
    
      Ex parte Pierce.
    
      Application for Mandamus to Probate Judge, on Refusal to grant License for Retailing Spirituous Liquors.
    
    1. Prohibitory liquor laws in Butler county; amending and revising statutes. — Beat No. 12 in Butler county was exempted from the operation of the general law regulating the granting of licenses to retail liquors, under the provisions of a special statute approved November 27th, 1886, which authorized a local election to determine whether or not the sale of liquors in that beat should be prohibited ; another statute was approved February 19th, 1887, which prohibited the sale of liquors “within five miles of Goodwater Academy, Ooosa countv, and in the county of Butler except in Beat No. 12,” while a general prohibitory law, applicable to the whole of Butler county, was approved on the 26th February, 1887, a subsequent day of the same session of the General Assembly; and each of these two acts went into effect on the 1st January, 1888. On the 20th February, 1889, during the next session of the General Assembly, the act of February 19th, 1887, was amended by excepting the town of Goodwater from its operation; but the amendatory law set out the title and the 1st section of the former act in full, including the exemption in favor of said Beat No. 12, and re-enacted it with the addition of a proviso excepting the town of Goodwater. Held, that the effect of this last statute was to revive the exemption in favor of said Beat No. 12, although it had been repealed by the general prohibitory law of February 26th, 1S87.
    
      Application by petition on tbe part of William Pierce, for a writ of mandamus directed to Hon. L. M. Lane, probate judge of Butler county, requiring him to issue to tbe petitioner a license to retail spirituous liquors in tbe town of Greenville. Tbe petitioner bad complied with all tbe statutory pre-requisites, and a license was refused solely on tbe ground that Greenville was governed by tbe general prohibitory law of February 26th, 1887, which went into effect on tbe 1st January, 1888, and by its terms applied to tbe whole of Butler county. An application for a mandamus was first made to Hon. John P. Hubbard, tbe presiding circuit judge, and was by bim refused.
    The case involves a consideration of tbe effect of tbe following statutes: (1.) By an act approved December 12th, 1882, tbe general law (Code, 1876, § 1544) was amended “so far as it relates to tbe counties of Pike, Butler and Coffee,” - by requiring tbe applicant for a license to retail spirituous liqors to produce tbe recommendation of a majority of tbe qualified electors residing in tbe precinct. — Sess. Acts 1882-3, p. 272. (2.) On tbe 27th November, 1886, this act was amended so far as it applied to Precinct No. 12, which includes tbe town of Greenville, by providing for an election in tbe precinct, to ascertain tbe sense of tbe people on tbe question of prohibition. — Sess. Acts 1886-87, p. 706. An election was held under tbe provisions of this act, and resulted in favor of “No Prohibition.” (3.) On tbe 19th February, 1887, a later day of tbe same session of tbe General Assembly, an act was passed prohibiting tbe sale of liquor “within five miles of Goodwater Academy, Coosa county, and in tbe county of Butler except Beat No. 12 of said county;” but this act, by its terms, did not go into effect until January 1st, 1888. — Sess. Acts 1886-7, p. 695. (4.) On tbe 26th February, 1887, a still later day of tbe same session, another act was passed prohibiting tbe sale of liquor in Butler county generally, not making any exceptions; and this act went into effect on tbe 1st January, 1888.' Sess. Acts 1886-7, p. 700. (5.) On tbe 20th February, 1889, an act was passed by tbe General Assembly amending tbe 1st section of said act of February 19th, 1887, by excepting tbe town of- Goodwater from its provisions; tbe enacting part being as follows: “Sec. 1. Be it enacted ” &c., “that section 1 of ‘An act to prohibit tbe sale, giving away, delivery, transfer, parting with, procuring, or other disposition of spirituous, vinous or malt liquors, or any intoxicating bitters or mixtures, within five miles of Goodwater Academy, Coosa county, and in the county of Butler except Beat 12 of said county,’ approved February 19th, 1887, be amended so as to read as follows: Sec. 1. Be it further enacted,” &c., “that it shall be unlawful for any person to sell, give away, deliver, transfer, part with, procure, or otherwise dispose of spirituous, vinous or malt liquors, or other intoxicating bitters or mixtures, within five miles of Goodwater Academy, Coosa county, and in the county of Butler except Beat No. 12 of said county; provided, the provisions of this act shall not apply to social drinking in family circles; and provided further, that the provisions of this act shall not apply to the corporate limits of the town of Goodwater.”—Sess. Acts 1888-9, p. 512. The second proviso to this act, and a third proviso, which has no connection with this case, show the only changes made in the amended act of February 19th, 1887.
    Chas. Wilkinson, for the petitioner,
    cited Biggs v. Brewer, 64 Ala. 285; George v. Blceates & (Jo., 19 Ala. 738; Wilkinson v. Ketler, 59 Ala. 308; Washington v. State, 72 Ala. 276; Endlich on Statutes, § 187, p. 259.
   Per Curiam.

The present application presents a single question, namely: Whether the act approved February 20th, 1889— Sess. Acts, 512 — repealed the prohibition statute for Butler county, approved February 26,1887 — Sess. Acts, 700-1. It is manifest that the two statutes are incompatible, and both can not stand. In such case, the rule is that the latest expression of the legislative will must dominate the older.

It is true, that the act of February 19, 1887 — Sess. Acts, 195 — had been superseded and repealed, so far as it affected Butler county, by the prohibitory enactment of February 26, 1887. After that time, the provision in the older statute, which exempted Beat No. 12 in Butler county from its operation, ceased to be the law. The act of'February 20, 1889, however, relieved the exemption of Beat No. 12 of the prohibitory provision, and restored it to its former status. Under our rulings, we feel constrained to hold that the act of February 20, 1889, revived and re-enacted section 1 of the act approved February 19, 1887, and thenceforth the prohibitory liquor law for Butler county was and is not of force in Beat No, 12 of that county.—Wilkinson v. Ketler, 59 Ala. 306; Tally v. Grider, 66 Ala. 119; State v. Warford, 84 Ala. 15.

A rule is ordered to be issued from this court, directed to the Hon. L. M. Lane, judge of probate of Butler county, commanding him to show cause to the next term of the Circuit Court of Butler county, why a peremptory writ of mandamus shall not issue, commanding him to issue the license prayed for by the petitioner.

Let the costs of this proceeding be paid by the petitioner.  