State v. Harden
| Decision Date | 19 February 1908 |
| Parties | STATE v. HARDEN. |
| Court | West Virginia Supreme Court |
For majority opinion, see 58 S.E. 715.
I concur in the proposition, announced in the majority opinion that the Legislature has authority to confer upon municipal corporations sole power to grant or refuse license to sell spirituous liquors within their corporate limits; this court being committed to that proposition by prior decisions construing our Constitution. But I cannot concur in the conclusion reached that the Legislature, in exercise of this authority, has ever directly or indirectly, or by delegated authority to the circuit court of Mason county, conferred upon the town council of Point Pleasant such sole power. The opinion attempts to justify this conclusion upon three propositions: First, that the title and substantive provisions of the act of 1891 evince a purpose on he part of the Legislature of "making a complete law for the government of the town of Point Pleasant, and fully defining its powers," so that it might not thereafter be necessary to look to the provisions of the act of 1794 or of 1860, or to any provision of chapter 47 of the Code [Code 1906, §§ 1841-1910], but to the provisions of the act of 1891 alone, to ascertain the limits of the powers and duties of said corporation; second, that section 35, c 40, p. 88, of said act of 1891, authorizing the council to prescribe by ordinance "the manner in which licenses of all kinds shall be applied for and granted," and to "require the payment of the tax thereon before delivery to the person applying therefor," was intended to be and in fact was a substituted provision for section 32, c. 201 p. 375, of the act of 1860, which provided that "whenever anything for which a state license is required is to be done within the said town, the council may require a town license to be had for doing the same, and may impose a tax thereon for the use of the town, and the council may, in any case in which it sees fit, require from the person so licensed a bond, with sureties, in such penalty and with such condition as it may think proper," and that this substituted provision, considered in the light of the title and other substantive provisions of the act of 1891, must be construed to confer upon the council sole power to grant liquor licenses; third, that, whether or no the second proposition be correct, the proceedings and order of the circuit court of Mason county of 1883, by which that court undertook to confer upon the council of said town sole power to grant such licenses, was competent to do so, and, whether it was or not, section 40, c. 40, p. 90, of the act of 1891 (the repealing clause of that act) providing that it "shall not be construed to repeal, change, or modify any previous act not inconsistent with this act authorizing said town to contract debts or borrow money, or to take away any of the powers conferred upon said town or upon the mayor or council or any of the officers thereof conferred by general law, or any amendment of its charter heretofore made by the circuit court of Mason county, except so far as the same may be inconsistent with the powers hereby conferred," must, in order to effectuate the alleged intendment of the Legislature to create a complete organic law for said town, be converted into a positive enactment by the general reference there made, conferring sole power upon the council of said town to grant liquor licenses. As I understand the opinion, the last proposition stands alone upon the views of Judge POFFENBARGER, who prepared that opinion, the other judges not concurring therein.
On the first proposition, it may as well be said of the act of 1794 and of 1860 as of the act of 1891, that they evince a purpose on the part of the Legislature to create a complete organic law for the government of said municipality; but neither invested the council with the sole power to grant licenses to sell spirituous liquors. The argument, it seems to me, is based on the false assumption that a complete organic law for the government of the municipality necessarily requires and implies sole power to deal with liquor licenses, state as well as municipal-a non sequitur. Sole power to grant licenses has been conferred upon few municipalities of the state; but all are empowered, either by special provision of their charters, or by the general provisions of section 33 of chapter 47 of the Code [Code 1906, § 1878], to require a municipal license and impose a tax thereon when anything for which a state license is required is to be done within the municipality. By the repealing section of the act of 1891, such powers conferred by general law were specially reserved to the town of Point Pleasant. I am unable, therefore, to appreciate the force of the argument, and of the illustrations drawn from the decisions referred to, on the first proposition. It seems to me the decisions and authorities referred to have very remote, if any, application to this branch of the subject.
The second proposition, it seems to me, is the one mainly relied upon in the opinion of the court, the one on which the concurring judges have mainly united. It rests principally upon the assumption that section 35 of the act of 1891 was intended to confer upon the council, not by express terms, but by implication, sole power to grant licenses to sell spirituous liquors-a substitute, as I have said, for section 32 of the act of 1860. The opinion of the court discloses in part the position in which this section 35 stood in the act as it was originally introduced in the Legislature. In the bill, as introduced, it originally stood as section 37; section 35 then prescribing the things for the doing of which the council should have power to grant and revoke licenses, and section 36 providing for the taking of bonds from persons licensed to sell spirituous liquors. These sections are quoted in full in the opinion of the court. By reference to the original section 35 it will be seen that it did not confer upon the council the sole power to grant licenses to sell spirituous liquors, and the purpose of it was solely to authorize the council to impose a tax thereon for municipal purposes. After the effort was made to amend section 35 so as to invest the council with sole power on the subject, the result, as shown by the journals of the Legislature, was that both this section and section 36 were stricken out, thereby eliminating the only provisions of the act directly conferring upon the council power to grant licenses for any purpose. After these sections were thus eliminated, original section 37 was made, without change, section 35 of the act, as finally passed. It is clearly to be seen that this section, read in connection with the two so eliminated, was not intended to confer any power to grant licenses for any purpose, but, by its very terms, it only authorized the council to prescribe by ordinance the manner in which licenses should be applied for and granted, and certainly, as originally proposed, related solely to licenses for municipal purposes. But now the argument is that, the sections specially conferring power to grant licenses to the municipality having been stricken out, that section, which was intended to authorize the council to prescribe the manner in which licenses for municipal purposes should be applied for and granted, must be so construed as to give sole power and authority over the whole subject of license taxes, state and municipal. In my opinion, neither its original place in the bill as proposed nor its terms will admit of such construction.
But it is argued that, without this section is thus construed, it will be left meaningless. I do not think so. It may still be given full force and effect, and made to execute its original purpose. What are we to conclude from the action of the Legislature in striking out said sections 35 and 36? That the Legislature intended thereby to deprive the municipality of all power to grant and revoke licenses? By no means. Power is fully conferred by section 33 of chapter 47 of the Code [Code 1906, § 1878], reserved, if that were necessary, in the repealing section of the act of 1891. Concededly that section of the general law is as much a part of the organic law of the municipality of Point Pleasant as if it had been bodily inserted in the place of the two sections stricken out of the act of 1891. If we read this section of the general law into that act, as we must, then every provision of said section 35 as it now stands, relating to the mode of obtaining licenses, may be given full force and effect; and this is plainly the effect which the Legislature intended it should have. That said section 35 conferred any such authority as is now claimed for it was not even suggested upon the original hearing. The sole ground of defense then was that, by the proceedings and order of the circuit court of Mason county in 1883, the council had been invested with sole power to grant licenses for state and municipal purposes to sell spirituous liquors within the corporate limits. This brings me to the third and last proposition. I make the same answer to it now as I made then.
Our Constitution of 1872, § 39, art. 6 [Code 1906, p. lxii] provides that ...
To continue reading
Request your trial