Yahn v. Merritt
Decision Date | 04 February 1898 |
Citation | 23 So. 71,117 Ala. 485 |
Parties | YAHN v. MERRITT, JUDGE. |
Court | Alabama Supreme Court |
Appeal from circuit court, Geneva county; J. W. Foster, Judge.
Petition by J. Yahn and others for a writ of mandamus against Jere Merritt, judge. From an order denying the writ, petitioner Yahn appeals. Reversed.
W. O Mulkey, for appellant.
The requisite number of qualified citizens of beat 5 of Geneva county made application, under the provisions of an act approved December 8, 1890 (Acts 1890-91, p. 53), to the probate judge of said county, to forthwith order an election to determine whether alcoholic, vinous, or malt liquors shall be sold in said beat. The application was refused, and petitioners applied to the circuit court judge of the judicial circuit for a writ of mandamus to the probate judge. Upon the hearing, the writ of mandamus was denied, and this action of refusal of the writ is brought to this court by appeal.
It appears from the return of the probate judge that he based his refusal to order the election solely upon the provision of an act approved February 6, 1897 (Acts 1896-97, p. 599). The question for consideration is whether the provisions of the latter act repeal the former, and if so, whether it is constitutional. The title of the latter act is as follows "An act to provide for and regulate the sale of liquors and other intoxicating drinks in Geneva county Alabama." The first section of the act reads as follows "From and after the passage of this act it shall be unlawful for any person or persons to sell, barter, exchange give away, deliver or otherwise dispose of any spirituous, vinous or malt liquors or intoxicating bitters, or any other intoxicating drink in Geneva county, except in incorporated towns that are under police regulations which are of force and effect." It will be seen that the act not only prohibits the sale of spirituous, vinous, and malt liquors, except in incorporated towns, but also the "giving away or otherwise disposing of such liquors." Williams v. State, 91 Ala. 14, 8 So. 668. We regard the question as one already settled by several adjudications of this court. See the following authorities: Morgan v. State, 81 Ala. 72, 1 So. 472; Miller v. James, 80 Ala. 89. Other objections to the latter act might be referred to, but we deem it unnecessary. The act of 1896-97, supra, is obnoxious to section 2 of article 4 of the constitution, and therefore null...
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