Alberson v. Mayor of Hamilton

Bleckley, Chief Justice. In 1873 (February 20th), an act was passed “ to prescribe the mode of granting license to- sell intoxicating liquors in the counties of Jefferson, Burke and Washington.” This act inhibited the grant of any license without the written consent of two-thirds of the citizen freeholders living within three miles of the place at which the applicant proposed to sell, it also prescribed a penalty upon the ordinary for violating this restriction, declaring such violation a misdemeanor. Pamph. acts 1873, p. 271. In 1875 (March 5th), this act was amended, and its provisions were extended to several counties, including the county of Harris. Pamph. acts 1875,p.330. In 1887 (September 20th),an act waspassed, with the following caption. “ An act to amend an act approved March 5th, 1875, which amended an act approved March 20th, 1873, so as to applythe provisions of said act of 1873, to the incorporated towns and villages in Harris county.” It will be noticed that in describing the date of the act of 1873,' March instead of February is specified as the month in which it was ap [32] proved, but this is an obvious mistake, and the mistake is repeated in the body of the act. No point, however, is made upon this erroneous description. The act proceeds to insert certain words in certain positions, and then prescribes “ that said amended acts shall read as follows : That it shall not be lawful for the ordinariés, county commissioners, or the mayors and couneilmen of incoxporatedtowns and villages in Harris couxxty to grant a license to any person to sell intoxicating liqtxors in said county, in any quantity, unless the applicant for license shall, in addition to complyixxg with all the requisites of the law as it now stands, present to said ordinaries, county commissioners, and xnayors and councilmen of the incorporated towns and villages in said county of Harris, to be filed in their office, the written consent to the granting of said license, sigxxed by two-thirds of the citizens freeholders withixx the corporate limits of said towns and villages ixi Hams county.” Another section declares the violation of the act by any of these officers to be a misdemeanor, and prescribes a penalty therefor. Pamph. acts of 1887, p. 844. Alberson applied to the mayor and council of Hamilton, Harris county, for a license, and the oxxly objection to granting it was that he did not preseixt the written consent of two-thirds of the citizens freeholders within the corporate limits of the town. Alberson applied for a mandamus to compel the grant of the license notwithstanding this objection. The mandamus was denied. Two questions are made before us on the constitutionality of the act of 1887. 1. Does it contain two subject-matters? We think not. The first act of the series laid down the terms upon which licenses were to be granted, and prescribed a penalty for graxxting them when the terms were not complied with. Duty and penalty constitute but one [33] subject of legislation. Tbe second act amended the first, by extending it to several counties, including Harris county; and the third amended-the second, and enlarged the first, by bringing within their purview municipal license and municipal' officers in Harris county. The third act, like the first, deals with the one subject-matter of regulating .the. grant of liquor licenses, and prescribing penalty for violation, the penalty being the very same as that which the first act prescribed. 2. Surely there is no force in the objection that the •title of the third act is not broad enough. The title indicates that the second act is to be' amended, and that the second had already amended the first. The first, as we have seen, embraced penalty as well as duty, and the like elements come down through the whole series. It has never been held that the title of an act passed to amend another act shall indicate more specifically the object of the amending act than was done in this instance. The mayor and council of Hamilton had no legal authority to issue the license applied'for; they did their duty in refusing; and the judge did his duty in denying a mandamus. Judgment affirmed.