Ex parte Mayor of Anniston

OLOPTON, J. The ordinance, for the violation of which Mrs. Untreiner was arrested under a warrant issued by the Recorder of the city of Anniston, was passed June 14, 1889, and reads as follows: “Be it ordained by the Mayor and City Council of Anniston, That any person who, without license as a retailer, sells spirituous, vinous or malt liquors within the police jurisdiction of the city of Anniston, in any quantity less than a quart, or in any quantity if the same or any portion thereof is dnmk on or about the premises, must on conviction be fined one hundred dollars, or be imprisoned not less than one, nor more than six months.” It is contended, that the purpose of the ordinance is to punish the offense of retailing without a license, and power to pass it is claimed under a provision of the seventh section of the act of February 23,1889, incorporating the city of Anniston, which confers on the Mayor and City Council general power “to provide for the punishment by fine or imprisonment for the commission of any offense punishable by the laws of the State of Alabama.” Another provision of the same section confers special power “to license, tax and regulate auctioneers, grocers, merchants, retailers, . . . and all other privileges.”- — Acts 1888-9, p. 601. The general power is limited and qualified by the special provision specifying the particular purposes for which an ordinance may be passed. In 1 Dillon on Mun. Corp. § 316, the rule is stated as follows: “When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter, or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of 518 their municipal authority and not repugnant to the constitution and general laws of the State.” On this principle, the authority to pass ordinances in respect to the subject-matter of retailing is derivable only from the special provision conferring power to license, tax and regulate retailers. The municipal authorities had not at the time of the passage of the ordinance, nor have they since, provided any legal mode by which a retailer can obtain a license. And in Olmstead v. Crook, 89 Ala. 228, we decided 'that the act of December 7, 1886, prohibiting the sale of spirituous, vinous or malt liquors in Calhoun county, took effect before the alleged violation of the ordinance, and arrest of Mrs. Untreiner, and is in force in the city of Anniston, no ordinance in respect to such matter having been passed by the municipal authorities, under the special power granted by the incorporating act. No mode having been provided by which she could have obtained a license to retail, the ordinance is prohibitory in its nature. Power conferred on a municipal corporation to grant licenses to retailers, and to regulate them, does not confer power to prohibit the sale of spirituous liquors.—Miller v. Jones, 85 Ala. 87. In reference to the charter of the city of Anniston, it is said in Ex parte Reynolds, 87 Ala. 138, “It confers the power to ‘license, tax and regulate grocers, merchants, retailers,’ &c. but it confers no power to prohibit the sale of liquors.” The ordinance, being prohibitory, is invalid for want of power in the municipal authorities. Mrs. Untreiner was illegally restrained of her liberty, and was properly discharged on habeas corpus by the judge of probate.—Ex parte Burnett, 30 Ala. 461. Certiorari denied.