
    Hudgins, Judge of Probate v. State ex. rel. A. T. Hicks & Co.
    
      Aland am us to Compel Probate Judge to Issue License to Hell TAquor.
    
    (Decided Dec. 21, 1905,
    39 So. Rep. 717.)
    1. Local Statutes; Constitutionality of Passage; Notice of Intention to introduce — An act approved September 28, 1903 (Local acts 1903, p. 392) relating to sale of iquor in Pickens county, Alabama, is repugnant to the constitution, on account of failure to'comply with § 106 relative to notice.
    2. Mandamus; Costs; Officers Licible. — A Prohate Judge is properly taxed with the costs of mandamus proceedings brought to compel him to issue license to sell liquors which he has wrongfully refused to issue.
    Appeal from Pickens Circuit Court.
    Hoard before Hon. H H. Spkott.
    Mandamus by the state on the relation of A. L. Hicks & Co., to compel Hudgins as judge of prohate to issue relator a license to fell liquors in the town of Gordo, Pickens county, Ala.
    The petition alleges that Gordo, is a town of less than 1000 inhabitants; that petitioners presented to the judge of prehate a recommendation in writing, signed by more than 20 respectable householders and freeholders living within the corporate limits of the town of Gordo, Pick-ens county, who certified that the petitioners were, of good moral characfer, and in all respects proper persons to he licensed to sell liquor; that they made and tendered to said judge of probate at the time they applied for license the affidavit required hv section 3521 of the Code of 1896; that they tendered the. said judge of probate, at the time they applied for said license the sum of ■|350. the amount of license required by the State and county; and that said judge of probate refused to. issue said license.
    
      The judge of probate answered justifying bis course under the provisions of an act approved Sept. 28th, 1903, which was made, a part of the answer. Relators attacked the act- as unconstitutional and void, being.violative of Section 106 of the constitution of 1901. The court granted the petition and made the writ peremptory, and assessed-the cost of the. proceedings against the judge of probate.
    M. B. Curry and I. R. Hinton, for appellant.
    The provisions of the act is a complete answer to the-petition, and the act is not violative of section 106 of the constitution. — Laws v. The State, 38 So. 798; Covington v. Thompson, 37 So. Rep. 321. The officer was mandamused to compel him to take action as such officer and the court improperly adjudged costs against him. — Brg<m v. McDuffie, 52 Ala. 4.
    Willett & Willett and Foster, Oliver, Cox & Cox, for appellee.
    No brief came to the reporter’s bands.
   SIMPSON, J.

This was an application for license to sell liquor in Pickens county, which was refused because of the provisions of the act of the Legislature approved September 28,- 1903. Loc. Acts 1903, p. 392. The notice given of intention to introduce said act is as follows • “To whom it May Concern: A bill.will be introduced in the present session of the Legislature of Alabama to prohibit the sale of spirituous, vinous or malt liquors outside of an incorporated town in Pickens county, Alabama, on and after the first.day of January, 1904, provided tliat such spirituous, vinous or malt liquors shall not be sold in any incorporated town in .said county unless a majority of all the legally qualified voters of the election precinct in which such incorporated town is situated shall he in favor of such sale at an election to he held in such precinct to determine the question of sale or no sale.” The act is entitled : “An act to regulate the license and sale of .spirituous or malt liquors in Pick-ens county, Ala.” Nothing is said in the act about pi ohibiting the sale “outside of an incorporated town. On tlie contrary, provision is made for issuing license in any part, of said county, without regard to whether it is in an incorporated town or not. No provision is made for an election; but, on the contrary the license is to be issued on petition signed by a majority of the qualified votéis in the precinct. It is true that, in general terms, the woid “election” may be said to be “the act of choosing; choice; the act of electing one or more from others; power of choosing or selecting.” Webster’s Dictionary. .Yet “an election to be held in such precinct,” according to the custom of this ¡state, has a certain definite meaning which does not include a choice by petition. It results that the act in question is void on account of the failure to comply with section 106 of the Constitution.

There was no ei ror in taxing the costs against the appellant.

The judgment of the court is affirmed.

Tyson, Anderson, and Denson, JJ., concur.  