
    J. J. House v. The State of Mississippi.
    1. Statutes : repeal by implication. — Statutes are not considered, to be repealed by implication unless the repugnancy between the provisions of the new and former statute be plain and irreconcilable.
    2. Same: in pari materia to ^e construed together. — Statutes relating to the same subject-matter must be considered together, and must-be so construed as to give force and effect to all.
    3. Corporations : implied powers. — In order to derive a power by implication, it must appear that the power thus sought to he implied is so necessary to the enjoyment of some specially granted power, that without it that right must fail.
    4. License to retail vinous and spirituous liquors : power of mayor . AND ALDERMEN OF THE CITY OF HOLLY SPRINGS TO GRANT. — By the amendment of the charter of the city of Holly Springs, passed November 19 th, 1857, the rngyor and aldermen have the exclusive right to grant licence to retail vinous and spirituous liquors within the corporate limits. This power must be exercised in accordance with the requirements of art. 4, pages 197-8, of the Revised Code, and a grant of license, without the petition of a majority of the legal voters resident within the city, is null and void.
    Error to the Circuit Court of Marshall county. Hon. Alexander M. Clayton, judge.
    
      Feather stone, Hcvrris Watson for plaintiff in error.
    We insist, that the general law to be found in the Revised Code, on page 197, regulating the grant of licenses to retail, and wliicli requires tlie applicant to be recommended by a majority of tlie legal voters in tbe town, city, or police beat, as a suitable person, &c., lias no application- to this ease. That this general act has been repealed by a subsequent act, at least in its application to the city of Holly Springs. The act of November 19tb, 1857, amendatory of the several acts incorporating the city of Holly Springs, repeals this general act in its application to this city. See Pamphlet acts of 1857, page 91. The 29th section of this act, on page 96 of Pamphlet acts for 1857. gives the mayor and aldermen of Holly Springs the exelusi/oe right to grant licenses for the sale of vinous and spirituous liquors within the corporate limits of the same, and for a period of more or less than one year, and on such terms and restrictions as the mayor and aldermen may prescribe. See section 29 of this act, on page 96.
    Here the exclusive right is given to the mayor and aldermen to license retail houses- in the city of Holly Springs, for a longer or shorter period than one year, and on such terms, and under such restrictions, as they may prescribe. It seems to us, that the language employed here, in section 29, gives the mayor and aldermen all power over this subject of licensing retail houses within the corporate limits of Holly Springs. Everything on this subject 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, then, must be untrammelled and unrestricted in the hands of the corporate authorities. It cannot be clogged, encumbered, or in any way controlled or restricted by the provisions of the general law previously 'passed, requiring the applicant for license to be recommended by a majority of the legal voters, &c. The terms and provisions of this law are directly in conflict with the general law relied on by the State. This law gives the mayor and aldermen the'right to prescribe the terms on which licenses are to be granted, and to impose all necessary restrictions. The general law prescribes the terms and imposes the resti'ictions itself, and.thus settles all questions which are left to the corporate authorities by the act of November 19th, 1857. Both laws cannot stand; they are repugnant and irreconcilable. The terms employed by the legislature in the act of November 19th, 1857, show very clearly that it was the intention of the legislative mind to repeal all laws on the subject of licensing retail houses in the city of Holly Springs, and to vest all power on that subject in the mayor and aider-men of that city, to be exercised within their corporate limits. •The terms employed — “ exclusive right,” are not without judicial 'interpretation. These terms are defined with masterly accuracy in the case of Ogden. v. Gibbons, 5 Johnson’s Chancery Reports, 159, 160, 161, and 162. The principle was the same in that case as in this, and Chancellor Rent is the expounder of the láwi in' that case.. The same construction is placed on these terms in 3d George, Semis v. Beatty, 84, 85, &g. Indeed, there- can be no doubt but that, according to the well-established rules of construction, the general law on the subject of retailing, which requires applicants for license to be recommended by a majority of the legal voters,-&e., is repealed by the special and subsequent law of November I9th, 1857, so far as the city of Holly Springs is concerned. -“-It is well settled, that a subsequent statute, which is clearly -repugnant to a prior one, necessarily repeals the former, although it do not do so in terms; and even if the latter statute be not-repugnant in all its provisions to the prior one, yet if the latter statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals- the original act.” Sedgwick on Statutory and Constitutional Law, 124, 125, and 126. The 29th section of the act of November 19th, 1857, was intehded to prescribe the only rule on the subject of granting licenses to retail in the city of Holly Springs. The legislature evidently intended, when they used the language ‘ “ exclusive right” to license, &c., to vest in the corporation of Holly Springs all power over this subject, to remove all obstacles, to repeal all laws in conflict with- -this 29th section of the act of 1857. The license granted to the appellant by the mayor and aldermen of Holly Springs on the 2d of August, 1866, is therefore valid, and furnished the defendant a good defence to this prosecution.
    
      O. E. Hoolcer, attorney-general, for the defendant in error.
    The simple question presented to the court by the assignment of errors made in this case is, whether the act of -1857 repeals the general license law, adopted originally in 1842, amended in 1854, and finally consolidated in the Revised Code of. 1857, chap. 2^, p. 197.'
    It is a well-settled rule that all statutes must be construed in connection-with previous laws in-relation to the same subject-matter, and that all such acts are to be taken together, as if they' were one law-. ' -
    
      Another well settled rule is, that where rights are infringed and fundamental principles overthrown, and the general principles of the law departed from, a legislative intention to repeal a former law must be expressed with great clearness, and not left to doubtful implication.
    I cite the court to 1 Black. Com. p. 89; to 4 How. Supreme Court U. S. Rep. p. 53 and 54; 1 Wis. R. p. 513, to show that the subsequent act of 1857 does not abrogate the general provisions of the license law of the State, inasmuch as there is no repeal in terms, nor by necessary implication or intent, nor is there any negative of the rights, duties, and powers conferred upon corporate cities and towns by the general law.
    In the case of the Planters' Bank v. State this court has said: “ Statutes are not considered to be repealed by implication, unless the repugnancy between the new provisions and the former statute be plain and unavoidable.” 6. S. & M. Rep. 632.
    To the same point I cite the same opinion of this eoui-t in the case of White v. Johnson, 30 Miss. Rep. 583.
    Finally, I cite the court to the decision of this court in a recent case involving precisely the case at bar, with the exception that there is no special act in the case of the city of Jackson. I allude to the case of the Mayor and Aldermen of the Git/y of' Jaekson v. James M. Bowman, 39 Miss. Rep. p. 671, where the power, right, duties, and obligations of the corporate authorities of cities and towns under the general law underwent an elaborate investigation. Nor is it conceived that the principles laid down in this case would be at all varied, had there been precisely such a special law in reference to the city of Jackson, as there was in this ease.
    It is apparent that it was the purpose and intent of the legislature to vary and change the license laws as to the city of Holly Springs, to this extent, and to this extent only — that the corporate authorities of said city should have power to license “ for a longer period than one year, under such restrictions as they saw fit to impose.” But by no means was it intended to invest them with absolute discretion to disregard the will of the majority of the voters of said city, as to who was á proper person to receive license, and much less did the legislature in tend to clothe the mayor and Board of Aldermen of the city of Holly Springs with authority to sell a monopoly of the liquor trade to whom they might see proper, in contravention, and indeed in direct opposition to the general policy which prevailed throughout the State of Mississippi.
   Shackelford, C. J.,

delivered the opinion of the court.

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 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 “ exclusive right ” to sell vinous and spirituous liquors within the corporate limits of the city of Holly Springs, for the term of seven years from the date thereof.

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 O. 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 Rev. Code, 197,8, 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 defence to the indictment.

The instruction is in these words: Unless the jury believe from the evidence that a majority of the legal- voters of' the city of Holly Springs petitioned the mayor and aldermen to grant to Bradley, House & Dunn a license to retail vinous and spirituous liquors,- for a term of seven years, recommending them to be of good reputation and sober, and suitable persons to receive sucb license, and that said petition was presented to said board and filed, and lay over one month for consideration, and for counter-petitions, that said license so granted by said board of mayor and aldermen, of the 2d of August, 1866, would not authorize the sale by defendant of spirituous liquors in less quantities than one gallon in the city of Holly Springs, unless the jury believe that said liquor was sold by defendant as a druggist, and for medicinal or culinary purposes, and none other.”

It is contended by the counsel for the plaintiff in error with great earnestness, that “ section 29th ” 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 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. 4th of said statute.
That this section 29th 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 aider-men ; 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 untrammelled and irresistible in the hands of the corporate authorities.”

We cannot recognize such power in the mayor and aldermen of Holly Springs as is given to them, by the construction placed upon “sec. 29th,” by the distinguished counsel for plaintiff in error.

In construing this section 29th in question, if attainable, we should consider the reasons, or considerations, moving the leadslature at the time of .the passage of the act; and of the laws in force at that time.

By the Rev. Code of 1857, p. 197, art. 2, “the boards of county police had the exclusive right to grant and issue licenses in their respectives counties, a/nd 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 aider-men 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 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 subjeet.

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 vinorrs 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 asking for special legislation. If this is so, is it reasonable, 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 mayor and aldermen the right to make contracts, grant licenses, rights, and franchises, to individuals such as they might select to be the recipients of/their borinty — securing to them monopolies and exclusive privileges in the sale of spirituous liquors at retail, &c., irrevocable, and for a long term of years ?

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, byrthe 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 Nov. 19th ” 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. Jn the use of the language in section 29, “ shall have the exclusive right to grant licenses for the sale of spirituous and vinous liquors withm 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 should 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 regardsythe 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 or more than one year, under such terms and -restrictions as may be pre- • scribed.” 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 Mississippi, 6 Sm. & M. Rep. 632, lays down this rule for the construction of statutes. “ Statutes are not considered to be repealed by implication unless the repugnancy between the new provisions- and the former statute be plain and^ unavoidable.”

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 herein before cited, appearing-in-séction 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, Revised 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 l’ight 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, in 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 exclusvoe 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 of Holly Springs, in granting the license to plaintiff in error, et al., was not derived by implication. Therefore the issuance of the license in question without observing the prerequisites prescribed in art. 4, Rev. Code, 197-8, was a plain and palpable violation of their public duty.

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 Holy 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.”

We 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.  