicted, and was sentenced to pay a fine of one hundred dollars and to serve a term of thirty days in jail, and thereupon an appeal was prosecuted to this court.
Section 1 of chapter 201, Laws of 1926, section 2302 of Hemingway's 1927 Code, provides that it shall be unlawful for any person, firm, corporation, or association, to sell, barter, or give away, or keep for such purposes, certain designated alcoholic preparations, including liquid ginger preparations, which, when drunk to excess in the form sold, will produce intoxication, except for medicinal or household purposes, or for uses in cooking, baking, and purposes incidental to the treatment of disease; while section 2 of said chapter 201, section 2303, Hemingway's 1927 Code, provides that said alcoholic preparations shall not be kept for sale, barter, or to be given away, or sold, bartered, or given away, for the purposes permitted by section 1 of the act, by any person, firm, or corporation, except traveling salesmen engaged *70 in selling exclusively to wholesale and retail merchants, until such person, firm, or corporation has obtained a permit so to do from the mayor and board of aldermen of the incorporated city, town, or village within which said business is to be carried on, or the board of supervisors of the county, if the same is to be carried on without the corporate limits of any city, town, or village. Section 2 of this act further provides that "such permits may be granted by said authorities upon written application of the person, firm or corporation desiring to deal in such preparation, and the permit, if granted, shall be in writing, shall be spread at large upon the minutes of the proceedings of the mayor and board aldermen or councilmen or the board of supervisors, as the case may be, giving the name of the dealer, or dealers, the preparation or commodities which it covers, and shall be for a period of one year from the date of its being granted," and "the granting of a permit to any person, firm or corporation, to barter, sell, give away, keep for sale, or solicit orders for the sale of same shall be in the discretion of the mayor and board of aldermen or the board of supervisors, as the case may be, and they shall likewise have full authority and power, in their discretion, to revoke the same."
The general ordinance of the city of Louisville making all offenses under the penal laws of the state amounting to a misdemeanor offenses against the town when such offenses are committed within the corporate limits of the town, which was introduced in evidence, is in the following language:
"An ordinance declaring all violations of the penal laws of the state of Mississippi, under the Code of 1906, amounting to a misdemeanor, to be, and the same are hereby declared a violation of the ordinances of the town of Louisville, Winston county, state of Mississippi.
"Sec. 1. Be it ordained by the mayor and board of aldermen of the town of Louisville, Miss., that all offenses under the Penal Laws of the state of Mississippi, *71 amounting to a misdemeanor, shall when said offenses are committed within the corporate limits of the said town, be offenses against the said town, and upon conviction thereof, the same punishment shall be imposed as provided by the laws of the state of Mississippi, with regard to such offenses against the state, not in excess of the maximum penalty which may be imposed by municipal corporations.
"Sec. 2. Be it further ordained that for good and sufficient cause this ordinance shall take effect and be in force from and after its passage. Approved and adopted May 7th, 1912."
The evidence offered on behalf of the city amply supports a finding by the jury that the appellant kept for sale and sold, within the corporate limits of the city of Louisville, Jamaica ginger, an alcoholic preparation, which will produce intoxication when drunk to excess, and that he had no permit from the mayor and board of aldermen of said city to so keep or sell such preparation for any purpose. The appellant seeks a reversal of this cause upon two grounds: First, that the court was without jurisdiction for the reason that the general ordinance of the city does not include and adopt chapter 201, Laws of 1926; and, second, that the said chapter 201, Laws of 1926, is unconstitutional and void for the reason that it grants to the board of supervisors or the mayor and board of aldermen, as the case may be, an arbitrary right and power to grant or refuse permits at will.
In support of the first contention that the offenses, defined in chapter 201, Laws of 1926, have never been made offenses against the city by any general ordinance so declaring, the appellant relies upon the fact that the title of the general ordinance of the municipality, which was offered in evidence, merely declares that it is "an ordinance declaring all violations of the penal laws of the state of Mississippi, under the Code of 1906, amounting to a misdemeanor, to be and the same are *72 hereby declared a violation of ordinances of the town of Louisville, Winston county, state of Mississippi."
Section 3410, Code of 1906, section 6956, Hemingway's 1927 Code, provides that "all offenses under the penal laws of the state amounting to a misdemeanor shall, when so provided by a general ordinance of the municipality, also be offenses against the city, town or village in whose corporate limits the offense may have been committed to the same effect as though such offenses were made offenses against the city, town or village by separate ordinance in each case;" while section 3406, Code of 1906, section 6952, Hemingway's 1927 Code, provides that "an ordinance shall not contain more than one subject, which shall be clearly expressed in its title." The subject indicated by the title to this ordinance is the adoption of the statute law defining offenses amounting only to misdemeanors as authorized by section 3410, Code 1906, section 6956, Hemingway's Code 1927, and although the title names only "violations of the penal laws of the state of Mississippi, under the Code of 1906," still the body of the act makes all offenses under the penal laws of the state of Mississippi amounting to a misdemeanor, offenses against the municipality, when committed within the corporate limits of the municipality. The title of the act sufficiently indicates the subject-matter and the purpose thereof, while the body of the ordinance clearly and expressly makes all offenses under the penal laws of the state amounting to a misdemeanor, offenses against the municipality when committed within the corporate limits thereof. The effect of this ordinance is to incorporate into the city ordinance all laws of the state of the grade of misdemeanors; and in the case of Smothers v. City of Jackson,
In support of the view that the said chapter 201, Laws of 1926, is unconstitutional and void because it vests in the county and municipal authorities the power to arbitrarily grant or refuse permits to keep for sale or sell the named alcoholic preparations for the particular purposes permitted, the appellant relies principally upon the case of Yick Wo v. Hopkins,
It is the general policy of the laws of this state to absolutely prohibit the sale, or keeping for purposes of sale, of all alcoholic and intoxicating liquors, and chapter 201, Laws of 1926, prohibits the sale of the named *74 alcoholic preparations, except for medicinal and household purposes such as cooking and baking, and further limits or restricts the right to keep for sale or sell these intoxicating preparations for the named purposes, to those persons who have first secured a permit so to do from the mayor and board of aldermen if they are sold or kept for sale within a municipality, or from the board of supervisors of the county if the same are kept or sold outside of a municipality. The act further confers upon the mayor and board of aldermen or board of supervisors, as the case may be, the authority or power, in their discretion, to grant or refuse, or revoke, a permit to sell or keep for sale such intoxicating preparations.
The sale of intoxicating liquors is a proper subject of legislative regulation, and as said by Justice FIELD in the case of Crowley v. Christensen,
The distinction between those classes of businesses which are harmless within themselves and useful to the community in which they are carried on and the sale of alcoholic and intoxicating liquors, was recognized by this court in the case of Perkins v. Ledbetter,
The holding of the court in the above case that the power to grant licenses conferred by chapter 39, Revised Code of 1880, is not mandatory, and that the designated county and municipal authorities may, at will, refuse to grant a license, although the applicant has fully complied with all the legal requirements and precedent conditions, is applicable and controlling in the case at bar. The power conferred upon county and municipal authorities by chapter 201, Laws of 1926, to grant or refuse permits, is no broader or more arbitrary than that conferred by chapter 39, Revised Code 1880, to grant and refuse licenses; and in view of the holding of the court in Perkins v. Ledbetter, supra, the provisions of the said chapter 201 in reference to granting permits must be held to be a valid exercise of the legislative power of regulation of the sale of liquors.
The judgment of the court below will therefore be affirmed.
Affirmed. *77