Ramagnano v. Crook

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 of the 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 q?,tasi-judicial function, would no more be a final order or decree than a like refusal to approve the 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 re-considered 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 [452] 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; Pinney 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 had been taken in Calhoun county, under the provisions of the act of December 8th, 1886 (Acts 1886-87, pp. 671-673), relating to the local prohibition of the liquor traffic in that county, and that a majority of the voters were in favor of such prohibitory measure. This act provides that, in such event, it shall be the duty of the probate judge to record the result in his office, and to “give notice for thirty days, by publication in all the newspapers published in the county, that a majority of the qualified voters, who voted at such election, voted for prohibition.” This notice is shown by the record to have been inserted in all the newspapers published in Calhoun county, on December 27th, 1889, and was in process of being perfected at the time the case was decided by the probate judge. At this time — January 30th, 1890— when this opinion is promulgated, it is fair to infer that the requisite notice has been completed. Under these circumstances, if we had jurisdiction of the case, we should decline to issue a peremptory mandamus, the effect of which, would be to pronounce on the constitutional validity of the law, in advance of a proper case being before us justifying such a decision. The only motion we would be disposed to entertain would be one for an alternátive writ, or rule nisi, to enable the applicant to test the regularity and legal validity of the proceedings seeking to put the law into operation. On this subject it would be improper for us to express any opinion, until a case involving the point comes regularly before us for our consideration. Thp application is, accordingly, dismissed,