The circuit court committed no error in refusing to refer to the jury the question of the forfeiture, by non-user or otherwise, of the charter and franchise granted by the act entitled “An act to incorporate the Fort Browder male academy, in Barbour county,” approved February 8,1858, Acts 1857-8, p. 85. That question could only be inquired into and determined in a direct proceeding instituted in the name of, and by the authority of, the State.
The franchise granted by said act could not be collaterally assailed on the trial of this indictment. — The State v. Moore & Ligon, 19 Ala. 514; Angell & Ames on Corporations, § 777.
2. Nor was there any error in the charge of the court, that said act would continue in force until repealed by the legislature, or until the charter thereby granted was vacated by a judicial proceeding instituted for that purpose.
3. As the defendant admitted that he sold spirituous liquors at the time, place, and to the person charged in the indictment, the court properly charged the jury, that if they believed the evidence, they must find the defendant guilty. The license issued by the probate judge was no defense for selling spirituous or vinous liquors within the limits specified in said act, except for medical purposes.
4. The constitutionality of special acts of the legislature prohibiting the sale of spirituous liquors, &c., within certain districts, or within a certain distance of places *212named in such acts, except for medical purposes, &c., was settled by this court in the ease of Dorman v. The State, 34 Ala. 216.
For myself, I do not approve of that decision, and think it would have been better if it had declared such acts unconstitutional ; but that decision has been acquiesced in from that time to this, and we are not now disposed to disturb it.
Let the judgment be affirmed, at appellant’s costs.