McCullough v. Blackwell , 51 Ark. 159 ( 1888 )

COCKRILL, C. J.

To sustain the certiorari, it is argued that the circuit court acquired no jurisdiction to reverse the order of the county court refusing the prayer of the local option petitioners, because the law makes no provision for appeal in this special statutory proceeding. Our decisions do not sustain the position. Appeals from all judgments of county courts to the circuit courts, under such regulations and restrictions as the legislature may prescribe, are guaranteed by the constitution. Art. 7, sec. 33. In practice, the terms of the act passed in aid of this provision of the constitution, has been applied habitually in special proceedings where the statute regulating them contains no provisions about appeals. Mans. Dig,, sec. 1436; Levy, ex parte, 43 Ark., 43; Phillips County v. Lee County, 34 Ib., 340; Dodson v. Fort Smith, 33 Ib., 508; Williams v. Citizens, 40 Ib., 290; Trammell v. Bradley, 37 Ib., 374; Boyd v. Bryant, 35 Ib., 69.

1. ThreeMile Law: procee d-Most nearly analogous to this case of any in which . . ,. _ . , _ - question is discussed, is that of Levy, ex parte, supra, where -a petitioner, whose prayer for the issuance of a license to sell liquor had been denied by the county court, was permitted to prosecute his appeal. In Miller, ex parte, 49 Ark., 18, the petitioner’s right of appeal to this court from an order of the circuit court refusing to put the three mile law in operation, was silently recbgnized, as it had been previously in Williams v. Citizens, supra, from the county to the circuit court. The petitioners in such cases, like the liquor dealer in Levy’s case, are parties to the record by virtue of the statute, and their right to test the validity of the proceeding by certiorari or appeal, is clear. But no provision is made by the statute for a remonstrance against the issue of a license where the county court is authorized to issue licenses, nor is provision made for a hearing of those who desire to oppose the prayer of a petitioner under the local option law. The right of remonstrance has nevertheless been ruled to exist in the former case (Austin v. Atlantic City, 48 N. J. Law, 118 ; Dufford v. Nolan, 46 Ib., 87; Ferry v. Williams, 41 Ib., 332), as it unquestionably does in the latter. Williams v. Citizens, 40 Ark., sup. As against the petition to prohibit the sale of liquor, the licensed dealer, or any one who has taken the necessary steps to procure a license, who moves, to be made a party for the purpose of showing that the petition does not contain a majority of the signatures, legally obtained, of the adult residents of the district, does not manifest the impertinent interference of a stranger without interest, and when made a party by order of the court, may sue out a writ of certiorari or prosecute an appeal from the-judgment thereafter rendered, just as the petitioners may do. Ferry v. Williams, sup.: Miller v. Jones, 80 Ala., 89; McCreary v. O'Flinn, 63 Miss., 204. The right to prosecute an appeal on the part of the liquor dealer was recognized by this court in the case of Boyd v. Bryant, 35 Ark., supra, and in Williams v. Citizens, 40 Ib., sup., and we affirm those rulings.

2. Same: Withdrawal of petitioner. 2. The question arising on the appeal is this: Where a petition to put the three mile law in force has been acted upon by the county court, and an appeal from the order prosecuted to the circuit court, has the petitioner the unqualified right to withdraw from the petition in the circuit court?

The question is answered in the negative by the decision in Williams v. Citizens, sup. Speaking of the right of apetitioner to withdraw from the petition in the county court — the court of first instance — it is said that if the original signatures were obtained intelligently and without fraud, and have not been erased before presentation, or afterwards by leave of the court for cause, they fulfill the requirements of the statute. See Grinnell v. Adams, 34 Ohio St., 44; Hays v. Jones, 27 Ib., 218; Dutton v. Village of Hanover, 42 Ib., 215.

The presentation of the petition is in the nature of an election. When the county court has acted, the votes have been cast and the election returns made, and an appeal does not invest the petitioner with the power to change his vote or to withdraw it except for good cause, as 4s indicated in Williams v. Citizens, supra. While the circuit court tries the issue on appeal, de novo, it can award or refuse a prohibitory order only upon the petition as signed when acted upon by the county court.

3. Same: Remonstance. No cause for striking from the petition the names to which objection is made, was offered or shown. The remonstrance alleged that they were unduly obtained, but that the tions of the remonstrance are not evidence was decided in Williams v. Citizens, supra. No proof was offered to sustain the allegation.

Let the judgment be affirmed.