Metcalf v. State

¶1Metcalf was indicted for retailing spirituous- liquors in Chattahoochee county without a license, and he was convicted. The acts of 1873, p. 271, and 1875, p. 330, require a person who desires to sell spirituous liquors to get the consent of two-thirds of the freeholders residing within three miles of the place at which he proposes to do business for six months prior to the application to petition the ordinary to grant the application. Metcalf presented his petition, purporting to contain the requisite number of freeholders so resident. The ordinary after this discovered that the petition did not contain the names of two-thirds of the freeholders residing within three miles of the place of business of Metcalf, and he revoked the license, and Metcalf continued to retail. Under these facts, the judge charged the jury, if Metcalf had not procured the consent of two-thirds of the freeholders within three miles of his place of business, who had resided there for six months before his application, then the license issued to him was void, and he would be guilty if he did retail spir. ituous liquors. This charge is assigned as error.

¶21. We think the charge was right. The ordinary, in issuing the license, acted as a mere ministerial officer; he had no authority to grant the same, except the petitioner complied with the prerequisites provided by law, and if he did, the license was a mere nullity. It did not require any revocation, but it was void. He is presumed to know what *310the law required, and a failure on his part is at his'peril. See the decision of the -Supreme Court of Alabama in the case of Russell vs. The State of Alabama, 77 Ala., 89; State vs. Moore, 1 Jones, Law, (N. C.) 276; 41 Miss., 737; 25 111., 197.

¶32. It is insisted that the charge of the court, that if a license was issued to Metcalf to sell spirituous liquors upon a petition purporting to contain two-thirds of the freeholder’s residing within three miles of the place'of business of the accused for six months prior to the application, and. the ordinary really did believe the petition contained the requisite number of freeholders, and afterwards the ordináry becatae satisfied that, the petition did not contain the requisite number, and that the defendant did not have the consent of two-thirds of such freeholders, and the ordinary revoked the license and defendant afterwards sold liquor, he would be guilty of the crime charged.

¶4While we think that it made no difference whether the ordinary revoked the license or not, that, as the defendant had to have the consent of the freeholders mentioned in the act, or the license would be void, and if he sold the liquors, he would be guilty; yet we see no such error in this last charge as to require a reversal, for the charge is particular to state, “ And the defendant did not have the con-' sent of two-thirds cf such resident freeholders.” The charge was based upon the hypothesis that the defendant did not have the requisite two-thirds of freeholders residing within three miles of the place of defendant for six months before the ajjplication. While it would perhaps have been better not to have alluded to the revocation of the license'by the ordinary, as the same was immaterial, it did the accused no harm, because the judge told the jury, if the revocation was had because the requisite consent of freeholders had not been obtained, then if defendant sold spirituous liquors, he Avas guilty; and this is true, Avhether the license was revoked or not.

¶5Judgment affirmed.