Ramaguano v. Crook

• Decision Date: 30 January 1890
• Citation: 7 So. 247,88 Ala. 450
• Parties: RAMAGUANO v. CROOK, JUDGE.
• Court: Alabama Supreme Court

7 So. 247

88 Ala. 450

RAMAGUANO v. CROOK, JUDGE.

Supreme Court of Alabama

January 30, 1890

Appeal from probate court, Calhoun count; E. F. CROOK, Judge.

John H. Caldwell, for appellant.

PER CURIAM.

The statute allows no appeal from the action of a probate judge refusing to grant a license to retail spirituous liquors, and hence, if this be regarded as a direct appeal from such order of refusal, as in form it appears to be, it must be dismissed. The case is not covered by section 3640, Code 1886, which allows an appeal to this court from "any final decree of the court of probate, or from any final judgment, order, or decree of the judge of probate." An order refusing to grant a license, whether the act be the exercise of a ministerial or quasi judicial function, would no more be a final order or decree than a like refusal to approve a bond of an officer would be. It is no such adjudication of the right involved as would be a bar to a subsequent renewal of the same application by the same person, on the same state of facts, and this is the test of a final decree. It could be reconsidered at any time, without regard to the act of previous refusal. This has heretofore been the universally accepted interpretation of this section of the Code in the practice before this court.

So the case is equally bad for want of jurisdiction, if we regard the proceeding as an application for a peremptory writ of mandamus to issue directly from this court to the probate judge of Calhoun county to compel him to issue such license; the issue of a rule nisi being expressly waived by the respondent. We have decided that we will not grant a mandamus from this court to a probate judge in the first instance. The application must be first presented to the circuit court, or other court of commensurate jurisdiction, and be refused by that tribunal before the supervisory action of this court can be invoked. The petitioner having failed to make any application whatever to that court for relief, we must decline to entertain his petition here. Ex parte Pearson, 76 Ala. 521; State v Williams, 69 Ala. 311.

There is another ground which would also justify the refusal of a peremptory writ, such as is sought by the petitioner. The record shows that the popular vote has been taken in Calhoun county, under the provisions of the act of December 7, 1886 (Acts 1886-87, pp. 671-673,) relating to local prohibition of the liquor traffic in...