[Mitchell, Judge, etc. v. State ex rel. Florence Dispensary; and Powers v. Mayor and Aldermen of the City of Florence.]

sary in Florence, and a branch thereof in that part of Florence known as East Florence, Lauderdale county, Alabama. And to provide for the issuance of liquor licenses in Lauderdale county until this act goes into effect," (Acts of 1900-1901, p. 288); that on July 1, 1901, the commissioners named in said act having previously met and organized and elected a manager and branch manager pursuant to the terms of the said act, established in said city a dispensary and branch thereof as provided in said act; that upon the establishment of said dispensary the petitioner applied to Hon. J. J. Mitchell, judge of probate of Lauderdale county, for a State liquor license for each place of business as provided by section 18 of said act, for a period of six months; that at the time of the passage and approval of the act creating the petitioner, the license required by law for retail liquor dealers was $275 per annum, or $137.50 from July 1 to January 1, for each place of business, which sum the petitioner tendered and offered to pay said Mitchell as judge of probate; but that said judge was of the opinion that the petitioner was not entitled to receive the license pursuant to the terms of said special act under which the petitioner was incorporated, and declined and refused to accept the sum of $275 in payment of this license for the period of six nonths; that said judge was of the opinion that the annual license to be paid to the State by the petitioner was $1,925 to be paid in quarterly installments; that the petitioner paid to the probate judge the sum of $481.25, it being one fourth of the annual demand for an annual license, and thereupon said judge issued to the petitioner the said license for three months; that the petitioner is advised, informed and believes and so avers that it has paid to the probate judge the full amount of the license required by law for the period of six months and more, and is, therefore, entitled to receive from said probate judge a State license or a receipt for the license tax so paid for the period from July 1, 1901, to December 31, 1901.

The prayer of the petition was for a writ of mandamus

[Mitchell, Judge, etc. v. State ex rel. Florence Dispensary; and Powers v. Mayor and Aldermen of the City of Florence.]

directed to the said Hon. J. J. Mitchell, judge of the probate court of Lauderdale county, commanding him to issue to the petitioner a license or receipt for the period from July 1, to December 31, 1991.

To this petition the respondent demurred upon the following grounds: 1. That the act under which the petitioner claims to have been organized is unconstitutional and void in that it is in violaton of section 2 of article IV of the Constitution of Alabaina of 1875. 2. That said act does not seek to confer authority on the City of Florence in its corporate name or capacity or through its legislative body to carry on the business of buying, selling spirituous, vinous or malt liquors, but seeks to confer such special privilege and authority upon petitioner, a corporation, which is to be controlled by certain individuals. This demurrer was overruled, and, thereupon, the respondent filed an answer in which he pleaded the unconstitutionality of the act under which the petitioner was incorporated, upon the same grounds upon which the demurrer was based.

Upon the hearing of the cause, the facts averred in the petition were substantially proved.

After the introduction of all the evidence, the court rendered judgment granting the relief prayed for in the petition and ordering the writ of mandamus to be issued to said J. J. Mitchell as judge of the probate court of Lauderdale county, commanding him to issue a license or receipt as prayed for in the petition.

From this judgment the respondent appeals, and assigns as error the overruling of the demurrer to the petition, and the rendition of said judgment.

In the case of Powers v. The Mayor and Aldermen of the City of Florence, a prosecution for selling, giving away or otherwise disposing of spirituous, vinous or malt liquors in a public place in the city of Florence against the peace and dignity of the State of Alabama, was commenced against the appellant, W. B. Powers, by a complaint or an affidavit sworn out before a justice of the peace.

On the trial before the justice of the peace, the defendant was found guilty as charged, and from this judg

[Mitchell, Judge, etc. v. State ex rel. Florence Dispensary; and Powers v. Mayor and Aldermen of the City of Florence.]

ment of conviction an appeal was taken to the circuit court. In the circuit court the Mayor and Aldermen of Florence filed a statement or declaration which, as amended, was in words and figures as follows: "The Mayor and Aldermen of the City of Florence charge that within twelve months before the commencement of these proceeding, W. B. Powers did within the city of Florence sell, give away or otherwise dispose of spirituous, vinous or malt liquors or intoxicating beverages at a public place and subsequent to the first day of July 1901, against the peace and dignity of the city and contrary to its ordinances in such cases made and provided in words and figures as follows: An ordinance. Whereas the general assembly of Alabama has passed an act providing for a dispensary in the city of Florence to go into effect on the 1st day of July, 1901, and whereas it is the intention and duty of this board to restrict the sale and distribution of liquors in this city in conformity to the provisions of said act; therefore be it ordained by the Mayor and Aldermen of the city of Florence, that on and after the 1st day of July, 1901, it shall be unlawful for anyone within the corporate limits or police jurisdiction of this city, except as provided in said dispensary act, to sell, give away or otherwise dispose of any spirituous, vinous or malt liquors or intoxicating beverages at or in any hotel, restaurant, eating house or any other public place, and for every violation of this ordinance, the party shall be fined not less than one hundred dollars and shall also be sentenced to hard labor for the city for not less than thirty days. Be it further resolved that the police force are directed to see that the above law is upheld in spirit and letter. Adopted June 24, 1901." To this declaration the defendant demurred upon the following grounds: 1. “That said statement charges no offense against the municipal laws or ordinances of the said city of Florence." 2. "That any ordinance of the said city of Fiorence by which the acts of the defendant complained of or charged are made unlawful or prohibited, is unconstitutional, null and void." 3. "That any act, or statute of the leg

[Mitchell, Judge, etc. v: State ex rel. Florence Dispensary; and Powers v. Mayor and Aldermen of the City of Florence.]

islature of the State of Alabama by or under which it is sought or attempted to adopt any ordinance of the city of Florence, prohibiting or making unlawful the acts of the defendant set forth or complained of in said statement is unconstitutional, null and void." This demurrer was overruled, and to this ruling the defendant duly excepted.

Upon the hearing of the cause, there was evidence introduced tending to show that the defendant did sell liquor in the town of Florence, and the ordinance which was set forth in the declaration was proved and introduced in evidence.

Upon the introduction of all the evidence, the court at the request of the defendant, gave to the jury the following written charge: "If the jury believe the evidence beyond a reasonable doubt, they will find the defendant guilty." The defendant duly excepted to the giving of this charge, and also excepted to the court's refusal to give the following charge requested by him: 1. "If the jury believe the evidence, they should find for the defendant."

There were verdict and judgment in favor of the Mayor and Aldermen of Florence, assessing a fine of one hundred dollars. From this judgment the defendart appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

CHAS. G. BROWN, Attorney-General, for Mitchell, Judge, etc.

R. T. SIMPSON and JOHN T. ASHCRAFT, for the State er rel. Florence Dispensary.-We maintain that the special act is not unconstitutional. It does not violate Section 2, of article IV, of the Constitution.

"The evil intended to correct" by this constitutional provision was the "blending in one and the same statute of such things as were diverse in their nature, and were connected only to combine in favor all the advocates of each, thus often securing the passage of several measures, no one of which could have succeeded on its own merits."-Walker v. The State, 49 Ala. 330-1; Cooley on Const'l Lim. 143; Mobile Transportation Co. v. City of

[Mitchell, Judge, etc. v. State ex rel. Florence Dispensary, and Powers v. Mayor and Aldermen of the City of Florence.]

Mobile, 128 Ala. 335; State v. McCary, 128 Ala. 39. "Whenever there is а natural and proper relation of the provisions embodied in in the statute" to each other, the constitution is not violated.— Ex parte Hickey, 52 Ala. 230; Walker v. Griffith, 60 Ala. 361-8; Ballentyne' v. Wickersham, 75 Ala. 533-9; City Council of Montgomery v. Nat'l B. & L. Assn., 108 Ala. 336-9; Sheppard v. Dowling, 127 Ala. 11.

THOS. R. ROULHAC and ALEX. E. WALKER, for Powers. The police power of the government, in the distribution of the governmental functions among the different departments of the sovereign state, is vested in its legislative department.-Constitution of Ala. 1875, Art. IV., Sec. 1; McDonald v. The State, 81 Ala. 282; N. C. & St. L. R. Co. v. The State, 83 Ala. 76; N. C. & St. L. R. Co. v. The State, 128 U. S. 96.

The control and regulation of the liquor traffic, or even its absolute prohibition, is embraced within the police power of the State, and may be exercised by the legislature in its discretion.-Dorman v. The State, 34 Ala. 216; In re Jones, 78 Ala. 419; Van Hook v. Selma, 70 Ala. 361; Ex parte Byrd, 84 Ala. 17; Ex parte Sikes, 102 Ala. 173; Sheppard v. Dowling, 127 Ala. 11 (62).

Not only may the legislature exercise this power of regulation or control or prohibition of this traffic, but it may delegate the exercise and execution of this power to counties and municipal corporations; because each of these is but a branch, agency or subordinate department of the State for governmental purposes. They are integral parts of the government.-Sheppard v. Dowling, 127 Ala. 11; Dunn v. Wilcox County, 85 Ala. 144; Yuille v. Mayor, etc., 3 Ala. 137; Ex parte City Council, 64 Ala. 463; Van Hook v. Selma, 70 Ala. 361; Ex parte Byrd, 84 Ala. 17.

But having this police power and the right to exercise it through, or to delegate it to, other agencies of the government, not even the legislature can go further than this. It cannot divest or deprive itself of the police power, which has been entrusted to it, in the formation of the government; and it cannot exercise it, nor, of