Smith v. Town of Warrior

STONE, C. J. Smith, the appellant, was arrested, tried and fined for an alleged violation of an ordinance of tbe town of Warrior, making it a penal offense to sell spiritous, vinous or malt liquors witbin tbe corporate limits of said town, in less quantities than one quart. From tbe judgment of conviction be appealed to tbe Circuit Court. In tbe Circuit Court a complaint was filed, setting out a copy of tbe ordinance, and averring that tbe defendant, Thomas L.. Smith, “did sell spiritous, vinous or malt liquors in quantities less than one quart, witbin tbe corporate limits of tbe town of Warrior, and that tbe same is in violation of, and contrary to an ordinance of said town of Warrior, in words and figures as follows, to-wit: ‘Be it ordained by the board of corporate authorities of tbe town of Warrior, that any person who sells, barters, exchanges, gives away, or otherwise disposes of any spiritous, vinous or malt liquors, or intoxicating bitters or beverages, witbin tbe corporate limits of tbe town of Warrior, shall upon conviction be fined,’” &c. [482] To this complaint defendant Smith demurred, assigning causes, as follows: 1. “Said ordinance is void for uncertainty.” 2. “Said complaint charges several and distinct violations of said alleged ordinance in one count.” 3. “It is not shown in said complaint whether defendant disposed’ of spiritous, vinous or malt liquors, or intoxicating liquors or beverages, or all of such liquors.” 4. “It is not shown by said complaint that plaintiff is a municipal corporation.” 5. “It is not shown by the allegations of said complaint that plaintiff had any power or authority to enact such ordinance.” 6. “A municipal corporation organized under the general laws of Alabama has no power or authority to enact such ordinance.” The demurrer was overruled, and this ruling on demurrer presents the sole question for our consideration. Under the statute law of this State, section 4385 of the Code of 1886, offenses of the same character, and subject to the same punishment, may be charged in the same count in the alternative. The averment of the sale, found in the complaint before us, would be sufficient in an indictment for retailing spiritous liquors without license, and we can not consistently hold that greater strictness should be required in a proceeding under the ordinance of the town of Warrior. Burdine v. State, 25 Ala. 60; Horton v. State, 53 Ala. 488; Williams v. State, 91 Ala. 14; Olmstead v. State, 89 Ala. 16. This principle disposes of the first three grounds of demurrer adversely to appellant. There is nothing in the fourth assignment of demurrer. The complaint sufficiently avers that the plaintiff is a municipal corporation. The fifth and sixth assignments of demurrer present the question of the power of a municipal corporation, incorporated under the general statute, to prohibit a sale of liquors at retail within the corporate limits. The language of the statute' — Code of 1886, § 1500 — -is: “The corporate authorities of the town have the following powers: . . 3. To license, tax, regulate and restrain . . . the retailing of spiritous, vinous and malt liquors within the corporate limits.” The word restrain was-first incorporated in this statute in the Code of 1886. Its primary meaning is to keep from action, to repress, to prevent, to debar. It is in the connection here used, the legal equivalent of the verb to prohibit, and authorizes municipal corporations incorporated under the general law to prohibit retailing of spiritous, vinous and malt liquors within their limits. [483] Tlie Circuit Court did not err in overruling the demurrer to the complaint. Affirmed.