The Montgomery advertiser., 1902-06-29
ACT ESTABLISHING IT DEcLAR-
 ED TO BE ILLEGAL.
Decision Rendered Upon Two Cases Appealed from Lauderdale coun- ty-wherein the Dispensary
 Act is Defective.

terday dealt a knockout blow to the whiskey dispensary at Florence. handing down an opinion by Mir. Chief Justice Mcclellan, declaring the act establishing the aispensary to be uncc institutional. and at the same time entering Judgment dis charging J. B. Powers cf Florence rom further prosecution for violations or city ofdinance of Florence regulating the dispensary. This ordinance was declared invalid.
 The Florence dispensary was establish cd July 1, 1901, under an act of the Legis- lature. approved December 10. 1900. The act named five dispensary commissioners g., whose terms were to be respectively from one to five years, their successors to De elected by the Board of Aldermen or Florence and the Commissioners Court of Lauderdale County sitting Jointly. the Mayor of Florence acting as chairman or the joint meeting.
 The five dispensary commissioners were empowered by the act to elect one of their m smbers chairman aad another secretary and treasurer. They were authorized to borrow money or to pledge the credit Of the dispensary. The profits of the dis pensary were to go to the city of Flor ence, and the county of Lauderdale. in such ratio as was at that time derived from whiskey license. The dispensary commissioners were to be paid according to the business done by the dispensary
 The decision rendered yesterday by the Supreme Court was Upon two cases ap- pealed from the Circuit Court of Lauder dale County. One was the case or J; J Mitchell Probate Judge of Lauderdaie County, against the State of Alabama eS rel. Florence dispensary; the other was the case of J. B. Powers against the Mayor and Aldermen of Florence Ine latter case grew out of the prosecution of Powers by the city of Florence for a violation of an ordinance regulating the dispepsary.
 The opinion of Mir Chief Justice Me Clellan begin by reciting the contention in the cases. He says the main question presented in these two cases was the constitutionality of an act approved De- cember 10, 1900, entitled An act to estao- fish. maintain, regulate and make efn- cient a dispensary in Florence and branch thereof in East Florence. and to provide for the issuance of liquor licenses in Lauderdale County until this act goes into effect" A
 It was contended that the act contain ed two subjects in the caption, and in the body and was consequently in viola tion of the Constitution.
 The Opinion disposes of this contention by declaring that 1t was not well taken. The provision of the act relating to the issuance of licenses in Lauderdale Coun- ty, the opinion declares, are 'cognate. germane and complementary to its pro- visions for the establishment and carry ing on of the dispensary"
 While the act vas approved December 10, 1900, the law was not to become eff fective until July 1 of the following year and 1t was, therefore. necessary, says the opinion, to make provision for the issu- ance of whskey licenses as there was no statute authorizing the Probate Judge to issue licenses for the time intervening between the close of the year 1900 and the beginning of operation of the dispensary on July 1, 1901.
 Chief Justice Mcclellan then takes up the contention as to constitutionality of the act. He says five persons were named by the act as a corporate body to inaugu- rate and carry on the dispensary, and if they see fit, to suspend or discontinue the dispensary It was urged that the act confers police powers upon the corpora ton, and that the liquor traffic of Lauder dale County is committed by the act to a private corporation to the exclusion from that busiress of all other private corpo- rations and private persons.
 The opinion says the corporation called
 
 of certain individuals whose only connec- ton with any recognized governmental agency or power is that these individuals are named by the State and their success sors are to be appointed by the city and county legislative bodies acting jointly, and that they are required to pay the net proceeds of the business to the city and county.
 The act creates a corporation" says the opinion, "and breathes into 1t standing in the courts, a capacity to borrow money and to incur debts, and launches 1t upon @ precarious mercantile venture without cent of money to in- augurate tfe business or a cents worth of property to form basis of credit.
 Chief Justice Mcclellan then calls at tcntion to the pecuniary interest which must be felt by the dispensary commis- sioners who are to be paid according to the success of the business, and con tiBues:
 All of this is out of harmony with the theory and motive of dispensary legisla- ton. So, too. are the further provisions of this act which virtually leave the es- tabllshment of the dispensary fin the first instance to the discretion of these com missiobers."'
 Continuing. the opinion says:
 Wherever legislation of this character, that is for the committing of this traffic to dispensaries has been had-ln this State or out of 1t. as far as we are ad- vised--it has proceeded on the theory that the public alone should be interested in the business; that the State, County or municipality, as the case might be- should engage in the business, should supply the funds to inaugurate 1t and carry it on; should, with public funds. pay the dispensers or other necessary agents so that they would be wholly dis interested and without incentive to ex- ploit the traffic or to increase it's volume; and should, while on the one hand re- ceiving whatever profits might incidental ly result from thus on principles of pub lie policy controlling and carrying on a traffic requiring police regulation and. in sense. repression, on the other incur and bear the losses which might result from the business. And 1t is. to say 'the least, largely upon this theory that the courts have upheld such legislation. Can legislation not, proceeding upon this the ory, be upheld? Can an act which de- parts from this theory so radically as the act under consideration be sustained at all? The exigencies of the present appeal do not require us to respond to these queries.
 The opinion then cites illustrations by which the act could be grossly abused and continuing says:
 This act has infirmities of 9 more glaring and certainly emasculating na- ture than we have been discussing To our minds 1t palpably involves an un- warrapted and unconstitutional delega- ton of legislative power and incidentally