Childers v. Shepherd

• Decision Date: 18 January 1905
• Citation: 39 So. 235,142 Ala. 385
• Parties: CHILDERS v. SHEPHERD, JUDGE.
• Court: Alabama Supreme Court

39 So. 235

142 Ala. 385

CHILDERS v. SHEPHERD, JUDGE.

Supreme Court of Alabama

January 18, 1905

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Petition by S. J. Childers for a writ of mandamus against James W Shepherd, as judge of probate of Walker county, to compel him to issue to petitioner a license as a retail liquor dealer. From an order denying the writ, petitioner appeals. Affirmed.

It was averred in the petition, that the petitioner had applied to the said James W. Shepherd, as probate judge of said county for a license to retail spirituous, vinous and malt liquors in the corporate limits of the town of Jasper; that he had complied with the law in that he had presented at the same time with his application, a recommendation in writing signed by 20 respectable freeholders and householders residing within the corporate limits of said town, who certified that the petitioner was a man of good moral character, and in all respects a proper person to be licensed as a retail liquor dealer, and that he had tendered to the judge of probate the amount of money required to be paid for obtaining a license; but that said James W. Shepherd, as such judge of probate, had refused and declined to issue to him such license. The respondent waived the issuance of the rule nisi or other notice, and filed his answer admitting the allegations of the petition as to application for license as alleged, and its refusal. Respondent further alleged that he refused to issue the license for the reason that the sale of spirituous, vinous and malt liquors as proposed by the petitioner, was and is prohibited by law; that on the 3d of March, 1903, an act of the Legislature of Alabama, was approved, entitled "An act to authorize all incorporated towns and cities in Walker county to establish and operate a dispensary or dispensaries in such incorporated towns or cities for the purpose of buying and selling spirituous, vinous and malt liquors, and to provide for the distribution of certain profits arising therefrom, and to further regulate or prohibit the sale of such liquors in said County, upon the casting of a majority vote in favor of said dispensaries, at an election to be held in said county on Tuesday, the 4th day of August, 1903" (Loc. Acts 1903, p. 137), and which act was made a part of said answer.

The petitioner replied to the answer of the respondent, and answered that the said act set out in said answer was never lawfully adopted by the Legislature of Alabama, and that the said act is unconstitutional, null, and void; that no lawful or authorized election was held in said county of Walker on Tuesday, the 4th day of August, 1903, but that any election held in said county under the said act was unauthorized, unlawful, unconstitutional, null and void.

Emmett O'Neal and Thos. R. Roulhac, for appellant.

W. C. Davis and W. L. Martin, for appellee.

HARALSON J.

It is admitted by counsel for petitioner that "the sole question raised by the record is whether the act which authorized dispensaries in Walker county upon its ratification by a popular vote and the election held under its provisions, was constitutional."

So far as what occurred in the House of Representatives where the act originated is concerned, it cannot be successfully contended that there was anything done or omitted, which subjected it to constitutional infirmity. The bill in question was introduced, accompanied by notice and proof of notice, such as is required by section 106 of the Constitution. The notice given consisted of the publication in full of the bill itself, together with its title, accompanied by the following affidavit: "The State of Alabama, Walker County. Before me, Sheriff Lacy, register in chancery in and for said county, this day personally came J. C. Norwood, known to me to be the editor and manager of the Mountain Eagle, a newspaper published in Jasper, in said county, who being by me duly sworn, deposes and says, that the attached notice to authorize all incorporated towns and cities in Walker county to establish and operate a dispensary or dispensaries in such incorporated towns or cities, was published once a week for four consecutive weeks in said newspaper before the making of this affidavit."

The criticism of counsel that this affidavit does not state the name of the newspaper, and the name of the county in which said paper was published, is without merit. The affidavit is headed, "State of Alabama, Walker county," and refers to the name of the paper in which it was published as the Mountain Eagle, published at Jasper in said county of Walker, and it further states, that the notice was published for four consecutive weeks in said newspaper, referred to in the affidavit,--the Mountain Eagle, published at Jasper in said county. It thus appears, that...