
    The Corporation of Aberdeen vs. John Saunderson.
    The charter of the town of Aberdeen, passed in 1837, conferred on the corporation express and sole power to grant licenses to retail spirituous and vinous liquors within its limits, and made it the duty of the mayor to fine any person, convicted before him of selling vinous or spirituous liquors without license, in violation of the act of incorporation, in any sum not exceeding twenty dollars; the act of 1839, known as the gallon law, took away from all persons in the state the capacity to be the recipients of a license to sell liquor in less quantity than one gallon ; the act ef 1842, section 1, p. 108, of the pamphlet acts, restored the capacity of all persons to obtain license to retail vinous and spirituous liquors; the act of 1846, section 7, p. 100, of the pamphlet acts, requires that all moneys arising from licenses granted to hawkers and pedlars, keepers of billiard tables, retailers of vinous and spirituous liquors, and brokers, shall be paid to the treasurer of the county in which, the same may be collected, and, together with the special' tax authorized by that act, shall constitute the school fund of the respective-counties, &c.; in March, 1846, the mayor of Aberdeen fined S. ten dollars-for retailing vinous and spirituous liquors, without license, within the corporate limits of Aberdeen; S. appealed to the circuit court of Monroe county, in which a judgment was rendered in his favor for costs, on the ground that the corporation of Aberdeen had no power to grant a license to retail vinous and spirituous liquors, and consequently the mayor had no right to impose a fine for retailing without license: Held, that the act of 1839, did not repeal the power to grant licenses conferred by the charter incorporating the town of Aberdeen, but merely suspended the exercise of such power, for the want of some subject on which it could operate ; that the act of 1842, restoring the capacity to obtain license to retail vinous and spirituous liquors, removed the impediment to the operation of the charter, imposed by the act of 1839, and left the corporation with the sole and exclusive power to grant licenses to retail vinous and-spirituous liquors within-its limits; that the act of 1846 does not interfere with this exclusive power of the corporation; nor can that act divert the amounts received for such licenses, to any other purposes than those indicated in the charter; that the judgment of the circuit court must therefore be reversed,, and judgment-entered for the fine assessed by the mayor.
    
      ERROR, from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.
    This was a proceeding had before the mayor of the town of Aberdeen, against John Saunderson, upon a charge of retailing vinous and spirituous liquors, without license, within the corporate limits of the town. The proceedings were had under the fourth section of the act of incorporation. The defendant was brought before the mayor, under his warrant, issued on the 19th day of March, 1846, and, after an investigation, the defendant was fined the sum of ten dollars. The defendant appealed to the. circuit court of Monroe county; and upon a hearing in that court, judgment was given in his favor for the costs of suit.
    The bill of exception, filed at the trial, in the circuit court, by the plaintiff, sets out all the evidence, and discloses the following statement of facts, viz.: That by the first and second sections of said act of incorporation, approved May the 12th, 1837, the town was incorporated, and authorized to elect officers. That by the fourth section the mayor, and any one or more of the aldermen, are constituted a board to transact business, and are designated by the name of the corporation of the town of Aberdeen. They have the sole power to grant license for retailing vinous and spirituous liquors, within the corporation, and of regulating the price and time of payment for the same. . The bill of exceptions further discloses the fact that the second section of an act of the legislature, approved February 22d, 1842, was also read in evidence on the trial, which authorizes the corporate authorities of every incorporated city or town in the state, having a population of two thousand or more inhabitants, to grant license to sell by retail, any quantity of vinous and spirituous liquors, within the same; and to charge and receive for such license, for a period of twelve months, any sum not exceeding one thousand, nor less than two hundred dollars. And requires that the money-for the license, and also for fines, &c., shall be paid into the treasury of such city or town. The bill of exceptions further shows, that it was agreed to between the parties, and so given in evidence on the trial, that the town had, on the 6th day of March, 1846, considerably more than two thousand inhabitants. That the census had been taken and returned, &c., and that the corporate authorities of the town had passed and published an ordinance prohibiting the retailing of vinous and spirituous liquors within the corpor rate limits thereof, without license first obtained from said corporate authorities; and that they would grant licenses to any person, properly recommended, for two hundred dollars per an-num. That the defendant, and also the board of county police of Monroe couuty, had been specially notified of the number of inhabitants in the corporate limits of Aberdeen ; and also of the passage and publication of the abovementioned ordinance. It was also agreed, and given in evidence, as appears from the bill of exceptions, that, after the notice was given to the defendant, and board of county police, as above stated, the defendant todk out license from the board of county police, and continued to retail vinous and spirituous liquors in the town; and neglected and refused to take out license from the corporate aut! orities thereof, as required by said ordinance. That the defendant obtained the license from the board of county police, before the warrant was executed on him, but after he had received the notice of the passage and publication of the abovementioned ordinance; and that he got the same for the sum of one hundred dollars. The bill of exceptions further exhibits the following clause of the fourth section of the act of incorporation of said town, which was also read in evidence on the trial, viz.: “If any person or persons shall presume to retail vinous or spirituous liquors in said town, contrary to the provisions of this act, without a license as aforesaid, it shall and may be lawful, and it shall be the duty of the mayor of said town, to issue his warrant, and cause any such person or persons to be brought before him, and if it shall appear that such person or persons, has been retailing, contrary to the provisions of this act, any such person so offending, shall be fined by said mayor, not exceeding twenty dollars, for the use and benefit of said town.”
    The corporation of Aberdeen now prosecutes this writ of error.
    
      
      James L. Herbert, for plaintiff in error.
    The main question in this case, or rather the point mainly in dispute between the parties in this case, in the court below, and it is supposed that it will be the only one in this court, is, had the corporate authorities of the town of Aberdeen, the right, the authority, to pass the ordinance mentioned in the bill of exceptions, by which they forbid the retailing of vinous and spirituous liquors, without license obtained from them, within the corporate limits of said town; and by which they proposed to grant unto any person, properly recommended, licenses to retail vinous and spirituous liquors, within said corporate limits 1 Front the answer given to this question, all the other questions that may arise, will, at least in my estimation, mainly depend.
    It was admitted, and so given in evidence upon the trial in the court below, as appears from the bill of exceptions in this case, that before the warrant, in this case was issued, the census of said town was regularly taken and returned, and that the said town contained within the corporate limits more than two thousand inhabitants ; and that, after the return of the census, and before the issuance of said warrant, the said corporate authorities passed the ordinance abovementioned; and also that the defendant did retail vinous and spirituous liquors, within the corporate limits of said town, after the passage and promulgation of said ordinance, and before the issuance of the warrant, and that he got license, after the passage and promulgation of said ordinance from the board of county police, for the sum of one hundred dollars. Thus leaving nothing but the question of right between the corporate authorities and the board of county police, to be settled by the court. And this question of right to grant the license, in this case, is dependent upon the right of the corporate authorities to pass the ordinance aforesaid.
    It is submitted that- the rule of construction is, that all statutes in pari materia, or upon the same subject, must be taken together, and construed with reference to each other, as parts of the same acts,' so that all may stand harmoniously, if this can be rationally done. 1 Black. Com. 60, note 12; Scott 
      v. Searles & Moore, IS. & M. 590. By the fourth section of the act of incorporation, as set forth in the bill of exceptions, it will be perceived that the corporate authorities are made a body politic and corporate, with full power to pass any, and all ordinances, rules and regulations, necessary for the well being and- good government of said town, with full power over all matters of police, within the corporate limits of said town; and also the sole power to grant licenses for retailing vinous and spirituous liquors within the corporation; and of regulating the price and time of payment of said license. The same section further gives power to, and, in fact, makes it the absolute duty of the mayor to issue his warrant, and to cause to be brought before him, any person or persons, who may presume to retail vinous and spirituous liquors within the corporation of said town, without license obtained from said corporate authorities; and, upon a hearing, if they are guilty of a violation of the law, to fine such person or persons, in a sum not exceeding twenty dollars for every such offence. It is presumed that no person will contend that, under this section of the charter of said town, the corporate authorities had no right to pass an ordinance prohibiting the retailing of vinous and spirituous liquors, within the corporate limits of the town of Aberdeen; and that they had no power, through their mayor, to bring any person presuming to violate that ordinance, before him; nor will they deny his right to fine such violators of the ordinance, as authorized and required by said act of incorporation; but upon the contrary, it is manifest to all, that the power is here granted, exclusively, to the corporate authorities to grant license for the retailing of vinous and spirituous liquors, and to make all necessary regulation, in relation thereto, within the corporation; and that the mayor has the power, and that it is his duty to fine the violators of such ordinance, as he did do, in this particular case. But has that power, since it was by the legislature so conferred, been withdrawn or taken away from them? By the act of 1839, commonly called the gallon law, all persons, within the state of Mississippi, were prohibited from retailing vinous or spirituous liquors, in any quantity less than one gallon, (How. & Hutch. Dig. 187,) by which said last mentioned statute, it may be said the abovementioned authority, conferred on the corporate authorities, was repealed. Admit, for the sake of the argument, that it was repealed, yet the repealing act, being itself repealed by the act of the legislature, approved February 22d, 1842, (pamphlet acts of that year, p. 108,) the act of incorporation of the town of Aberdeen, oi; so much of it as was repealed was revived, and all the powers conferred by it, upon the corporate authorities of said town, were revived with it, and conferred anew upon them. The rule being, that, “ If a statute that repeals another is itself repealed afterwards, the first statute is thereby revived, without any formal words for that purpose.” 1 Black. Com. 90.
    If, then, the power exists in the corporate authorities, it cannot exist in the board of police of the county ; and it follows that the license granted to the defendant by the board of county police, was a mere nullity, and did not confer upon him any right or privilege to retail vinous or spirituous liquors within the corporate limits of said town. By the second section of an act, approved February 22d, 1842, pamphlet acts, page 109, each and every incorporated city or town in the state, having a population of two thousand or more inhabitants, have full power conferred upon their corporate authorities to grant to any free white person, resident in such city or town, license to sell by retail in any quantity, vinous and spirituous liquors, within the same, and to charge and receive, for such license, for a period of twelve months, any sum not exceeding one thousand dollars, nor less than two hundred dollars; and the money for the license, and for all fines arising under this.act, is to be paid into the treasury of such city or town. And in the third section of the same act, page 110, the board of county police have power conferred upon them, to grant license to retailers, for any sum of money not exceeding one thousand dollars, nor less than fifty, for twelve months, to any free white person resident in the county, and not a resident within an incorporated city or town, having a population of two thousand or more inhabitants. Here again it is perceived that, in the second section, direct power and authority is granted to the corporate authorities of the town of Aberdeen (she having, as is shown by the evidence agreed to between the parties, and given in on the trial, the number of inhabitants required, to bring her within the language of the statute,) to grant license for retailing within its corporate limits. . And in the next section, general power is given to the board of police to grant license to persons, in their counties respectively, where the applicant is not a resident of a town, containing two thousand inhabitants or more; and in that case, expressly reserves the power to be exercised by the corporate authorities, and prohibits the board of county police from exercising it, showing the wisdom and justice of the legislature in this instance, and pointing as an index to the intention and object that body had in view.
    But it is said (and the court below seemed to base its judgment on the same view of the subject,) that all the powers of the corporate authorities of the towp of Aberdeen, in relation to granting license to retail vinous and spirituous liquors, &c., heretofore granted by the statutes above referred to, have been repealed by the seventh section of an act, entitled, “An act to establish a system of common schools and for other purposes,” approved March 4th, 1846, and to be found in the pamphlet acts of that year, on page 100. Now, how this mistaken view could ever have found favor with heads of wisdom, I am at a loss to know. That section, upon a simple and fair reading, merely requires and directs that all moneys arising from license granted to hawkers and pedlers, keepers of billiard tables, retailers of vinous and spirituous liquors, and brokers, shall be paid to the treasurer of the county in which the same may be collected, &c., shall constitute the school fund, &c. The verbiage of the act itself, according to the strictest construction, only requires that the money, after it shall have been collected by the different officers, appointed by the law for that purpose, shall be paid into the county treasury, and then and there to become a part of the common school fund. The phrase, the money arising from license, &c., as used in the act, shows that this view of the subject is correct. It must arise. How is it to arise ? By the granting of licenses. Who is to grant them 1 Are they to be granted by the treasurer, of the county, into whose office the money is to be paid? Does the law appoint him as the proper personage to grant the license, merely because it has said that the money should be paid into his office ? I hardly think any person, or at least any lawyer, can be found contending for such a construction; and yet it would be as reasonable to contend for this, as to say that because the money has to be paid into the county treasury, the board of police must, by implication, be clothed with a power to do that which they before had no right to do, and to do that which they were prohibited from doing.
   Mr. Justice Clayton

delivered the opinion of the court.

The mayor of the corporation of Aberdeen, under a clause of the charter of incorporation, had the defendant in error brought before him by warrant, and imposed a fine of $10 upon him for retailing spirituous liquors in said town without license. The charter passed in 1837, conferred on the corporation express and sole power to grant licenses to retail spirituous liquors in its limits, and authorized the proceeding taken in this cause, to impose a fine for a breach of its ordinance.

The case was taken by appeal to the circuit court, and the judgment of the mayor reversed, and the case thence comes by writ of error to this court.

It is insisted that the charter is virtually repealed by the acts of 1839, 1842 and 1846. The statute of 1839, commonly known as the gallon law, does not directly or in terms repeal this charter, but its indirect effect works the same end. It takes away from all persons in the state, the capacity to be the recipients of a license to sell liquor in less quantity than a gallon. The charter, therefore, had nothing upon which it could operate, because if all persons were prohibited from receiving a license, the corporation was virtually excluded from exercising the power. This was not an effort to repeal the charter, but to expel tippling from the-bounds of the state; a course of general policy, not directed against this charter, and with which the charter ought not to interfere.

But the act of 1842, page 108, restored the capacity to obtain license to retail vinous and spirituous liquors, and thereby removed the impediment to the operation of the charter. The corporation then had the right to exercise its power to grant licenses, which never had been repealed, but was suspended for the want of some subject on which it could operate. Its right was in terms sole and exclusive, when a license could be granted at all, the sole power to grant was in the corporation. The act of 1846 does not interfere with this exclusive power of the corporation. Nor can that act divert the amounts received for such licenses to any other purposes than those indicated in the charter.

The circuit court having taken a different view of the law, the judgment is reversed, and this court, proceeding to give the judgment which should have been given, directs judgment to be here rendered for the fine assessed by the mayor in the first instance.

Judgment reversed.  