Corbett v. Duncan

63 Miss. 84 | Miss. | 1885

Cooper, C. J.,

delivered the opinion of the court.

Section 1103 of the Code of 1880 authorizes one or more legal voters of any town or city in which license'is sought to be obtained to retail vinous or spirituous liquors to interpose his or their objections to the grant of such license, by exhibiting a counter petition to the proper authorities. It is not necessary that counter petitions shall be signed by a majority of the legal voters of such towns. Where it is sought to prevent the issuance of a license to any party whatever, during a period of twelve months after the presentation of a petition, it is then necessary to have a majority of the legal voters join in the counter petition; but where a particular application only is sought to be defeated, a single voter may intervene, and, intervening, he may insist upon any valid objection to the grant of the license. Such counter petitions of less than a majority can have no legal effect as such, unless it be signed by voters who have signed the petition for license, in which event the names so appearing upon both the petition and counter petition are to be counted against the petitioner; but it is a convenient and proper method of calling the attention of the authorities to any defect appearing upon the face of the original petition, or of suggesting any fact by reason of which the license should not be granted. There is no appeal provided by statute from the decision of the corporate authorities, and since there is no other remedy, and since their action is quasi judicial, certiorari maybe awarded to correct all errors of law apparent on the face of the record. Allen v. Levee Commissioners, 57 Miss. 163; 2 Wait’s Actions and Defenses 134.

It is unnecessary to consider all of the various objections taken to the action of the corporate authorities since we are enabled to satisfactorily dispose of the case upon the insufficiency of the petition upon which the license was sought. The code, § 1103, declares that no license shall be granted to any person to retail spirituous or vinous liquor in less quantities than one gallon, “ unless the applicant shall first produce a petition for the issuance of such license, and recommending the said applicant to be of good reputation, and a sober and suitable person to receive such license.” The petition by which the appellant supported his application represented him to be a sober and suitable person to receive the license, but it does not contain any representation that he is a person of good rejmtation, as the statute requires. It may be that these petitioners believed that a man who was sober and suitable to retail liquor was necessarily a man of good reputation, and therefore they omitted to add the statutory certificate required as surplusage; but, on the other hand, it may be tliat they were unwilling to certify that the applicant was of good reputation in the community, but was, nevertheless, in their opinion, a suitable man to receive a license to retail. However this may be, it is manifest that the petition wholly fails to conform to a positive requirement of the statute in a matter which we are not justified in treating as immaterial.

The petition was insufficient, and the judgment is affirmed.