Opinion
6 Div. 560.
October 31, 1933.
Petition of John Harduvel for writ of prohibition to Honorables Harrington P. Heflin, J. Russell McElroy, and John P. McCoy, as judges of the circuit court, Tenth judicial circuit, presiding over the criminal division.
Demurrer sustained; writ denied.
The petition alleges that petitioner was convicted in the recorder's court of the city of Birmingham on a charge of violating the prohibition law of said city; that the facts upon which said conviction was based were that petitioner had in his possession a quantity of malt or cereal beverage, commonly known as 3.2 beer; that petitioner appealed from the judgment of conviction in the recorder's court to the circuit court of Jefferson county, where his case is now pending, and said circuit court is proceeding with said case and will try and determine the same unless prohibited; that under the laws of the city of Birmingham and of the state of Alabama said circuit court has no jurisdiction in said case, and a judgment of conviction of the petitioner would be wholly void as said court is without jurisdiction.
It is further alleged that section 5362 of laws and ordinances of the city of Birmingham defines prohibited liquors and beverages; that section 5363 makes it unlawful to possess, etc., such prohibited liquors; and that said sections of the laws of the city of Birmingham are exact copies of sections 4615 and 4621 of the Code of Alabama of 1923, except that the former apply only to the city of Birmingham and the police jurisdiction thereof.
It is further alleged that the Legislature of Alabama, in extra session of 1932, passed an act entitled, "An Act to regulate the manufacture for sale, the transportation, sale and possession of cereal beverages, in which hops, malt, or other light ingredients are used, containing not more than one-half of one per cent alcohol." Gen. Acts, Ex. Sess. 1932, p. 56. That said city and state laws prohibiting the manufacture, sale, and possession of beer are in conflict with section 4 of said act of 1932, viz., "That all laws and parts of laws in conflict with any part of this Act be and the same are hereby expressly repealed," and have been repealed since the passage of said act of 1932. It is prayed that respondents be prohibited from hearing and determining or disposing of said cause.
Respondents demurred to the petition on the ground that the act of the Extra Session of the Legislature of 1932 is not in conflict with the mentioned laws of the city and of the state dealing with malt or cereal beverages of an alcoholic content of more than one-half of one per cent., and in consequence said laws are not repealed in so far as such laws relate to beer of an alcoholic content greater than one-half of one per cent.
J. G. Adams, Jr., of Birmingham, and Livingston Livingston, of Tuscaloosa, for petitioner.
A conflict exists between two laws or acts where one grants a permit or license to do an act which is forbidden or prohibited by the other or conflicting law. 2 Words and Phrases, Third Series, page 320; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519. The repealing clause of a statute does not have to designate or refer to any particular law; if it be in conflict, it is repealed thereby. Nettles v. Carson, 77 Okl. 219, 187 P. 799; 25 R. C. L. 912. The word "law," as used in the repealing law, includes municipal ordinances. Dowling v. City of Troy, 1 Ala. App. 508, 56 So. 116; 25 R. C. L. 762. "All laws," as used in said clause, refers to every law. 1 Words and Phrases, First Series, 312, 323; Tucker v. McLendon, 210 Ala. 562, 98 So. 797. City ordinances inconsistent with state laws are invalid. Const. 1901, § 89; Williamson v. City of Anniston, 215 Ala. 532, 112 So. 109. "Parts of laws," as used in the repealing clause, does not mean fractional parts or a mere fragment of a part, but a whole unit or section of the law in question. City of Cairo v. Bross. 9 Ill. App. 406. In interpreting the meaning of an expressed repealing clause in an act, the court will be guided by the language of the act, and not what the Legislature may have intended. Maxwell v. State, 89 Ala. 150, 7 So. 824; Tucker v. McLendon, supra; May v. Head, 210 Ala. 112, 96 So. 869; 25 R. C. L. 962; Ex parte Bozeman, 183 Ala. 91, 63 So. 201; State v. Praetorians, 226 Ala. 259, 146 So. 411.
Ralph E. Parker, of Birmingham, for respondents.
Brief did not reach the Reporter.
By the petition filed and now under consideration, we are called upon to decide whether the product known and called 3.2 beer can be legally sold under the existing statutes and city ordinances predicated thereon.
By consent of respective parties hereto, and by their joint request, all questions of procedure and other technical questions are to be pretermitted, and the sole question, above stated, be decided upon its merits under the law as it now exists.
From this viewpoint, this court, sitting en banc, has given careful and attentive consideration to the points of decision involved, and we have reached the conclusion that the demurrers to the petition for writ of prohibition are in point and well taken, and said demurrers are sustained.
The petition and demurrers thereto clearly raise the question above stated. There appears no good reason why we should indulge in an extended discussion.
Demurrer sustained; writ denied.