McCrary v. Sands

1 Miss. Dec. 226

• Court: Mississippi Supreme Court
• Decided: February 22, 1886
• Status: Published

Opinion

Opinion.

Arnold, J.,

delivered the opinion of the court:

The opinions in McCrary et al. v. T. O’Flinn, and McCrary v. Rhodes and Silk dispose of this case. Appellants, as legal voters and residents of West Point, were signers of a general petition against the issuance of license to sell liquor in the city which, it is alleged, have been disregarded by the mayor and selectmen in granting license to Sands and Thompson. Under the circumstances, it was competent for appellants to prosecute a writ of certiorari to review the action of the major and selectmen in granting such license. But the action of the mayor and selectmen on the general petition against license cannot be reviewed in this cause and leaving that out of view and confining our examination to the record of the proceedings of the municipal authorities in granting license to Sands and Thompson, we find that it does not appear from the record or from the petition of Sands and Thompson for license that they or either of them were residents of the city of West Point. This rendered the action of the mayor and selectmen, in the premises, invalid, and the license issued, void, for reasons stated in the opinion in B. E. McCrary et al. v. Rhodes and Silk et al., above referred to. The judgment is reversed and the proceedings of the mayor and selectmen as to the license granted to Sands and Thompson are quashed and held for naught.

The law involved in this case is section 1103, Code of 1880.

In the absence of power conferred by statute or charter, municipal authorities cannot grant and sign bills of exception when exercising the power to grant license to retail liquors. Its decision is final as to questions of fact, though errors of law apparent in the record of the proceedings may be corrected by certiorari. Jane v. Alley, 64 Miss. 446.

And since no appeal is provided from the order of municipal authorities, acting under section 1103, Code of 1880, on a petition and counter petition for •license to retail liquors, a writ of certiorari may be awarded by the Circuit Court to correct errors of law apparent on the face of their proceedings. Corbett v. Duncan, 63 Miss. 84; Loeb v. Duncan, 63 Miss. 89.

One pending his petition for license to retail cannot maintain certiorari from a general order refusing to grant any license within the municipality within twelve months, for until there is action on his petition there is no judgment against him which he can have reviewed. Lexington v. Sargent, 64 Miss. 621.

None but parties to the record sought to be reviewed can maintain certiorari. Hence, persons, though voters of a municipality, who are not in any way parties to proceeding before the authorities thereof, who are not signers of a counter petition against issuance of license to the applicant, nor of a general petition against the granting of license, are not entitled to have proceedings resulting in a grant of liquor license reviewed. McCreary v. O’Flynn, 63 Miss. 204; Lexington v. Sargent, 64 Miss. 621.

But if a voter appears and objects to the issuance of license, he may maintain certiorari. McCreary v. Rhodes, 63 Miss. 308.

To a writ of certiorari to the authorities of a municipality directing them to send up to the Circuit Court the transcript of the record of any proceedings had before them, the only proper answer is the transmission of such transcript, and any answer touching the merits of the cause will be disregarded. McCreary v. Rhodes, 63 Miss. 308.

A license issued on a petition which fails to set out that the applicant therein presented is a “ resident ” of the municipality for which the license is to be granted, and “ of good reputation,” is void. McCreary v. Rhodes, 63 Miss. 308.

Under section 1099, Code of 1880, a license granted by the board of supervisors to retail liquors is void, unless it be shown to the board, by the petition or otherwise, that the petitioner is a “ resident ” of the county. And an objection for this, being jurisdictional, may be raised in this court for the 'first time. McGee v. Beall, 63 Miss. 455.

But the license need not specify the house where the liquor is to be sold if this is stated in the petition and order of the board. Goforth v. State, 60 Miss. 756.