Tally v. Grider , 66 Ala. 119 ( 1880 )

STONE, J.

This is a proceeding which originated in the “ Local Option Law ” applicable to several counties, of which Jackson is one. The act was approved March 19th, 1875. Paxnph. Acts, 276. To give the probate judge authority to order an election, in such case, a petition must be filed; and the first section of that act declares who may present such petition, and what it shall contain. This entire proceeding is statutory, creating an entirely, new jurisdiction unknown to the common law, and conferring authority on a magistrate of limited, statutory powers, not theretofore exercised by him. Under uniform rulings of this court, on kindred questions, the record must affirmatively show that a petition was filed, containing all necessary averments-to give jurisdiction to the judge of probate, and nothing can be supplied by intendment. No presumption can be indulged in favor of such proceedings, which the record, or quasi record, does not affirmatively prove. — 1 Brick. Big. p. 939, §§ 351, 352; 2 lb. 464, § 1; lb. 400; § 14.

The petition, on which the election was ordered; is shown to be lost, or mislaid. Its contents are proved by the testimony of the ex-judge of probate, who ordered the election; -and, to some extent, negatively, by the order made when the petition was filed. It was and is fatally defective, in not averring “ that, in the opinion of the petitioner, the public good will be promoted by a prohibition of the sale or giving away of vinous or spirituous liquors, within such limits.” The probate judge never acquired jurisdiction to order the election, and the whole proceedings were void.

The judgment of the Circuit Court is affirmed.