Harris v. Intendant & Council of Livingston

STONE, J. — The act of 1835, “ to incorporate the town of Marion,” employs almost the same language-as that found in the act “ to^ extend the power and authority of the intend-ant and council- of the town of Livingston.” — Sess. Acts 1851-2, p. 336. The former statute received a judicial construction in this court, in the case of The Intendant and Council of the Town of Marion v. Chandler, 6 Ala. 899. It was there held, that the ordinance of the intendant and council was intended to operate a prohibition of retailing; and that, as such, it was within the pale of the powers conferred by the act of incorporation. The record does not inform us what sum the Livingston ordinance prescribed as the cost of a-license to retail; but we have seen that, under the above authority, it might be made prohibitory. ■In this case, the ordinance prohibits a sale in less quantities than twenty gallons; and the question is presented, does the act of incorporation confer that power ? ■ All the grants in this connection, except one after noticed, relate in terms to retailing. Is every sale, in quantity less than twenty gallons, necessarily a sale by retail ? Lexicographers place the word ‘retail’ as the opposite of wholesale; and if we should consult them alone, we would be left in much uncertainty on this point. Our own long continued legislation on this subject, furnishes the best exposition of the intention of the legislature. Thus defined, the business of retailing, and the keeping of a tippling house, are substantially one and the sanie occupation. To sell at retail, is to sell in small quantities. The general prohibition against unlicensed venders is, •that they shall not sell in quantities less than one quart. There are also qualified limitations on the right to sell in quantities of a quart.and upwards. We hold, that the legislature, in the act of incorporation, when they employed the terms ‘ retailer ’ and ‘ retailing,' must be presumed to have had reference to our general policy in relation to the sale of ardent spirits. The ordinance in question goes beyond that boundary, and is unauthorized and inoperative. The general grant to the corporate authorities, “ to adopt [580] such a system of police and municipal regulation, in regard to tbe traffic in ardent spirits,” &c., is confined in express terms to public order, morality and policy, in reference to the black or colored population. This is persuasive to show that a larger discretion is conferred over the traffic with slaves, than over the general commerce in ardent spirits. The jurisdiction of incorporated cities and towns, is not limited to the express grants of authority. They have many incidental powers. — Mayor, &c., of Mobile, v. Yuille, 3 Ala. 137; 6 Ala. 899. But these incidental powers must be ger-man to the purpose for which the corporation.was created. They will not be enlarged by construction, to the detriment of individual or public rights. — Stormfeltz v. The Manor Turnpike Company, 13 Penn. 555; March v. Commonwealth, 12 B. Monroe, 29. The judgment of the circuit court is reversed, and the cause remanded. •: