State ex rel. Mayor of Elba v. Rushing

McOLELLAN, C. J. Tbe act of December 7th, 1896, prohibiting the sale of liquors within five miles of Elba High School, in the town of Elba, was not, ipso- facto, repealed by the provision of the charter of the town of Elba (February 21, 1899) conferring upon the mayor and council the power, to be exercised by ordinance, “to restrain, license and regulate the sale and disposal in any way of spirituous, vinous or malt liquors sold or disposed of within the corporate limits of said town; to fix the amount of license not to exceed two thousand dollars;” but until this power is exercised by licensing the liquor traffic in the town, the earlier prohibitory act continues in force.—Olmstead v. Crook, 89 Ala. 228; Ex parte Mayor and City Council of Anniston, 90 Ala. 516. It is not made to appear in. this case that the mayor and council of Elba has ever adopted an ordinance licensing the sale or other disposition of liquors in the town. It may well be, indeed, that the mayor and council, exercising the power to restrain, given along with the power to license and regulate, have adopted an ordinance prohibiting the liquor traffic in the town, and making it an offense against the town, as well as against the State, to sell or otherwise dispose of liquors within the corporate limits. However that may be, the fact remains that the prohibitory kct of 1896 is not shown to have been repealed, and is, therefore, to be taken to have been in force ever since its enactment and to be now of force and operative. Section 13 of the act of February 18,1899, “To authorize municipal and other subdivisions of the State to buy and sell spirituous, vinous and malt liquors, and to further regulate or prohibit the sale of such liquors,” (Acts, 1898-9, p. 108), is as follows: “This act shall not be construed to repeal any law, local or general, that tends to prohibit, retard, restrain or restrict the traffc in spirituous, vinous or malt liquors, or intoxicating drinks of any kind;” and the repealing clause of that act is in this language: “All laws and parts of laws that conflict with the provisions of this act, except those referred to in the 13th section of this act, are hereby repealed.” And sec [192] tion 1 of said act expressly confinés its operations to incorporated towns and cities “in which, the sale of liquors is not prohibited by law.” So that no town or city in which there was such prohibition on February 18, 1899, and which prohibition has continued to this time, has or has ever had the power and authority to establish a dispensary under that act. From the foregoing propositions, namely: first, that the prohibition of the act of December 7th, 1896, has all along been and is now of force in the town of Elba, and, second, that because of that fact the town of Elba was excluded from the Dispensary Act of February 18th, 1899, it follows that the mayor and council of that town have no right, power or authority to establish a dispensary or to engage in the liquor traffic at all, and they were not entitled to have a license issued to them under said— or any other — act. We will add that the suggestion of counsel that the fact that the town had by ordinance in 1900 established a dispensary was a repeal of the local prohibition statute, has been considered, but we think it is without merit. The establishment of a dispensary by, and to be operated and maintained by the town, was in no sense the exercise of the power to license given in the charter of 1898 which alone could operate to repeal the local prohibitory act. However, as we have seen, the Dispensary Act in expressed terms provided against a repeal of the local act by its provisions, and also excluded its own operation' in the town of Elba because of the prohibitory statute existing in that town. We have not considered other questions argued in the brief going to the integrity of the acts of September 15, 1903, prohibiting the liquor traffic in Coffee county, and of October 1, 1903, establishing a dispensary in Elba, since on the consideration adverted to, the judgment of the county court denying mandamus must be affirmed. Affirmed.