Evening journal., 1914-06-11

Ntelk OF tne feacc Was ulFecteu 70
issue a proper license to the applicant
for the Term OF one year.
1T will be seen from the above that
the only expression in the act in re-
gard TO the powers OF the Court, is
that certain discretion is given the
Court IN relation TO the approval or
disapproyal Of an application; and
also that they might hear remon-
stances. and hear evidences and
argument upon applications. and for
this purpose to establish general
rules So the question arises, as to
whether or not the Court did not also
necessarily pass upon the question OF
the suhielency Of the designation of
the place aud the description OF the
house, and having approved the ap-
plication, and such approval being
the judgment of a Court of competent
jurisdiction, can the question be
raised oollaterally, such as in pro
secution for selling Intoxicating
liquors without a llcense2 The an-
thorties are not in accord upon the
question
"As a general rule, the authorities
agree that petition or application
must allege all the facts which the
statutes make conditions precedent to
the granting OF license tl7 Am. &
Eng. ELc. cf Law, p. 243, -.
1T Is held in some jurisdictions
that "a license issued without the
statements required by statutes TO be
made In the application is necessarily
void anG affords no protection TO the
licensee': that A license issued with
out proper application is void' tina.
A license issued without the required
number of persons as signers is void
and affords no protection TO the
seller (Hillsboro Y. Smith, ITO n.
Car 41T); that License issued with
out the required recommendations Is
void Estate vs.. Higgins, H. Mo. App.
1907 that A license which does not
specify the place OF business is defec-
tive and affords no protection TO the
licensee although the defect is the
fault of the board granting IT. (Com.
V. Merriam, 1876 Mass. 433) that A
person Is not protected from criminal
prosecution by a license which Is
void on its face, as from an evident
want Of authority to issue 1t, or where
it is affirmatively shown to have been
issued without compliance with the
statutory requisites. But a license
Is not invalidated by mere irregu-
larities in the proceedings leading TO
its issue, nor it seems, by fraud, un-
less practised by the party to whom
it Is issued (23 Cyc 109).
After quoting the case Of Merriam,
| 1876 Massachusetts, Judge Church
man says:
THE great weight Of the authority.
however, supports the doctrine that
license which appears on its face
to have been regularly issued, Is not
subject to a collateral attack, as IN
| a prosecution for illegally selling, on
the ground that it was improperly
granted. Ii the license Is not re-
voked, and there is no other legal
/ proceeding taken from the judgment
of the Court granting the license, It
must be regarded as a valid license,
and as affording protection to the
holder against a prosecution for acts
which without its sanction would be
I illegal"
/ Judge Churchman quotes FIVE cases
/ in different states and observes
The above cases are liquor cases
In which the question was passed
4 upon. There seems to be no valid
reason why the statutes in relation
TO Intoxicating liquors should not be
< construed the same as other statues
THE Court OF General Sessions,
under the powers granted TO that
Court, in relation to licenses. have
I been given a discretion in the matter
! Of granting licenses. These provi-
I sions, at once, establish the act in
4 the granting or refusing of license,
/ as judicial act, and not as mere
ministerial act, in which there is no
( discretion
1T is clear to my mind, that the
I writing of the word Approved on a
/ LIQUOR license petition, is a Judgment
Of the Court of General Sessions, be-
cause il is the decision given by the
Court as the result of the proceedings
/ instituted in that Court. and clearly
/ falls within the definition OF judg-
ment, above given.
1T IS also clear that the Court of
/ General Sessions has jurisdiction
I over the subject-matter of the license
and of the parties interested, there
I fore, 1t must follow under the COM
mon law rule, that its judgment can
not be questioned collaterally.
1T is also apparent that having
rendered this judgment, that is hav-
! ing approved petition for a license
+, and the license thereafter having
/ been issued In accordance with thu
provisions of the statute, under the
rule above laid down, 1t would be inn
material, once the Court has reached
its judgment, how grossly irregular
or manifestly erroneous this decision
may have been; nevertheless that
+, Judgment is not subject 10 attack, az
cept in a direct proceeding for thar
purpose, either before the Court zen.
dering the judgent or in an appellate
court
The reason assigned for this rule
is one of public policy, and is in
tended To give permanency to judicial
transactions and to rights acquired
! Hereunder. For if judgments OF
courts OF competent jurisdiction could
be subject to attacks in other pro.
ceedings there would be no certainty
and security in judicial actions This
rule only applies where a court has
jurisdiction of the subiect-matter and
the parties If the court does not
have jurisdiction, its judgments and
orders are held to De mere utilities
and subject to attack in every court
in which they are presented.
$50 the question is to be deter
mined, rs to whether OF not the Court
of General Sessions has jurisdiction
of the subject-matter of the granting
of these licenses. within the meaning
of the above rules, and it is obvious
that the Court Of General Sessions
has such jurisdiction.