Alexander v. Graves

• Citation: 173 So. 417,178 Miss. 583
• Decision Date: 22 March 1937
• Docket Number: 32628
• Court: United States State Supreme Court of Mississippi
• Parties: ALEXANDER v. GRAVES, JUSTICE OF PEACE

173 So. 417

178 Miss. 583

ALEXANDER v. GRAVES, JUSTICE OF PEACE

No. 32628

Supreme Court of Mississippi

March 22, 1937

Suggestion Of Error Overruled April 19, 1937.

(In Banc.)

1. INTOXICATING LIQUORS.

Provision of statute relating to regulation of sale of wine and beer by municipalities and boards of supervisors outside of municipalities that nothing in statute shall prohibit the designation of the territory surrounding churches and schools in which such beverages shall not be sold or consumed held not to limit power to prohibit to territory surrounding churches and schools (Laws 1934, chap. 171, sec. 22(b)).

2 STATUTES.

Court must consider statute legalizing sale of wine and beer as an entirety and effect must be given to each part of statute, so as to fulfill intent of Legislature (Laws 1934, chap. 171).

3 STATUTES.

Court in construing statutes must look to statute for the legislative intent.

4 STATUTES.

Court in construing statutes must have as its controlling purpose the purpose of ascertaining and giving effect to intention and purpose of Legislature, and such intention and purpose is to be deduced from whole and every part of statute taken together, and such a construction adopted as will best effectuate the intention of the lawgiver.

5 STATUTES.

Where a statute is obscure, court, in construing it, must ascertain conditions at time of enactment, evil to be avoided, and necessary effect produced by the statute.

6. INTOXICATING LIQUORS.

Statute relating to sale of wine and beer which provided that municipalities and boards of supervisors of territory lying outside of municipalities may enforce regulations "for fixing zones and territories" and for prescribing hours of opening and closing and such other measures as will promote public health, morals, and safety held to confer upon municipalities and on boards of supervisors in such territory the power to fix zones in which sale might be conducted and other zones in which sale might be prohibited, "zone" connoting within itself a fixed territory (Laws 1934, chap. 171, secs. 1, 2, 16, 17, 18, 22).

7. STATUTES.

Punctuation counts for little in legal construction, but may afford some guide to legislative meaning when an act is carefully punctuated.

8. INTOXICATING LIQUORS.

Powers conferred on municipalities and boards of supervisors of territory lying outside municipalities with regard to regulating sale of wine and beer must be based on reasonable conditions, that is, some basis of fact ascertained by board of supervisors which would have a material bearing on whether sale should be by a resident of the state for a period of two years (Laws 1934, chap. 171, sec. 18).

9. INTOXICATING LIQUORS.

Finding of board of supervisors that property within zone in which sale of wine and beer was prohibited was a residential section and that it would promote public health, morals, and safety to have sale prohibited within such territory was binding on reviewing court where petition for prohibition to restrain enforcement of ordinance did not set forth specific facts but merely general conclusions (Laws 1934, chap. 171, secs. 16-18, 22(b)).

10. INTOXICATING LIQUORS.

Legislature has the constitutional power either to prohibit or permit sale of intoxicating liquors, and it is the judge as to conditions on which they base their action.

11. INJUNCTION.

Licensed person selling beer held not entitled to restrain enforcement of ordinance adopted by board of supervisors binding the district in which such person sold beer was a residential district and prohibiting sale of beer therein (Laws 1934, chap. 171, secs. 1, 2, 16-18, 22(b); Laws 1926, chap. 308; Const. 1890, sec. 14).

ANDERSON and GRIFFITH, JJ., dissenting.

HON. J. P. ALEXANDER, Judge.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Proceeding by E. B. Alexander, Jr., for a writ of prohibition directed to C. L. Graves, justice of the peace, to restrain the enforcement of an ordinance adopted by the board of supervisors, creating a zone in which the sale of beer was prohibited. From an adverse judgment, the petitioner appeals. Affirmed.

Affirmed.

W. D. Conn, Jr., of Jackson, for appellant.

The lower court held that the controlling law was contained in section 18, chapter 171, Laws of 1934. The trial court held that this provision of the law gave the board of supervisors the right to prescribe zones and territories and absolutely prohibit the sale of beer and wine therein.

With due deference, we submit that the construction placed by the trial court on the language of section 18 is unreasonable and unwarranted, to say the least, it is a strained construction and one which, clearly, the Legislature never intended should be place on it.

The Legislature, in inserting this provision, evidently took into consideration that the regulation of the sales of beer and wine should be in the hands of the local authorities; that local customs and conditions would justify one repletion as being reasonable in one place, where it would be unreasonable and unsatisfactory in another; that this condition would be found in the counties themselves, where a regulation would be reasonable, desirable or necessary in one community, where there would be no reason for it in another. Consequently, the Legislature provided that the board of supervisors, in territories outside of municipalities, should have the right to "enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and closing, and for such other measures as will promote the public health, morals and safety."

In other words, the authority of the board of supervisors is limited, under this section, to the regulation of the sales of beer and wine. The board is authorized to make and enforce "proper rules and regulations" for the benefit of the people generally. But under this section, certainly the board has no authority to prohibit.

The authority to regulate does not carry with it the power to prohibit, and a business otherwise lawful cannot be prohibited or suppressed unless and until it becomes a nuisance in fact.

Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 90; Ex parte O'Leary, 65 Miss. 80; Comfort v. Kosciusko, 88 Miss. 611, 41 So. 268; Desporte v. City of Biloxi, 136 Miss. 542, 100 St. 387; Dart v. Gulfport, 147 Miss. 534, 113 So. 441; Zoning Law Code 1930, sec. 2474 et seq.; Quintini v. Bay St. Louis, 64 Miss. 483, 1 So. 625.

The board of supervisors has not undertaken to proceed against appellant's place of business to abate it as a nuisance, but has arbitrarily declared that the sale of beer is prohibited in the area where his place of business is located. And as said in the O'Leary case, supra, "It is too broad and sweeping in its provisions, and is invalid."

A board of supervisors is given and has only such powers as are prescribed by the Constitution and the laws of the state as enacted by the Legislature, and this court has said that the course of judicial decision in this state holds boards of supervisors to the strictest limitations of their powers; that they are endowed only with special power and created for special purposes, and can exercise only the powers expressly conferred by statute, or which are necessarily implied.

Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247. The only authority given a board of supervisors with reference to beer and wine is to regulate the sale of same in its county (sec. 18, chap. 171, Laws of 1934), and to prohibit in territory surrounding churches and schools (sec. 22 of the same law) and since there are no churches or schools in the prohibited area, the resolution of the board cannot be upheld under section 22 of the law, and must stand or fall under the provisions of section 18.

Was appellant entitled to the writ of prohibition? We submit that the Crittenden case, 92 Miss. 277, 45 So. 723, is absolute authority for our contention in this respect.

The board adopted the resolution complained of and prosecution of appellant had been begun under it. If the resolution was void, as we contend that it was, then under the foregoing decision, appellant was entitled to have the writ of prohibition, as prayed for, and the trial court was in error in sustaining the demurrer. This court should here and now enter its judgment reversing the judgment of the court below, and as the case is really here on its merits, judgment final should be entered here for appellant. Such an order is authorized by the decision in the Fitzhugh case, supra.

Wm. H. Maynard, Assistant Attorney-General, and Alexander & Satterfield, of Jackson, for appellee.

The act involved licenses for the sale of beer under certain specified conditions and restrictions, and same is not itself a prohibiting statute, but is an authorizing statute.

Fuller v. Jackson, 97 Miss. 237, 52 So. 873.

The passage of this act did not cut down or restrict a right which had been theretofore enjoyed by the petitioner or any other person. It granted an authority to do certain acts which had theretofore been unlawful and repeal the statutes of the state prohibiting such actions only in so far as they conflicted with the act. Therefore, when the petitioner commenced his business it was that of selling sandwiches and drinks, including the sale of beer, in the residential section involved, it was with the full knowledge and notice that the board of supervisors had the authority to fix zones and territories in which they would make effective such measures as would promote the public health, morals and safety.

There is no taking of his property, nor interference with his rights. He did not engage in this...