136 Ala. 150 | Ala. | 1902
— This appeal is prosecuted from a judgment granting a Avrit of mandamus to compel the respondent to issue a retail liquor license to the relator as required by section 3520 of the Code. The first question presented upon the record is, Avhether the act of the respondent in refusing the license Avas a judicial and not a ministerial one. Confessedly if his act in refusing the license Avas judicial, the motion of respondent to quash Lie alternative writ should have been granted. And so, too, the demurrer to the'petition was Avell taken. For it is settled beyond controversy, by many decisions of this court, that mandamus is not the proper remedy to control judicial action or to direct a judicial officer hoAY to act or what conclusions to reach. 1 Mayfield’s Digest, p. 606, §§ 6 et seq. On the other hand, if it was ministerial, the court, by this process,
As to whether the act which the respondent was required to perform under section 3520 was judicial or ministerial has been twice reviewed by this court, and in both instances it was held that it was ministerial. Grider v. Tally, 77 Ala. 422; Russell v. State, Ib. 89. See also Glenn v. Lynn, 89 Ala. 608; Phoenix Carpet Co. v. State, 118 Ala. 143. The cases of Dunbar v. Frazer (78 Ala. 538) and Ramagnano v. Crook (85 Ala. 226) involving the right to mandamus to' compel the issuance of liquor license, arose under a statute materially different from the one under consideration and have no application here. Indeed they recognize the soundness of the opinions in the case of Grider v. Tally and Russell v. State. Upon the authority of these cases we must hold that the motion to quash and the demurrer were properly overruled.
Doubtless it is true that the burden was upon the relator to prove that the recommendation he presented to the respondent for the license was signed by twenty respectable householders and freeholders residing within the corporate limits of Camp Hill etc. Has he sustained this burden ? The recommendation presented by him was signed by thirty-onje (31) persons. It seems to be conceded by both sides that ten of this number did not possess the qualifications, thus reducing the number of qualified signers to twenty-one. Of this latter number it is admitted that nineteen did possess the requisite qualifications. So then the question is-whether either J. J. Bradford or W. H. Johnson, two' of the signers, whose names are not included in the ten or the nineteen, were qualified. Since the statute only requires twenty, the finding of either to be competent, will fill its requirements. Their respectability is conceded. Johnson’s competency is challenged solely upon the ground that he is not a freeholder. The evidence,, without conflict, shows that at the time he signed the recommendation 'and at the time of the trial, he resided upon a lot within the corporate limits of the town of Camp Hill which had formerly belonged to his de
Another point is relied upon to reduce the number below twenty. It is that a number of the qualified signers, after the institution of this proceeding,requested the respondent not to consider their names in any action that he might take on the application of the relator for license. Whatever may have been the right of these persons to withdraw their recommendation of the relator before the respondent acted upon his application, it is clear to ns that they could) not do so after the refusal of the respondent to issue the license and after this proceeding had been instituted, predicated upon that refusal.
The remaining question involves the constitutionality of the act, approved December 10, 1900, entitled “An act to establish, maintain and regulate a dispensary in the town of 'Camp Hill,” etc. — -Acts of 1900-1901, p. 295. In many of its features it is in substance the same as the act which was declared unconstitutional in Mitchell v. State, 134 Ala. 392, and much that was said in that case condemning that act applies to this one. On the authority of that case, we must hold this act to be unconstitutional.
Affirmed.
