Summary
In Willis v. State ex rel. Flynt Oil Company, Inc., 290 Ala. 227, 275 So.2d 657 (1973), the Town of Morris prohibited the sale of alcoholic beverages within its limits by an ordinance providing penalties for its violation of a $100 fine, jail, or hard labor not to exceed six months.
Summary of this case from Lawrence v. GayleOpinion
SC 112.
February 22, 1973. Rehearing Denied April 19, 1973.
Appeal from the Circuit Court, Jefferson County, Ingram Beasley, J.
Rogers, Howard, Redden Mills, Birmingham, for appellants.
A mandamus petition must show a specific legal right in the petitioner to have some act performed and must show that the defendant is under an obligation and has the authority to perform the act. In re All American Life Cas. Co. v. Moore, 286 Ala. 492, 242 So.2d 661; Shirey v. City Bd. of Education of Fort Payne, 266 Ala. 185, 94 So.2d 758; State v. Cunninghame, 216 Ala. 423, 113 So. 309; Lewis v. Jenkins, 215 Ala. 680, 112 So. 205. No person has an inherent right to engage in the business of selling intoxicating beverages. State v. Murphy, 237 Ala. 332, 186 So. 487; Cooke v. Loper, 151 Ala. 546, 44 So. 78. A municipal ordinance is not inconsistent with state law so long as it does not make lawful that which state law makes unlawful. Smith v. Town of Notasulga, 257 Ala. 382, 59 So.2d 674; City of Birmingham v. West, 236 Ala. 434, 183 So. 421. A municipality has the power to enact an ordinance prohibiting the sale of intoxicating beverages. Code of Alabama 1940, Recompiled 1958, Title 37, Section 455, Section 487; Ex parte Davis, 200 Ala. 436, 76 So. 368.
James M. Fullan, Jr., Birmingham, for appellee.
Flynt Oil Company (Flynt) does business as "Posey's Kwik Stop" in Morris, Alabama. Under one roof, with separate entrances, are a gasoline service station, coin-operated washing machine, and cafe facilities. On June 6, 1972, Flynt was issued a retail beer license by the State of Alabama, authorizing sale for off-premise consumption.
As of the relevant dates herein, there was in effect an ordinance of the Town of Morris prohibiting sale of alcoholic beverages, on penalty of $100 fine, jail, or "hard labor not to exceed six (6) months." Consistent with this ordinance, and notwithstanding Flynt's possession of a state license, the Town denied him a municipal license on June 19, 1972.
Flynt petitioned in Circuit Court for a writ of mandamus to compel the Town and its Mayor, T. J. Willis, to issue him a municipal beer license. Following a hearing, relief was granted. Mayor Willis and the Town appeal from the decree of the Circuit Court.
On January 30, 1973, Flynt moved for summary affirmance under Rule 17 of this Court, contending that the appeal had been interposed merely for delay.
Initially, we wish it clear that it is not our function as a court of law to rule on the benefits or drawbacks of alcohol as a beverage for human consumption, or whether prohibition thereof is sound or unsound public policy. That decision is in the province of the competent legislative authorities, and has already been made by them. Given the existing state of the law, a municipality may not prohibit sale of beer where such sale has been licensed by the State of Alabama. Campbell v. City of Hueytown, Ala., 268 So.2d 3 (1972); Reams v. State ex rel. Clokey, 45 Ala. App. 614, 234 So.2d 893 (1970); State ex rel. Morrow v. Santa Cruz, 252 Ala. 130, 39 So.2d 786 (1949).
As we said in Campbell, supra:
"This question is whether or not a municipality may, by zoning or otherwise, prohibit the sale of beer where such sale has been licensed by the State
"We think that it cannot." 289 Ala. 391, 268 So.2d at 5.
Appellant, in his brief, admits that the relevant authorities are adverse to his contentions, but urges us to overrule these authorities. We have considered his position, but do not agree that such authorities should be overruled.
We are prone to treat a Rule 17 motion for summary affirmance with caution. However, the old maxim "justice delayed is justice denied" remains compelling. Thus, when careful examination of the record reveals that no substantial issue of law has been raised by an appeal, the motion for summary affirmance will be granted. The case before us presents such a situation.
The decree of the Circuit Court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.