Opinion
February 7, 1905.
APPEAL from the County Court of Cleburne.
H. D. McCARTY and H. D. MERRILL, for appellant, cited. — Code, § 2040; Mayor and Aldermen v. Rumsey, 63 Ala. 352; Murphree v. Mobile, 104 Ala. 532; s. c., 108 Ala. 663; Ellis v. Pratt City, 111 Ala, 629.
BLACKWELL AGEE, contra, cited. — Shepherd v. Dowling, 127 Ala. 1; Aldermen v. Rumsey, supra; Ellis v. Pratt City, supra; Meriwether v. Garrett, 102 U. S. 472; 42 L. R. A. 181; 20 A. E. Enc. Law, 1190.
Tried before the Hon. T. J. BURTON.
The facts in this case are fully set out, in the opinion.
The Equitable Loan Security Company recovered a judgment against the defendant, Town of Edwardsville, a municipal corporation, in the county court of Cleburne county, on the 18th day of October, 1900, in the sum of eight hundred, three and 43/100 dollars.
On the 1st day of April, 1902, an execution was issued, on the judgment, and was, on the 31st day of July, 1902, levied on a. stock of spirituous and malt liquors, as the property of the Town of Edwardsville.
On August 1st, 1902, the defendant filed a motion to vacate the levy made under the execution, upon the ground that the property levied on was property used by the defendant in its corporate capacity for municipal purposes, in that said property was used in the conduct of a dispensary under an art of the legislature, approved February 18th". 1899). The act referred to is entitled, "An Act to authorize municipal and other subdivisions of the State to buy and sell spirituous, vinous or malt liquors, and to further regulate or prohibit the sale of such liquors," and is found in the general acts of the legislature, session 1898-99, at page 108.
It is alleged in the motion that the dispensary was conducted and carried on at a profit for the purpose of raising revenue, and the revenue arising" from it was used exclusively for municipal purposes, and that the revenue so derived was necessary to pay the ordinary municipal expenses of the defendant.
The plaintiff moved to strike the motion to vacate the levy and also demurred to it, the motion and demurrer were overruled, and the court rendered judgment in favor of the defendant, vacating the levy.
The question now presented for our determination is whether a stock of spirituous, vinous and malt liquors, owned and used by a municipality as stock in trade in conducting and carrying on a dispensary, is property used for municipal purposes in such sense, as will, under § 2040 of the Code of 1896, exempt it from levy and sale under execution issued on a judgment obtained against the municipality.
"Municipal corporations are created for public, governmental and political purposes and it is a corollary of this proposition, that all property, of whatever nature, held by them in trust for carrying out such purposes, should be exempt from seizure and sale under execution." Tiedman on Municipal Corporations, § 375, p. 765.
The doctrine as laid down by Mr. Dillon has been approved by this Court, in the case of Mayor and Aldermen of Birmingham v. [ILLEGIBLE TEXT] Co., 03 Ala. 352. Judge Stone, in the case cited, uses this language, "We do not hesitate to declare, that city property, owned or used by the corporation for public purposes, such as public buildings, public markets, hospitals, cemeteries, enginehouses, fire engines and their apparatus, and other property, real or persona.], of kindred utility, cannot be taken in execution for debts of the city. But, if the city owns private property, not useful or used for corporate purposes, such property may be seized and sold under final process, precisely as similar property of individuals is seized and sold."
In the second edition of the Am. Eng. Eney. Law, on page 1190, the law is thus stated: "So the property of a municipal corporation which is essentially public in its nature and is held in trust for the public by the corporation, and is necessary for the exercise of its proper municipal functions, cannot be sold to satisfy the debts of the corporation. But the private property of a municipality, held for purposes of income or sale, unconnected with any governmental use or function, may be levied on and sold to satisfy a judgment rendered against the municipal corporation."
The act of the legislature above referred to, and under which the dispensary was established and conducted by the defendant in this case, has undergone judicial construction by this Court, and was upheld. — Sheppard v. Doucling, 127 Ala. 52.
In the case cited above, the Court held that, "A power conferred upon a corporation by an independent and original act, such as the power to buy and sell liquor conferred by this act, is a power conferred by its charter."
The dispensary act, referred to above and under which the defendant was operating the dispensary, provides, "That each incorporated town or city, in which the sale of liquor is not prohibited by law, shall have authority to conduct and carry on its corporate name, in its corporate capacity, and through its legislative body, the business of buying and selling spirituous, vinous and malt liquors, subject to the restrictions hereinafter mentioned." The act further provides that the municipality shall invest in said business a sum of money not less than three hundred nor more than twenty-five hundred dollars, for each dispensary it may carry on.
This Court held in the Sheppard Dowling case, supra, that it was entirely competent: for the General Assembly to authorize towns and counties to carry on the liquor traffic as an incident to the regulation of that traffic provided by this act. Under the provisions of the act, the defendant was not compelled or required to establish dispensary, but was given authority to do so. When, in compliance with the provisions of the act, it did establish a dispensary, it did so in its corporate name, in its corporate capacity, and through its legislative body, and in that name, that capacity and through that body only, could the dispensary he legitimately conducted.
We have seen that, when the municipality established a dispensary, it had the power, and it was made its duty, by the law under which the dispensary was established, to provide the dispensary with a stock of liquors. A dispensary could not, he conducted and carried on without the liquors, and when the liquors were purchased they could not have been held by the municipality for any other legitimate purpose than for the carrying on of a dispensary.
That the regulation of the sale of intoxicating liquors is within the police power of the State cannot be doubted, for it is established, if not literally by all the cases where the subject has been considered, certainly by an overwhelming array of authority, and the question has been put at rest by this Court.
Further, "It belongs to the legislative department in the exercise of the police powers of the State, to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety, subject to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution."
We think it is well settled that the legislature in dealing with the sale of intoxicating liquors is fulfilling a public duty; that it is striving to promote the health, safety and morals of the community; that, in the establishment of the dispensary, it constitutes a public object, use, or purpose, in the promotion of which public money may be lawfully invested and expended.
When the legislature determined that the traffic should be regulated by the establishment of dispensaries, and conferred on municipalities the charter power to carry on dispensaries for the sale of intoxicating liquors, and the dispensary was established by the town, we think the town in carrying on the dispensary would be in the exercise of a governmental function, the primary purpose of which should be, and would be, to so regulate the sale and use of ardent spirits in the community as to promote the health, safety, and morals of its people. And certainly the public would be interested in an instrumentality that in its operation would tend to the accomplishment of such an object. — Mitchell v. Slate, 134 Ala., on page 408.
We have seen that the liquors supplied by the town to the dispensary were necessary for the carrying on of the dispensary, and that the dispensary was a public or municipal concern, a governmental function; it would seem to follow therefore, that the stock of liquors would be held in trust by the municipality for use in which the public is concerned, its welfare promoted and the functions of government discharged.
It seems to us, that, the power having been legitimately conferred upon the municipality to carry on the dispensary, and that it is an instrumentality in the operation of which the public is interested, to allow the property necessary in carrying on the dispensary to be subjected to levy and sale, might in many instances [ILLEGIBLE TEXT] the purpose of the legislature in conferring the power on municipalities to establish and carry on dispensaries, and would deprive the public of the beneficent results which were contemplated would flow from the operation of dispensaries.
It is strenuously insisted in this case, by appellant, that the dispensary was run for profit and a source of revenue to the town, and that therefore it is not exempt from levy and sale, and that the motion avers that the dispensary was run at a profit and that it was put in the treasury and constituted a part of the municipal revenues.
We must not. forget the purpose for which the dispensary was established. The operation of a dispensary may result in profit or loss according as it is discreetly or unwisely managed. It seems that the legislature contemplated that there might be profits, or losses, as the dispenser is required by the art to make reports to the legislative body of all profits and losses.
If in carrying on the dispensary there arose profits from the sale of the liquors, this would be a mere incident of the business engaged in, or a natural result from good business management. But it cannot be said to follow, that profits would withdraw from the property its true character and convert if into property held for purposes of income or sale disconnected from any corporate use or function.
Our conclusion is that the property levied on was used for municipal purposes, within the meaning of § 2040 of the Code, and that there is no error in the ruling of the court below prejudicial to the plaintiff. The county court properly granted the motion to vacate the levy.
The judgment of the county court is affirmed.
Affirmed.
McCLELLAN, C. J., [ILLEGIBLE TEXT] and DOWDELL, J.J., concurring.