77 Ala. 89 | Ala. | 1884
The special act of February 28th, 1881 (Acts 1880-81, p. 192), makes it unlawful for any person, after January'1st, 1882, to manufacture, sell, or give away, vinous, spirituous, or malt liquors, bitters or beverages, composed, in whole or in part, of such spirituous or malt liquors, or intoxicating drinks, in Bullock county, with certain exceptions not necessary to be noticed. The third section provides for an election in any incorporated city or town having a population of two hundred and fifty, or more. Whether such election was held in James, an incorporated town, where the selling is shown to have occurred, and the result of the election, are not shown by the record. We shall assume, for the purposes of this opinion, that an election was held as provided by the statute, and that the result was in favor of “ license.” In such event, the prohibitory provisions do not apply to such incorporated city or town, and the general laws, governing and regulating the issue of licenses, are in force so far as applicable. By the statute then in force, no license must be granted to sell vinous or spirituous liquors in any incorporated city or town, unless the applicant produce to the judge of probate the recommendation of twenty respectable freeholders and householders, residents within the corporate limits, if so many, and if not, a majority will be sufficient; and a particular affidavit is prescribed, necessary to be taken and subscribed before license can be granted. — Acts 1882-3, pp. 36, 37.
The authority of the judge of probate to issue license is conferred by statute; and in Grider v. Tally, at the present term, we held, after full consideration, that he acted in a ministerial capacity in the matter of issuing licenses to retail vinous or spirituous liquors under the general laws. The extent of the authority of the judge, and the conditions preliminary to its exercise, are prescribed and regulated by statute. A ministerial act is one performed by an officer or person in obedience to a legal mandate, or by legal authority, and involves the following of instructions. The officer or person can not alter, add to, or dispense with any of the conditions, on which the authority is dependent. The performance of the act is not conclusive of authority, and it is permissible to go behind the act, and show that the pre-requisites to performance did not exist. The statutes are inhibitory: no license shall be granted, unless the applicant complies with the statutory requirements. Authority is conferred, and its exercise commanded, on specified acts being done by the applicant; and denied, if not done. To fh.e validity of a ministerial act, authority conferred on the
The license is prima faoie evidence of compliance, and it is incumbent on the prosecution to show that the pre-requisites to its issue have not been observed. It being a question of power, neither knowledge of non-compliance, nor any act of the judge of probate, can excuse the applicant lie is presumed to know the statutory requirements, and a failure on his part is at his peril. Waiving consideration of the sufficiency of the recommendation, it is manifest that the affidavit omits the following material and substantial provisions; that the applicant will not knowingly sell or give away vinous or spirituous liquors to any person of known intemperate habits, and will not keep open on Sunday for the purpose of carrying on the business. The issue of the license was in violation of law, and void.
What we have said as to the capacity in which the judge of probate acts, has no reference to the act of February 17th, 1885, amendatory of section 1544 of the Code, from the provisions of which Bullock county is excluded.
Affirmed.
