Hearn v. Brogan

• Decision Date: 07 February 1887
• Citation: 1 So. 246,64 Miss. 334
• Court: Mississippi Supreme Court
• Parties: S. L. HEARN ET AL. v. JOHN T. BROGAN

1 So. 246

64 Miss. 334

S. L. HEARN ET AL. v. JOHN T. BROGAN

Supreme Court of Mississippi

February 7, 1887

APPEAL from the Circuit Court of Clay County, HON. W. M. ROGERS Judge.

On August 26, 1886, John T. Brogan presented to the Board of Mayor and Selectmen of the City of West Point, in Clay County, a petition for license to sell vinous and spirituous liquors as follows:

"Your undersigned petitioners, being real estate owners in said city, over the age of twenty-one years, do hereby recommend John T. Brogan, a resident in said city and county, to be a person of good reputation and moral character, and a sober and suitable person to receive a license to retail and sell vinous, spirituous, and malt liquors in any quantity within said city, and we join with him in praying for a license for him and to him to sell the same in the two-story brick house on the southeast corner of Main and Commerce streets, in said city, now occupied by said L. Weiler."

Signed by William Parrish, John T. Brogan, and thirty-nine others.

On September 1, 1886, S. L. Hearn and many others filed before the same body a counter-petition to the one above set out. On September 4, 1886, the Board of Mayor and Selectmen of West Point granted Brogan license to retail liquors in accordance with his petition, over the objection of the counter-petitioners, who appeared and moved to dismiss the petition, (1) "because the said John T. Brogan did not file before the said board such petition as was required by law before any such license could be granted; (2) because said petition does not show what kind of a license the said John T. Brogan desired, nor is the said petition by the said John T. Brogan; (3) because the said petition does not show in what quantity the said John T. Brogan desired a license to sell vinous and spirituous liquors." The counter-petitioners appealed to the circuit court. The petitioner Brogan there appeared and moved the court to dismiss the appeal, "(1) because the appeal was not taken in the time required by law; (2) because there was no application for appeal and no appeal taken as required by law; (3) because there is no appeal-bond on file approved as required by law; (4) because it does not appear from the record that there is any bill of exception to the action of the board of mayor and aldermen." This motion was sustained and the appeal dismissed. The counter-petitioners Hearn et al., appealed to this court. The record nowhere states whether an election had been held in Clay County under the "local option" law approved March 11, 1886, nor under what law petitioner seeks a license.

Affirmed.

Fred Beall, for the appellants.

The appeal was properly taken. The contestants did all that the law required them to do. McGee v. Beall, 63 Miss 455.

This petition is, I submit, insufficient in the following particulars:

First. Brogan does not appear by said petition to be a "male person." On this point the record throughout is wholly silent. Nowhere in the record does it appear that the appellant was a "male person." Rhodes v Silk, 63 Miss. 308; Tally v. Grider, 66 Ala. 119; Loeb & Co. v. Duncan, 63 Miss. 89; Corbett v. Duncan, 63 Miss. 84; McGee v. Beall, 63 Miss. 578.

It cannot be assumed that John is a male in these days, for no longer does the name indicate the sex.

The applicant did not comply with that part of the statute which says "said applicant shall make application in writing to the said board of supervisors or municipal authorities setting forth the place where said liquors are to be sold, etc."

There is nothing in the record but the recommendation of the twenty-five real estate owners.

True, that recommendation is signed by a John T. Brogan, but it does not appear that he is the applicant. It is hardly to be assumed that he would recommend himself, but the presumption would be that he is a real estate owner, as the paper states, one of the necessary twenty-five who recommend the applicant.

The recommendation or application is to sell liquor in any quantity.

There are two statutes upon the subject of retailing besides the act of 1886.

The Code of 1880 is the general law; then the act of 1884 provides for the sale of liquors in any quantity over one gallon, and not exceeding five gallons. The application should state in what quantity the applicant desires to sell, but in the case at bar there is no such statement.

White & Fox, for the appellee.

1. The circuit court did not err in sustaining the motion to dismiss the appeal.

2. If this court should determine that the appeal was improperly dismissed, and that, instead of remanding the case, they should, on this appeal, consider the sufficiency of the petition for license, we say that the objections urged to this petition are utterly untenable and without authority.

To the first objection we say that if it is true that, as counsel says, "it cannot be assumed that John is a male," by reference to the petition, it will be found that the name John T. Brogan is referred to three times by the personal pronoun "him." The petition, after recommending Brogan to be a suitable person to...