Brownrigg v. Town Council of Livingston

Brownrigg v. Town Council of Livingston. .Application for Writ of Habeas Corpus. 1. Municipal corporation; licensing and prohibiting retailing of spirituous liquors. — The power granted to a municipalny by its charter “to prohibit the sale in any quantity of malt, spirituous or vinous liquors within the corporate limits of said town by any person, without having secured a license therefor,” does not confer the power to prohibit the sale of malt, spirituous or vinous liquors; and, therefore, an ordinance passed by the town council of said municipality, which prohibits the sale of spirituous, vinous or malt liquors within the corporate limits thereof, is without the power conferred by the charter and void. Heard before tlie Hon. S. H. Sprott. Tbe appellant, Willis Brownrigg, was tried and convicted for tbe violation of an ordinance passed by tbe Town Council of Livingston in Sumter county, Alabama. This ordinance is copied in the opinion, as is also tbe provisions of tbe charter of said town. After bis conviction, tlie said Willis Brownrigg filed bis pétition addressed to Hon. Samuel H. Sprott, as judge of tbe Sixth Judicial Circuit, asking for tbe issuance of a writ of habeas corpus, and that be be discharged. Tbis petition was denied, and from a judgment refusing to discharge tbe petitioner, tbe appeal is prosecuted here, where sueb judgment is assigned as error. W. K. Smith, for appellant, cited Ex parte Mayor etc-.. 90 Ala. old; Hurley v. State, 95 Ala. 19;.Ex parte Reynolds, 87 Ala. 138; Wrif/ht O. State, 103 Ala. 95. Citas. G. Brown, Attorney-General, for tbe State. [MAJORITY — NOWELL, J.] NOWELL, J. The municipal ordinance under which the petitioner was tried and convicted, reads as • follows: Ordinance No. 78. “Be it ordained hy the Town Council of Livingston, that it shall be unlawful 'to sell any spirituous, vinous or malt liquors, or cordials, or alcoholic bitters, or beverages of any kind containing alcohol within the corporate limits of the town of Livingston, Alabama. And any person convicted of selling any of the above-named liquors, shall be fined not less than ten dollars.” Subdivision 11, section 8 of the charter of said municipalty reads as follows: “To tax and license billiard and bowling saloons upon such conditions as may be necessary and proper to regulate and control them effectually, and to prohibit the sale in any quantity of malt, spirituous or vinous liquors within the corporate limits of said town by any person without having secured such license.” It will be observed that the power or authority conferred by this section of the charter is to regulate the sale of spirituous, vinous and malt liquors by tax and license, and no power or authority is conferred to prohibit the sale except by such persons as fail to secure license. No provision was made by ordinance or otherwise by said municipality for the granting of a license. The ordinance in question was an absolute and unqualified prohibition upon the sale of spirituous, vinous or malt liquors. This was without the power and authority conferred by the charter, and it necessarily follows that the ordinance was a void enactment, and being void, no conviction can be sustained under it. The case of Ex parte Mayor and City Council of Anniston, 90 Ala. 516, fts an authority is conclusive of this case. The petitioner was entitled to his discharge on his petition for a writ of habeas corpus. The orcler of the circuit judge.will, therefore, be set aside, and order-will be here made discharging the petitioner.