
    Ramagnano v. Crook.
    
      Application for Mandamus to Probate Judge, on Refusal of License for Retailing Spirituous Liquors.
    
    1. Act of Feb. 17th, 1885, prohibiting sale of spirituous liquors in Calhoun county; constitutionality of, as to title and subject-matter. — The local statute approved December 7th, 1886, entitled “An act to prohibit the sale, giving away, or otherwise disposing of spirituous, vinous or malt liquors, or intoxicating bitters, or patent medicines having alcohol as a base, in Calhoun county” (Sess. Acts 1886-7, p. 571), which provides for an election to ascertain the sense of the people on the question of prohibition, and specifies the time when the prohibitory clauses shall go into effect, if the popular vote is in favor of prohibition, is not violative of the constitutional provision (Art. iv, § 2), relating to the title and subject-matter of laws; the title, though general, relating to hut one subject, and all the provisions being germane thereto.
    2. Statute •partly unconstitutional. — Unconstitutional provisions in a statute do not render the entire statute void, when the other parts are capable of full execution without them; and if a subject is included in the body of a statute which is not expressed in the title, that part will he held inoperative, while effect is given to the other provisions.
    3. Mandamus; refusal of probate judge to grant license for retailing liqaors. — In acting on an application for a license to retail spirituous liquors, a probate judge acts in a gwasi-judicial. capacity; and his refusal to grant a license, though erroneous, or founded on insufficient reasons, can not he revised or reviewed by mandamus from the Circuit Court.
    Appeal from the Circuit Court of Calhoun.
    Tried before the Hon. John B. Tally.
    The appellant in this case, John Ramagnano, applied by petition to Hon. E. F. Ciiooe, judge of probate of said county, for a license to retail spirituous liquors; and a license having been refused, he then applied by petition to the Circuit Court, for a mandamus to the probate judge. On the hearing, his petition was refused and dismissed; and the judgment dismissing it is here assigned as .error.
    Walden & Son, for appellant.
   CLOPTON, J.

The appellant, having complied with all the requirements of the act of February 17, 1885, necessary to obtain.a license to sell spirituous, vinous or malt liquors at retail, applied for such license, which was refused by the judge of probate. — Acts 1884-5, p. 179. The petition avers that the judge refused to grant the license on the ground that he was prohibited by the special act of December 7, 1886, relating to Calhoun county. — Acts 1886-87, p. 571. The constitutionality of this act is assailed, on the ground, that it violates section 2 of Article TV of the constitution, which provides: “Each law shall contain but one subject, which shall be clearly expressed in its title,” except certain enumerated general bills. The title of the act is, “An act to prohibit the sale, giving away, or otherwise disposing of spirituous. vinous or malt liquors, or intoxicating bitters, or patent medicines having alcohol as a base, in Calhoun county.” The title, though in general terms, fairly expresses a single subject of legislation — to prohibit the selling, giving away, or otherwise disposing of intoxicating liquors.

Generality of terms in expressing tbe subject does not come within the constitutional inhibition. Legislative enactments will not be pronounced nullities, because of the comprehensiveness of the titles, when the general subject of the law is so clearly expressed as to avoid deception in regard to the object of the enactment. In this regard, much must necessarily rest in the discretion of the law-makers, and the title of a bill may be as broad and comprehensive as the legislature may choose. The constitutional requirement is complied with, if the title is broad enough to embrace all the minor subjects contained in the enactment, which, when so combined, form the single comprehensive subject expressed in the title. The inclusion in a statute of matters indicated by the title, or. connected with the subject expressed, and necessary or proper for a full and complete accomplishment of the object intended, is in accord with the spirit of the constitution. The first, fourth and seventh sections of the act under consideration, provide for an election to ascertain the wishes of the people in reference to the prohibition of the sale of intoxicating liquors, for the conduct of the election, for the preservation of quiet and order while it is being held, and for the publication of the result if in favor of prohibition. The fifth and sixth sections declare it unlawful, and make it a misdemeanor, for any person, firm, or corporation, after the expiration of thirty days notice of such result, “to sell, give away, or otherwise dispose of any spirituous, vinous or malt liquors, or intoxicating bitters, or any brand of bitters or medicines with sufficient alcohol or spirituous liquors therein to make a man drunk.” Section eight exempts from the operation of the act the use of wine for sacramental purposes, or the use of any kind of liquor for domestic purposes, or the sale of wine manufactured from grapes or berries grown in this State by the person selling them. The ninth section fixes the time when the 'prohibition shall go into effect, and the length of time licenses shall be previously granted.

Only two subjects are suggested as being without the statute — the last clause of the fifth section — “any brand of bitters, or medicines with sufficient alchohol or spirituous liquors therein to make a man drunk,” and the exemptions provided by section eight. In Wall v. State, 78 Ala. 417, we held, that any beverage or decoction which contained spirituous liquors, if not sufficiently adulterated with water or other fluid to impair its intoxicating quality, is embraced in tbe terms “spirituous liquors”; and that it is immaterial that sueb beverage or decoction is qualified by other ingredients, under tbe guise o£ a tonic or medicine. Tbe particular kind of intoxicating liquors mentioned in tbe clause referred to, would bave been embraced in tbe general terms o£ tbe title without specifying them. Tbe eighth section may be regarded as in tbe nature of a proviso to tbe fifth section. Tbe exemptions of wine or liquors for specified uses, and tbe sale of domestic wines, are referable and cognate to tbe comprehensive subject of tbe prohibition of selling, giving away, or otherwise disposing of intoxicating liquors, and is not a regulation thereof. Tbe foregoing analysis of tbe statute makes apparent that all its provisions are included in, and authorized by tbe title.

But, if conceded that any of tbe provisions of tbe statute were unconstitutional, because not expressed in tbe title, or for other reasons, tbe entire statute does not necessarily fall. Such provisions may be regarded as stricken out, and tbe other provisions of the statute, if not dependent upon them, and capable of full execution without them, left in full operation. Where two subjects are expressed in tbe title, and both contained in tbe statute, tbe enactment is unconstitutional in ioio; but, when but one subject is expressed in tbe title, and tbe act contains two or more, tbe provisions relating to tbe matters not expressed may be held to be unconstitutional, and tbe other provisions relating to tbe subject expressed in tbe title bave force and effect. If tbe portions of the act assailed as unconstitutional were rejected, tbe remaining portions are wholly independent of them, and capable of execution according to tbe manifest legislative intent. Ballentyne v. Wiekersham, 75 Ala. 533; Stein v. Leeper, 78 Ala. 517; McCreary v. State, 73 Ala. 480.

But, if tbe act is unconstitutional, tbe petitioner is not entitled to tbe remedy which be seeks. In Dunbar v. Frazer, 78 Ala. 538, it was held, that tbe judge of probate, in granting or refusing a license to retail spiritous liquors under tbe act of February 17, 1885, acts in a quasi-judicial capacity, whether tbe application is or is not contested, and that bis action can not be reviewed or controlled by mandamus. A mandamus will be issued to compel a judicial officer to act, when it is bis duty, and be refuses, but not to direct him bow to act. In tbe present case, tbe judge of probate acted; and tbe sufficiency of tbe reasons for bis action can not be reviewed by mandamus, though they may be erroneous.

Affirmed.  