Town Council v. Sargent

ARNOLD, J., delivered the opinion of the court. Success to either party in this case is a barren victory. If a motion to dismiss or quash the proceedings had been made in the lower court, it would, no doubt, have been sustained. Appellee was not a party to the proceedings sought to be reviewed, and for that reason not entitled to the remedy by certiorari for that purpose. McCreary v. O’Flinn, 63 Miss. 204. No final action had been taken on his petition for license, and until that was done there was no judgment against him which he could have revised by certiorari. Powell on Appellate Proceedings 349, 355. The petition of the majority, or what purported to be the majority, of the legal voters of the town, to the town council, not to grant license to any one to retail liquor therein for twelve months, required no general ordinance or decision to be made matter of record by the council, to the effect, either that they would, or would [626] not grant any license thereafter during that time, and the general order or ordinance made by them was not reviewable by certiorari. The statute simply provides that after such petition is presented no license shall be granted for twelve months. Code, § 1103. An ordinance or judgment of record by the council that they would obey the law and grant no license was wholly unnecessary and superfluous. Whether they would obey the law or not was to be tested by their action on specific applications for license, if such were afterward made, and until then there was no ground to complain by legal process of their action on the subject. The judgment is reversed and the proceedings dismissed.