2 Morr. St. Cas. 1536 | Miss. | 1872
The plaintiff in error was tried upon- an indictment for selling vinous and spirituous liquors in a less quantity than one gallon (not being a druggist, and without license therefor) within the limits of the corporation of the city of Holly Springs, found guilty,-and sentenced by the court. Motion for a new trial overruled, and exceptions taken to ■ the ruling, and allowed by the court.
This writ of error is prosecuted-to reverse this judgment.
There was an exception taken .to the ruling of the court, in granting the only instruction offered by the state, which is made the ground for the first assignment of error: “ That the court below improperly instructed the jury,, at the instance -of the state.”
We shall only notice this ground-of error, as the whole case turns upon this instruction. - ■
The selling of the liquor, as charged, was proven and admitted.
The selling was justified by the plaintiff in error.
- • The plaintiff in error read to the jury a license issued to the plaintiff in error, John Bradley, and William C. Dunn ^partners of plaintiff in error), on the 2d day of August, A. D. 1866, by the mayor and aldermen of the city of Holly Springs, granting said parties the £i exokcsi/ee right ” to sell vinous and spirituous liquors within the corporate limits of. the city of
The license was. issued to the plaintiff in error and his partners, in consideration of their undertaking to build a first-class hotel in the city of Holly Springs by the 31st day of December, 1867. This, license was granted on the petition of the said J. J. House, John Bradley, and William C. Dunn, none of the citizens or legal voters of the city of Holly Springs joining in the said petition.
It was admitted, that - the petition was acted upon without lying over one month for the coming in, of counter petitions, &c.
The plaintiff in error introduced and read to the jury a license issued to John Bradley, —— Phillips, and'-• Farrington, by the mayor and aldermen of Holly Springs, dated the 18th of January, A. D. 1858, in consideration of said parties agreeing to erect a .first-class hotel, in said city by the first day of July, A. D. 1859.
. It also, appeared in said license last introduced that the petition for the grant .of the same was signed by a majority of the legal voters of the city of Holly Springs, and that the petition was filed and laid over for. consideration for- one month, and the reception of counter petitions, before being acted upon.
This-license to Bradley, Phillips and Farrington .to sell vinous and spirituous, liquors was. for the term of ten years, the “ exclusive right ” secured to .them “ as a personal privilege, not transferable to another.” John Bradley, one of the partners of plaintiff,-is the same person named to .whom the first license was issued. Bond offered also in evidence and read to the jury is .conditioned according to the requisitions of the statute of Bev. Code, 197, 198, regulating the retailing of spirituous liquors in this state.
.... The:instruction asked .by the state, and given by the. court to the jury, with reference to the foregoing evidence, and excepted to by the. plaintiff in error, presents really the whole question for determination by the court. It presents fully the question of the validity of the license of 2d August, 1866, relied upon by the plaintiff in error as his defense to. the indictment.
It is contended by the counsel for the plaintiff in error, with great earnestness, that “ section 29,” of the “ act to amend the several acts heretofore passed by the legislature, incorporating the town of Holly Springs, in Marshall county,’’ which is in these words:
“ Sec. 29. The mayor and aldermen of said city shall have the exclusive right to grant licenses for the sale of spirituous and vinous liquors within the corporate limits of the same, and such licenses may be granted for a period less or more than one year, under such restrictions and terms as may be prescribed ” —passed 19th of November, 1857 — repeals so much of the general statutes regulating the-sale of vinous and spirituous liquors in Rev. Code, pp. 197-8, as is prescribed in Art. 4 of said statute.
That this section 29, of the act of November, 1857, “ gives all power over this subject of licensing retail houses, within the corporate limits of Holly Springs, to the mayor and aldermen; that everything-is left to the. discretion- of the corporate authorities. ■ .
“ They prescribe the terms on. which licenses are to be granted, and impose the restrictions deemed necessary. This right must be therefore untrammeled and irresistible in- the hands of the corporate authorities.”
We cannot recognize such power-in the mayor and aldermen
'■ In construing this section 29,-in question, if attainable,-we 'should consider the reasons or considerations moving the legislature at the time of the passage of the act; and of the laws in force at that time. • - -
By the Bevised Code of 1857, p. 197, aft. 2, “the boards of county police had the exclusive right to grant and issue licenses in their respective counties, and in the towns of the state where "the inhabitants- of the same did not reach the number of two thousand. That in .towns-where the population amounted to two thousand-or more, if incorporated, the mayor and-aldermen of said towns had the exclusive- privilege of issuing such •licenses.”
If the town of Holly Springs had, at the time of the passage -of the act amending its charter, on the 19th of November, 1867, two thousand inhabitants within its' corporate limits, is it reasonable to suppose the legislature would have passed such an ■act % By the general law of the Code (p; 197) they had that 'power, being an incorporated town, without any special legislation on 'the subject. ■
‘ No necessity existed for' such legislation, if there were two thousand inhabitants within the corporate limits of Holly ‘Springs.
The presumption is, that at-the passage of the act in question, the town of Holly Springs had not two thousand inhabitants within its corporate limits, and that the act was passed as a ‘‘special privilege and favor to the people of that town, allowing them' to regulate the issuance of licenses for the -sale or- retailing of vinous and spirituous liquors exclusively.
' The legislature, in- the passage of such acts, is presumed to be directed and influenced by the public sentiment and wishes of the people - ashing- for special legislation. If this is so, is it feaáonable or reconcilable with common sense, to assume that the inhabitants of Holly Springs asked for the passage of an act empowering their mayor and aldermen to disregard the united *will of the inhabitants constituting their- corporation, giving, the
• No such assumption of authority could have been contemplated by the legislature when they passed the act; or by the people of Holly Springs, when .they asked for their charter to-be amended, making them a city, as has been exercised by their mayor and aldermen in the grant of the license in question.
The idea that the legislature intended to clothe the mayor and aldermen of the city of Holly Springs, by the passage of, “ section 29,” with absolute power in the matter therein legislated upon, or that the inhabitants of the corporation should be at the mercy of their officers,,irresponsible to their creators, cannot be tolerated.
There is nothing in the “ act of November 19,” which shows that there were two thousand inhabitants within the limits of. the corporation, at the time of the passage of the act referred to. In the use of the language in section 29, “ shall have the -exclusive right to grant licenses for the sale of spirituous and. vinous liquors within the corporate limits of the same,” the legislature only intended to exclude the board of county police of Marshall county from the' exercise of their legitimate jurisdiction within the limits of the town of Holly Springs, in case, it shordd be found there were not two thousand inhabitants within its corporate limits.
If we are right in our view of this section of the statute, the corporation and the corporate authorities of the city of Holly Springs, as regards the right to issue licenses for the sale of spirituous liquors 'within its • corporate limits, stand precisely in the situation of any -incorporated town in the state with, a population of two-thousand inhabitants, except-'in this particular : “ such licenses' may be granted for 'a period less ■ oí more than one year, under such terms and restrictions as maybe prescribed.” This privilege of issuing the licenses for a period different from the general law is granted "by section 29.
This court, in the case of The Planters’ Bank v. State of
Another well-settled rule is, that all statutes must be construed in connection with previous statutes and laws in relation to the same subject-matter, and that all such are to be taken together, as if they were one law, and that if they can stand together, they will be so construed.
In what particular are the provisions hereinbefore cited, appearing in section 29, antagonistic or repugnant to the general prerequisites to be observed and performed before the issuance of a license to retail vinous and spirituous liquors, as is required by “ article 4,” pp. 197-8, Eevised Code, which are, that the petition must be signed by a majority of the legal voters, residents within the corporate limits of the town in which the liquor is to be sold; that all such petitions, after being presented and filed, shall lie over one month for consideration; and the reception of counter-petitions, before being acted upon, &c. ? We are unable to perceive anything that indicates repugnancy.
Then their right to exercise absolute power — a power not specifically granted by the charter — can only be derived by implication. It has been repeatedly held by this and other courts of last resort, that in order to derive a power by implication, it must appear that the power thus sought to be implied is so necessary to the enjoyment of some specially granted right, that without it that right must fail.
What is the granted right under this section 29, which must fail, unless the mayor and aldermen exercise absolute power, independent of the public will of the inhabitants of the corporation, i’n the grant of licenses, &c. ? We can perceive none.
What right was saved by the grant of license to the plaintiff in error and partners for the term of seven years, giving them the exclusive right to sell vinous and spirituous liquors within the corporate limits of the city of Holly Springs? We are at a loss to perceive any.
This exercise of absolute power by the mayor and aldermen
They had no power, using the language of Justice Harris in his opinion in the case of The Mayor and Aldermen of the City of Jackson v. James H. Bowman, 39 Miss., “to sell a discretion and authority specially delegated to it, to be-used for the public good, and thereby prevent itself from the further exercise of such discretion and authority,. from time to time, as the exigencies of the country might demand. It was not in its power, by contract, to divest itself of this public ■ official duty irrevocably for a term of years, for private benefit or local' advantage.”
The provisions of this license, the contract, and the consideration of the same, .are in all respects as objectionable as those in the case of The Mayor and Aldermen of the City of Jackson v. James H. Bowman.
The mayor and aldermen of Holly Springs could not dispense with the prerequisites prescribed by the general act, pp. 197-8, Rev. Code, art. 4, and their action in the grant of the license in question was without authority, in violation of Art. 4, referred to, and therefore void.
Though not authority binding on their successors, the first mayor and aldermen, elected within two months after the passage of the amended charter, November, 1857, in the grant of the license to Phillips, Bradey, and others, construed their powers and their duty to the inhabitants of the corporation correctly. That license, it will be seen, Was granted in conformity with the requisitions of “ Art. 4, p; 198, Rev. Code.”
¥e are of opinion, that the view of the law applicable to'the testimony in the case, taken by the able jurist who presided at the trial in the court below, was correct, and that the instruction objected to was properly given. The judgment should not be disturbed.
Let the judgment be affirmed.
