Miller v. Jones , 80 Ala. 89 ( 1885 )

CLOPTON, J.

All judicial tribunals possess the inherent power to vacate, a.t any time, any order made by them which is void on its face. Such vacation will be made by the court, where the order is made, on motion by any party having an interest.— Glass v. Glass, 76 Ala. 368; Baker v. Barclift, 76 Ala. 414. If the order for the election is void on its face, and the appellee had sufficient interest, the application to vacate it was properly made, in the first instance, to the judge of probate, whose power and duty were, in such case, to quash the proceedings. — Savage v. Wolfe, 69 Ala. 569. The primary purpose of the certiorari is to remove into the Circuit Court for revision the order of the judge of probate, denying the petition and motion to vacate his order for the election, and to quash the proceedings. To enable the Circuit Court to act intelligently and advisedly, it was necessary that the subject-matter, on which the action of the judge of probate was invoked, and all the proceedings relating thereto — -that is, that the whole case — should be certified ; so that the Circuit Court could determine, on an inspection of the record, whether the judge of probate had jurisdiction to order the election and fix a time for holding the same. They were correlative matters. The certiorari is not obnoxious to the objection, that it unites in one writ two distinct orders.

The functions of the writ of certiorari, at common law, extended to questions of the jurisdiction of the inferior tribunal, as well as to the regularity of the proceedings. Its office is to correct errors of law apparent on the record. The trial is not de novo, unless expressly provided by statute. The statute under which the judge ordered the election creates a new jurisdiction. He acts in a summary manner, and in a course different from the common law. No method is provided by which his action may be reviewed. In such case, certiorari is the proper remedy, and the Circuit Court, by virtue of its statutory authority to exercise a general superintendence over all inferior jurisdictions, is the proper court to supervise the proceedings-. McAllilley v. Horton, 75 Ala. 491; Town of Camden v. Block, 65 Ala. 236.

It will be conceded, that no one is authorized to become a party to judicial proceedings, and sue out a certiorari, who has not an individual interest in the subject matter, which is affected by the proceedings. The interest must relate to him separately from the public. It must be a private right or privilege, which appertains to him, and which, being in his private keeping, he is authorized to vindicate. An interest or right, which he holds in common with the rest of the community, is not sufficient. It is contended, that Jones had no such personal and separate interest. He is a member of a firm, to whom a license was issued about May 1, Í885, by the judge of probate, to carry on the business of retailing liquors, which did not expire until January 1, 1886 ; and was engaged in the business at the time the order for the election was made, and the election was held. Whilst a license to engage in the business of the retail of liquors is not a contract, but is a permit revocable at the will of the legislature ; it is nevertheless a personal privilege of value, whatever may be the estimate of the moral character of the business. If the judge of probate made a valid order for an election under authority of a valid statute, the election held in pursuance thereof, having resulted in favor of prohibition, and having been duly published, operates to revoke his license, and to convert what is otherwise a lawful and authorized business into a criminal offense. As such would be the effect of the proceedings if valid, Jones is entitled to test, in any legal mode, their validity as a revocation of his license. His is a legal interest, relating to him individually, which he holds separate and distinct from the rest of the people of the county.

It will not be disputed that the legislature and the agencies employed in the enactment of laws are independent of judicial interference; and the courts will not review acts which are legislative. The State government is divided into three distinct departments, and no person, being one of the departments, can exercise any power belonging properly to either of the others, unless expressly directed or permitted by the constitution. Though the abstract proposition asserted by counsel is correct, it is inapplicable and without foundation. Assailing a statute as unconstitutional is not an effort to review a legislative act; and the statute does not undertake or purport to delegate legislative power to the judge of probate. Such delegation is prohibited by the constitution. The office of legislation was performed, when the act, having passed both houses of the Genera] Assembly, was approved by the Governor. The act then became a complete law; only its operation being suspended until the happening of the contingency prescribed by the statute. Judicial and not legislative power is conferred on the judge of probate.

Having ascertained that the circuit court acquired jurisdiction by a proper proceeding instituted by an authorized party, the further inquiry will be addressed to the question of error vel non in the judgment from which the appeal is taken.

We assume' as a postulate, that the record of every court of statutory limited jurisdiction must affirmatively discover every fact essential to the validity of its orders or judgments. The proceeding to obtain an election under the act is statutory, creating a new, special and limited jurisdiction, not covered by the grant of general jurisdiction to the probate court, and not previously exercised by the judge. To put this new jurisdiction into exercise, the preliminary and essential facts must affirmatively appear. Tally v. Grider, 66 Ala. 119; Savage v. Wolfe, 69 Ala. 569. The statute prescribes and defines the jurisdictional facts: Whenever fifty or more resident householders and freeholders of Talladega county file in the office of the judge of probate of said county, a petition in writing, praying for an election, to ascertain the wishes of the people of said county as to the prohibition of the sale op intoxicating liquors in said county, it shall be the duty of said judge to order am, election and fix the time for holding the same.” Acts 1884-85, 234. A petition, signed by fifty or more persons, stating that they are resident householders and freeholders of the county, and praying for an election, filed in the office of the judge of probate, is indispensable to put the proceeding in motion. It is insisted that and should be construed as or. And and or may be convertible words, when required by the sense of the statute; otherwise they will be taken as ordinarily used and understood. The object of the legislature was to guard the people against being unduly precipitated into an exciting election; and therefore required that at least fifty persons should pray for an election, who are residents of the county, and possess the qualifications of both freeholders and householders; in whom were combined the interests of permanency in the value of real property, and of protecting and preserving domestic peace and prosperity. Such are the qualifications of the petitioners prescribed by the legislature, and we are not authorized to dispense, by construction, with either of them.

Two petitions were filed. One of them states, that the petitioners are resident freeholders and householders of the county, and otherwise substantially complies with the requirements of the statute; but is signed by only thirty persons. The other, though signed by a sufficient number, fails to aver that the petitioners are householders, and does not pray for an election to ascertain the wishes of the people of the county. It is urged that the two petitions should be considered as amendatory of each other. It may be, that it is not necessary for all the petitioners to sign one petition ; that different petitions signed by different persons is a substantial conformity to the statute; but in such case, each petition should contain averments of all the jurisdictional facts. A consolidation of all will not operate to supply fatal omissions in any one. If the two petitions be considered as an amended petition, there is still an omission of the averment that fifty or more of the petitioners are resident freeholders and householders of the county; and it is inoperative to put into exercise the statutory jurisdiction of the judge of probate to order an election and fix the time for holding the same, ilis order was eoram, non judice, and the entire proceeding a nullity.

The constitutionality of the statute, under authority of which the election was held, also is assailed. While the exigencies of the case do not require the consideration of this question, another election under authority of the act would probably necessitate its determination ; and if unconstitutional, a present decision may promote the public weal, and discover the necessity of such legislation, as the people may desire, and the General Assembly may deem proper and expedient. Section 2 of Article 4 of the Constitution provides: “Each law shall contain but one subject which shall be clearly expressed in its title.” This clause has been repeatedly considered by this Court, and received a full and elaborate discussion in Ballentyne v. Wickersham, 75 Ala. 533. It was held, that the clause is mandatory, though its requirements should not be so exactingly enforced as to embarrass or obstruct legislation. One of the purposes is, to prevent enactments, relating to subjects of which the title gives no intimation, thereby deceiving the legislature by alluring or misleading titles. The inhibition is not directed against the generality or comprehensiveness of the subject expressed in the title; but the constitutional requirement is, whether it be specified or general, the title shall so clearly express the subject as not to mislead or deceive. Robinson v. Mont. M. B. & L. Assn., 69 Ala. 413; Carson v. The State, lb. 235.

The title of the act is, “An act to regulate 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 Talladega County.” But one subject is expressed in the title — the regulation of the sale, giving away or otherwise disposing of liquors — and the enquiry is, does the title express the subject contained in the enactment: in other words, are regulation and prohibition the same or distinct subjects ? Regulate and prohibit have different and distinct meanings, whether understood in their ordinary and common signification, or as defined by the courts in construing statutes. Power granted to a municipal corporation to grant licenses to retailers of liquors, and to regulate them, does not confer power to prohibit, either directly or by a prohibitory charge for a license. Town of Marion v. Chandler, 6 Ala. 899; Ex parte Burnett, 30 Ala. 461; In Joseph v. Randolph, 71 Ala. 499, it is said : “A constitutional right, though subject to regulation, can not be impaired or destroyed, under the devise or guise of being regulated.” To regulate the sale of liquor implies, ex vi termini, that the business may be engaged in or carried on, subject to established rules or methods. Prohibition is to prevent the bnsiness being engaged in or carried on, entirely or partially. The two purposes are incongruous. A title which expresses a purpose to regulate, gives no indication of a purpose to absolutely prohibit. We are constrained to hold the act unconstitutional.

In Miller v. Jones, the judgment of the Circuit Court must be affirmed.

The case of Jones v. Miller, which was submitted at the same time, is on appeal from the judgment of the Probate Conrt denying the motion to vacate the order for an election, and to quash the proceedings. After the appeal was taken, but before the transcript was filed in this court, the certiorari was sued out, and the judgment of the Circuit Court obtained. This was a waiver of the appeal, and it must be dismissed.