The opinion
On Rehearing.
Upon the original consideration of this case, this court was of the opinion, and so held, that under the undisputed facts, "the prosecution of this appellant therefore was premature, and improvidently begun," and as authority we cited, and quoted in full, Section 49 of the Alabama Beverage Control Act, Code 1940, Tit. 29, § 66, as will be noted in the original opinion, supra.
Upon consideration of the case, on application for rehearing, the judges of this court were unable to reach an unanimous conclusion or decision, whereupon resort was had to the provisions of Section 7311 of the Code 1923 Code 1940, Tit. 13, § 88. The said section reads as follows: "If the judges of said court [Court of Appeals] are unable to reach an unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the supreme court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the supreme court shall give its opinion upon the question so certified, and the opinions thus given by the supreme court shall be given the same effect by said court of appeals as it is required to give to the decisions of said supreme court."
The following certification was made to the Supreme Court, viz.:
"To the Supreme Court of Alabama:
"Under the provisions of Section 7311 of the Code of 1923, I hereby certify to you the sole question involved upon the appeal in the case of Larry Hardin v. State, from Madison Circuit Court, pending here on application for rehearing.
"The specific question involves the construction of Section 49 of the Alabama Beverage Control Act, as will be noted in the two opinions of the judges of this court. Said opinions are hereby transmitted to you as being the best manner of stating the disagreement of the judges of this court upon which this certification is rested.
"This December 30th, 1940. "(Signed) C.R. Bricken, "Presiding Judge."
In response to said certification, the Supreme Court transmitted to this court the following opinion.