89 Ala. 228 | Ala. | 1889
The appeal is taken from an order of the judge of the seventh judicial circuit, denying appellant’s application for a mandamus to compel the probate judge of Calhoun county to issue to him a license to retail spirituous liquors within the corporate limits of the city of Anniston,
The first four sections provide, that whenever fifty or more resident house-holders and free-holders of the county file in the office of the judge of probate a petition in writing, praying for an election to ascertain the wishes of the people as to the prohibition of the sale of intoxicating liquors in the county, it shall be the duty of the judge to order an election, and fix the time of holding the same, not more than sixty, nor less than thirty days from the time of filing the petition; and thereupon, the sheriff is required to give, by publication, notice of the time of holding, and the purpose for which such election is held, for forty days. Provision is made for the appointment of inspectors and returning officers, and for holding an election in the several precincts of the county, at the time appointed, which shall be governed in all respects, with an immaterial exception, by the general election laws which may be in force at the time. All persons who are at the time qualified voters, shall be entitled to vote at such election; and if, upon the return and count of the votes cast, it be found that a majority of all the votes cast is for prohibition, “then it shall be the duty of the probate judge to record the result in his office, and to give notice for thirty days, by publication in all the newspapers published in the county, that a majority of the qualified voters, who voted at said election, voted for prohibition.” The fifth section declares, “that after the expiration of the thirty days notice, it shall be unlawful for any person, firm, or corporation to sell, give away, or otherwise dispose of any spirituous, vinous or malt liquors, or intoxicating bitters, or any brand of bitters or medicines with sufficient alcohol or spirituous liquors therein to make a man drunk, within the county of Calhoun;” and the sixth section makes a violation of the provisions of the fifth section a misdemeanor, punishable by fine and imprisonment, or hard labor for the county.
The Constitutions of many States contain a clause prohibiting any public act, or law of a general nature, from taking effect until the expiration of a specified time after its passage, or from the end of the session at which the same was passed, or after its promulgation, unless the General Assembly shall otherwise direct in the prescribed manner. The courts, in construing such constitutional prohibition, have held, that such direction must be in a clear, distinct, and unequivocal provision, and can not be aided by intendment, or implication; and must direct that the act, as a whole and entirety, shall take effect at a different time than provided in the Constitution.—Wheeler v. Chubback, 16 Ill. 361; Rice v. Ruddiman, 10 Mich. 125. These, and other decisions cited by counsel, construing these constitutional provisions, and the time when certain acts under their operation took effect, shed but a dim light on the question involved, and afford but slight assistance in its solution. The legislature could not disregard or repeal them. The rule in this State is a mere
A comparison of the ninth section of the act with the other provisions will solve all doubt as to the time when it was intended the different provisions should go into operation. That section provides: “That this act shall be so construed, that if an election is held in pursuance of its provisions during the year 1887, the prohibition provided for by the fifth and sixth sections of this act, shall not take effect till after the 30th day of April, 1887, and that the probate judge of Calhoun county shall not issue to any person or persons a liquor license from the 1st day.of January, 1887, for a longer period than the 30th day of April, 1887; and if- the result of the election is in favor of ‘against prohibition,’ then the said judge of probate can issue liquor license from the 30th day of April, 1887, under the law as it now is.” Manifestly, it was contemplated that an election might be held in 1887, the result ascertained, and the requisite notice thereof given, so as to put the penal sections of the act into operation prior to the 30th of April, 1887; hence the express provision, that the fifth and sixth sections shall not in any event take effect, until after that date. Unless the provisions providing the mode for ascertaining the wishes of the people had force and effect from the passage of the act,- notice of the time of holding the election, the ascertainment of the result, and notice thereof for thirty days in all the newspapers, could not have been effected so as to put the act into operation by the 30th day of April. Whether the act should take effect at all, was dependent upon the wishes of the people, ascertained by an election; and though the result might be in favor of prohibition, the fifth and sixth sections, which constitute the penal parts, could not have taken effect until after the 30th day of April, 1887, more than sixty days after the adjournment of the legislature. By the terms of the act, the sections providing and regulating the proceedings for ascertaining the will of the people, and the punitive sections, took effect at different times. By prescribing a different time for the penal sections to take effect, the act is exempted from the operation of section 4448, and the first four sections, under the general rule, took effect from the date of its approval by the executive,
The election was held February 17,1887. Soon after the result was found to be in favor of prohibition, the judge of probate gave notice thereof in all the newspapers in the county for thirty days, excepting two. In Toole v. State, 88 Ala. 158; 7 So. Rep. 42, decided during present term, the sufficiency of the notice to put the act into operation was called in question for the first time. It was ruled, that the provision requiring notice of the result of the election by publication in all the newspapers published in the county for thirty days was mandatory and imperative, and a condition precedent to the operative force and effect of the punitive clauses of the act. Within a few days after this decision was announced, the judge of probate, on December 27th, 1889, again published notice of the result of the election, in all the newspapers then published in the county, and continued the publication for thirty days. We are not clearly informed on what ground it is contended that the’ last notice is unauthorized and ineffectual. Though non-user may be continued so long, that the course and character of the intervening legislation may be such as to render its provisions nugatory, or they may become purposeless, it does not, of itself, effect the repeal of a statute. The act made it the duty of the probate judge, ministerial in its nature, to give the required notice of the result of the election upon its ascertainment; the purpose being, that the people might have full time to become acquainted with the terms of the statute, which they are required to obey. Neither the failure, nor refusal, nor abortive attempt of the judge to give notice, can operate to
“An act to amend an act entitled ‘An act to incorporate the town of Anniston, Calhoun county, Alabama,’ approved February 1, 1879, and the various acts amendatory thereof,” was passed by the General Assembly, and approved February 23, 1889. — Acts 1888-9, p. 601. By this act, which seems to be a complete revision of all previous acts, and to cover the entire subject of the powers of the municipal government, the city of Anniston was incorporated. By the seventh section, power is conferred upon the mayor and city council “to license, tax, and regulate auctioneers, grocers, merchants, retailers, . . . and all other privileges.” The legislative intent, that the term “retailers” should be used in the legal and ordinary signification, which by long continued use it has acquired in our statutory vocabulary, is too clear to admit of doubt. Unless so, the term as employed is without distinctive meaning, for merchants, grocers, confectioners and other persons engaged in mercantile pursuits, who sell at retail, are specially named. Harris v. Intendant of Livingston, 28 Ala. 577. It is contended that this act, being a later enactment, operates to repeal the act of December 7, 1886, prohibiting the sale of intoxicating liquors in the county. Undoubtedly, when the provisions of a special act, in respect to a particular municipality, passed subsequent to an act of a general nature, are so inconsistent with the provisions of the latter, as that they can not operate together within the same territorial limits, the effect is to take the municipality out of the operation of the general law. But the conferring of power on the municipal authorities to tax, license, and regulate the retailing of spirituous liquors, does not, ipso facto, repeal the general law, prohibiting the sale of such liquors in the county. When an ordinance is passed for that purpose, its effect is
Counsel for appellant cite the case of the State v. DeBar, 58 Mo. 395. In 1870, the charter of the city of Bt. Louis was amended, so as to confer power to regulate or suppress bawdy-houses. In consequence of a decision of the Supreme Court, the charter was again amended in 1874, by substituting the words “to suppress, but not to license bawdy-houses.” After this last amendment, the defendant was indicted, under the general law of the State, for keeping a bawdy-house in the city of St. Louis. The court ruled that the amendment of 1874, which repealed the amendment of 1870, did not revive the general criminal statute in the city, on the ground that the general law contained a provision, that the repeal of a law should not, by implication, revive a former law. In speaking of the case of State v. DeBar, Judge Dillon says, in his work on Municipal Corporations, § 88, n. 2: “This last decision seems to the author to be erroneous, on the ground that the act of 1870 did not, ipso facto, repeal the general law in the city, but such repeal, or suspension rather, was only effected when the city passed the ordinance. If so, a repeal of the ordinance by the council, without the act of 1874, would have left the general law of the State in force, and its repeal by the act of 1874 would have precisely the same effect.” These remarks, which appear to us sound and conservative, are apropos to the question here involved. It not appearing that any ordinance licensing, taxing and regulating retailers, had been passed by the mayor and city council of Anniston, the act of December 7, 1886, prohibiting the sale of intoxicating liquors in Calhoun county, remains in force in that city.
The application for the license, not having been made until after the act took effect, was properly refused by the judge of probate.
Affirmed.