The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1909-07-04
JUSTICES DISSENT ON
VALIDITY or LOCKERS
JuszTuRs McCrxILAN AND DlNsoN n1ND1R LxNoEHY
OPINION UNFOLDING DxgeEM1R o1DNANun; aAyn
MAJORITY ACTION LIMITS PoLIm PowM

I invasavs OF property rtghts and, be-
cause the limit In this direction. Of the
police power 10 that the storage CT dc.
posit of the liquors or beverages de-
scribsd 10 that Il 10 90 stored or
depositod with the intent TO make IL
legal disposition thereof. To neither
Of these conclusions can the writer give
his approval. In my opinion both are
unsound and to sanction them II TO Inn
pair and limit, without SUFFICIENT reason.
| the police power Of the State itself. In
GLIDING OF course that OF the municip-
alities created ana empowered By
the State. There can be no doubting
nicipaiity In this state to ordafn. un-s
der the power TO provide for the
safety, preserve the health, promote
the prosperity, improve the morals, or
der. comfort and convenience Of tho
Inhabitants (Code. Sec. 1261). to the
end that the prohibitory LIQUOR laws
Of force in this State may be rendered
more effective In such municipality.
Accordingly, the question on the test.
ing OF this ordinance 10 whether the
stated general and legitimate power
has been exceeded by the ordinance un-
| der consideration. In short, the reason.
abieness val non of ordinsnce is the
| inquiry. Where that 10 the mat
ter for judicial decision. the general
power In the premises being possessed
by the municipality. the presumption
| IL that the ordinance 10 reasonable, un.
less the contrary appears from the en-
actment or Is properly shown.-Van
Hook vs. Selma, 10 Ala. 3e1, se5; Nc
Quilts Munic. Ord. Sec. ats. Sec. 186,
and authorities In notes thereto. In the
construction of ordinances the courts
will give them reasonable construc-
tion, and viii incline to sustain rather
than to overthrow them, and especial.
~ IL this so where the questions d..
ponds upon their being reasonable or
otherwise. Thus, II by ONE construc.
tion an ordinance will be valid. and By
another void. the courts will. IL pos
sible. adopt the former."--1 Dillon's
Munc. Corp. Sec. 42o; Orme vs.. NTus-
cumbia. $50 Ala. $40; Mcouillin, Supra.
Does Not Prohibit.
What does this ordinance prohibit
To me the response to this question
| ance. Al reading of 1t, obviating any
necessity for argument or calculation.
demonstrates. In my opinion. that the
whole purpose and effect thereof was
and IL to inhibit the storage, deposit
or having of the defined liquors, 'in or
ut any place where any drinks or bev-
erages ara sold or kept for safe.s The
title OF the ordinance, to which refer
ence may be had for purposes Of inter-
probation, reinforcee and emphasizes
the correctness of this construction.
How Il can be drawn from this ordin-
ance that an attempt 10 thereby made
to penaiize the possession. storage or
deposit Of the condemned liquors at
other than places whereat or wherein
drinks or beverages are sold or kept
for sale, I am entirely unable to see.
How IL can be sedd under this ordin-
ance that q man is prohibited from
having the defined liquors in his home
a., .ff e - ~ 4r L.
not a line or o word in the ordinance.
including the title. that tends to that
meaning or effect. The first section does
employ the phrase. cor have therein"
but II 10 obvious that therein. as used,
is word Of reference and refers to
shall not be stored, deposited or pos
| sessed {had). This. II appears to me.
IL the meaning and effect to be read
from the face of the ordinance, but
even. IL the meaning was equivocal,
| the application Of the approved ruleGI
| of favor and construction before stated
| compel the resolution OF the matter
/ to q construction that would sustain
| rather than overthrow the ordinance
Ordinance Permissible.
We have. then. an ordinance forbid
ding the storage, deposit or having. in
or at places where drinks or beverages
are sold or are kept for sale. the
this a permissible exercise Of the
police power? I feel no hesitancy In
affirming that It is. and in so con-
cluding I am not unmindful Of the
weight and Difference due and attach
Ing to be poposing view taken by my
associates.
Taking authority first: An sxhaus-
tive investigation OF text books and
reported decisions OF other jurisdic-
lions has been rewarded by de-
cision from the Supreme Court Of New
Hampshire. Wig: State VS.. Clark, rs
N. H. 176. 1t IL in immediate point
and was decide In 1854 So the propo-
sition IL not new. This case Is also
reported in Gil Am Dec. Gil. though
the facts and briefs of counsel are
not there as fully set out as in the
original report of the case.
The New Hampshire Court had, In
the Clark case, to determine the validi- |
~ vel non Of the following ordinance:
No Intoxicating liquors shall be used
or kept in any refreshment saloon or |
restaurant within the city. for any |
against the validity Of the ordinance |
was that set forth in the majority |
opinion in this case. It did not pre- |
valI with that court The opinion Is |
by Chief Justice Gilchr1st and, SO far |
as presently important. is as follows: |
Tho city ordinance prohibits the us- |
ing or keeping intoxicating liquors In |
any refreshment saloon or restaurant /
only. st does not prohibit the using or |
keeping elsewhere. but 1t selects
places Of q certain GLASS. and prohibits |
their use in such places. There is
nothing unreasonable in such an exer- |
else OF the judgment of the city |
authorities. The ordinance does not |