121 Ala. 363 | Ala. | 1898
— By act approved February 11th, 1881 (Acts 1880-81, p. 397), the sale, giving away or otherwise disposing of any spirituous, vinous, or malt liquors, or intoxicating bitters, etc., was prohibited under penalty within three miles of Pratt Mines school house in Jefferson county.
On March 7, 1873 (Acts 1872-3, p. 173), a similar act was passed prohibiting such sales within two miles of any coaling grounds in the county of Jefferson and other named counties.
On the 6th February, 1899, Ensley City was incorporated under the general laws of the State for incorporating towns of not less than 100 nor more than 3000 inhabitants. Code § §2937-2967. Among the enumeration of the powers of municipalities thus incorporated, appears the power, “To license, tax, regulate and restrain * * * the retailing of spirituous, vinous and malt liquors within the corporate limits.” That part of Ensley City within which the petitioner in this case proposed to obtain a license to sell and retail spirituous, vinous or malt liquors, it Avas admitted is within three miles of the Pratt Mines school house as located on the 11th February, 1881, and within two miles of slopes No. 3 and 6 of the property of the Tennessee Coal, Iron & Railway Company, where coal is, and was being mined at the time of filing said petition.
On the 16th February, 1889, an act was approved, the first section of which provided, “That after the 31st day of December, 1889, it shall be unlawful for any person to sell, give away, or otherwise dispose of, any spirituous, vinous or malt liquors, intoxicating hitters or cordials, or fruits preserved in alcoholic liquors in Jefferson, Walker, Talladega, Autauga and Payette counties,
The first section of the act was afterwards, on the 8th December, 1892, amended by adding a proviso, “That it shall be lawful for the distiller or OAvner of any laAvfully registered distillery to sell any kind of spirituous or malt liquors made or distilled by them, at Avholesale at the place of such distillery, in precinct (37) thirty-seven, in the county of Jefferson, provided further, that the said OAvner or distiller shall first obtain such license as is, required of Avholesale dealers únder the laAvs of the State of Alabama.” (Acts 1892-3, p. 15.)
The petitioner proposed to show in evidence that a considerable, portion of precinct 37 of Jefferson county was AAdthin the radius of three miles of Pratt Mines school house, which evidence, against the objection of respondent that it Avas illegal, Immaterial and incompetent, not shedding any light or having any bearing on the question at issue, Avas admitted. We fail to discover Avhat bearing that matter had upon the trial of the petition. The evidence related alone to the sale of whiskey by Avholesale, under the conditions specified, and not to other spirituous, or vinous or malt liquors, and even if it were admitted, Avhich is not done, that in this respect, the later act repealed said prohibitory acts of 1873 and 1881, as to the wholesale of whiskey under license, at the distillery, Avlien distilled within said prohibited district, it Avould not folloAV and cannot be allowed that it repealed those acts as to the retailing or giving away of the other liquors named in those statutes within said prohibited territory. The prohibitive force and operation of the enactments as to all else, except the sale of whiskey under the conditions specified, Avould,' even if repealed as to the sale of such whiskey, stand unaffected by the later enactment.' The contention of the petitioner that said amendatory act of 1892-3, under any possible, construction, repealed said acts of 1873 and 1881 in their entirety, may, therefore, be allOAved to pass from further consideration.
The only remaining question is, whether the said acts of 1873 and 1881 have been repealed by the charter of Ensley City or by the said act of 16th February, 1889,
The effect which said act of 1889 in forbidding the liquor traffic in Jefferson and other counties, “except in incorporated towns and cities having police regulations both day and night,” had upon the said act of 1881, was considered by this court in the case last above cited, and
Affirmed. .. ..