I concur in the affirmance of this case, and in the opinion of the court to the effect that the statute in question was constitutionally enacted, that it is a general law and not a local one, and that for all purposes of this appeal it is a valid law. I am of the opinion, however, that what is said in the majority opinion with reference to section 11 of the act (Acts Sp. Sess. 1907, p. 75) is necessarily dictum. This section, if it has any operation or effect whatever upon the law in question, relates exclusively to the administrative features of the law. The section in question is not enacting at all. It was intended solely as a repealing section. Its only purpose, object, or possible effect is to Expressly repeal certain other laws. The most that can be said against it is that it is not so worded as to make it certain and definite as to all those laws intended to be repealed. The worst that has been, or can be, said of it, is that it may be said to attempt the impossible; that *148is, to retain in force and effect one law which, would be inconsistent with another and subsequent one. I do not think that it attempts this; but, if it does, what of it? It must necessarily fail in the attempt. This failure does not render either of the laws void or valid. They both remain as they overe before the futile attempt.
It must be remembered that this section 11 is solely and exclusively the repealing part of the statute in question. It is not at all intended as, and in fact is in no wise, an enacting part of the statute in question. It was clearly and certainly not intended to enlarge or restrict the operation or effect of the statute in question, but relates solely to other and different laws; that is, it attempts to repeal some other laws and to retain some others which would otherwise he repealed. This section may or may not repeal any other law. It may or may not retain any other one which would otherwise be repealed without the clause or section; but whatever effect it may have on other laws, it does and can have no effect on this statute in question, of which it is a part. A repealing section or clause of a statute is not a necessary part of the statute. The statute may or may not contain such clause or section. The statute is as valid without it as it is with it. — Lane v. Kolb, 92 Ala. 636, 9 South. 873. The repealing section or clause, if such there he, may be wholly valid or wholly void, without adding to or detracting from the validity or invalidity of the statute itself of which it is a part.
If the section of the act in question attempted to limit or to extend the operation and effect of the statute of which it is a part, there might be some force in the argument that it may render the statute void by converting it into a local law. Besides, being a repealing section exclusively, it reiterates and declares that, not only the statute of which it is a part shall extend to the entire *149state, and shall he given effect throughout the state, hut attempts to give effect, concurrently with it, to other local statutes which may he inconsistent in some respects with certain provisions of the general law. There is, therefore, no doubt that the general law applies to the entire state, and to every person in the state. The only doubt is whether the local prohibition laws, or parts thereof, are repealed or retained. The only possible doubt is as to the local,'not as to the general, law. The proper time to decide that question is when the constitutionality of the local law is raised and comes before us for decision.
Another potent reason why this question should not be gone into on this appeal is that the only possible con- ■ flict or trouble between the general and local laws is as to the penalty provided by the respective laws. This is conceded, and confessed by every one to be the only reason why both laws cannot be enforced in the same territory. This pertains exclusively to the administrative feature of the law. It goes alone to the efficiency of the enforcement of the law, and not to the prohibitive or inhibitive features of the law. This pertains alone to the effect and policy, and not to the validity, of the law. The law would be perfectly valid, though not effective, without any penalty whatever for its enforcement. The appellant is applying to a probate judge for a license to sell intoxicating liquors. It is of no concern to him, or to the probate judge, that no one can be convicted or punished for violating the law. The only statute authorizing the probate judge to issue him a license has certainly been expressly and impliedly repealed, and the doubtful proviso of section 11 makes no attempt to retain such statute so repealed. The probate judge, without this statute, which is clearly repealed, has no authority or power to issue a license. No court ought to *150compel him by mandamus to do that which he has no right or authority to do, nor can any court restore to him power or authority which the legislature has taken away from him. It is clearly and certainly unlawful for any person to sell intoxicating liquor's in this state. I take it that every man, woman, and child in this state, of average intelligence, who can read, knows this, as matter of fact as well as of law, if the statute in question is ■constitutionally enacted. That it provides bad penalties for its violation, or inconsistent and contradictory or absurd penalties, or no penalties at all, and that it cannot be enforced, and will therefore be a dead letter on the statute books, and though it may not deter its violation, yet it does not authorize a probate judge to issue a license to one to violate it. The last question is the only one raised on this appeal, and the only one that should be decided.
Should appellee issue a license to appellant to sell intoxicating liquors? This is the only question to be ■decided. If appellant should violate the law, and the state should attempt to punish him therefor, then will be the proper time for him to raise the validity of the law as to its penalty or punishment provided. Appellant, in an application for a license to sell liquors, has no concern with the penal laws of the state. His rights and remedies are prescribed and determined by the civil laws and remedies. Yet the most grievous part of appellant’s complaint is the fear that two' or more citizens in the future may violate the criminal laws of the state, and, if they do, that they cannot be punished without punishing them differently, because of section 11 of the prohibition statute — that this would violate the “equal protection” clause of the fourteenth amendment of the federal Constitution, as well as the provisions of the state Constitution as to the passage by the Legislature *151of general and local laws. Is this sufficient, if true, to authorize the probate judge to issue to him a license? If the license should issue, would it prevent the prospective calamity? Will it not be time enough to consider these grave constitutional questions when some unfortunate or lawless citizen violates the criminal law, and the state undertakes to punish him for his offense? Are we to pass upon these questions before they arise? Can anything we say or decide, in this case, bind or protect the state or any citizen as to his constitutional rights, if he be so unfortunate as to be put on trial for violating the prohibition laws of the state?
Appellant and the probate judge to whom he applied for a license, the circuit or city court to which he applied for mandamus to compel the probate judge to issue a license to sell liquors, and this court on the appeal, have no concern as to the prohibition law, except to determine whether or not it repealed section 5760 and subdivision 59 of section 2361 of the Code of 1907. These are the statutes with which appellant is concerned. If these statutes are now in force, he is unquestionably entitled to a license to sell liquors, provided he complies with the requirements therein specified. If they are not in force, then he has no right to a license, and the probate judge, no authority to issue same. So these are the statutes directly in question, and not the prohibition statute. If the prohibition statute in question repealed the sections of the Code expressly or by implication, then appellant was not entitled to a license, and the probate judge was without authority to issue a license. If the prohibition statute was constitutionally enacted, and as to this there is no doubt, because this court has several times decided that it was, then there can be no doubt that these sections of the Code, which alone authorize and provide for the issuance of a license to sell *152liquors, were repealed. Section 1 of the prohibition law clearly and certainly repeals' these sections of the Code by implication, and section 11 of the same act repeals them expressly. As to any question raised on this appeal, it is wholly immaterial whether the prohibition law prescribes any penalty at all, or whether it provides inconsistent or redundant penalties, which cannot be enforced without violating the federal or state Constitutions.
Hence the only question that could be properly raised or decided on this appeal, relative to the prohibition law, are: (1) Was it constitutionally enacted? (2) Did it repeal the sections of the Code authorizing and regulating the issuance of a license to sell intoxicating liquors? All other questions as to such statute are wholly immaterial, and whatever can be said in the decision of this case is purely gratuitous and mere dictum.