Ex parte Hall

47 So. 199, 156 Ala. 642, 1908 Ala. LEXIS 85

• Court: Supreme Court of Alabama
• Decided: February 13, 1908
• Status: Published

Opinion

ANDERSON, J.

Section 14 of the act of 1907 (Loc. Laivs 1907, p. 884) makes it unlawful to sell liquor, etc., in the town of Florala, except by a dispensary to be established thereunder, and is a good law to prohibit, if not otherwise bad. — Mitchell v. State, 134 Ala. 392, 32 South. 687; City of Uniontown v. State, ex rel. Glass, 145 Ala. 471, 39 South. 814.

It is insisted by counsel for appellant that this law is invalid under the authority of Mitchell v. State, supra, and Town of Elba v. Rhodes, 142 Ala. 689, 38 South. 807. We think the act in question free from the vice pointed oht by said authorities as contained in the acts therein construed. This act delegates the authority to the municipality to operate and maintain the dispensary for the town and with corporate funds, gives the town the authority to elect the commissioners every four years, provides that the business shall be conducted by the intendant and aldermen, through a dispenser and the commissioners, requires daily reports to be made to the town treasurer, and appropriates the profits arising from the business to the town, for the schools and such other objects and purposes as may be designated by the town. Nor do we construe the act as conferring any legislative authority upon the town. It is true the act establishes prohibition, unless the town opens a dispensary; but its failure to open such dispensary does not amount to legislation on the part of the town. The act makes it unlawful to sell liquors in said town, except by a dispensary; and this is legislation by the Legislature, and no delegation to the town. All authority given the town is simply to avail itself of the exception made; otherwise, prohibition should prevail, under the act of the Legislature. Clearly the Legislature would have the right to prohibit the sale of liquors, except through an authorized dispensary; and the fact that the opening of the dispensary is not made mandatory in no sense gives the municipality the authority to legislate, nor does it legislate by failing to open said dispensary. Moreover, there is nothing in the act authorizing the town to discontinue at will; but, if there was, we think this option can be delegated to a municipality, the exercise of which would in no sense be legislation on its part.

The judge of the city court did not err in denying to issue the rule nisi.

Affirmed.

Tyson, C. J., and Denson and McClellan, JJ., concur.