Siloam Springs v. Thompson , 41 Ark. 456 ( 1883 )

OPINION.

The questions presented on this appeal are, whether the license ordinance of the appellant city was valid, and if valid, whether on the facts of the case, appellee was punishable for its violation.

Ordinances of cities must not only conform to their charters, but they must be consistent with the general laws -of the State.

The State first adopted the policy of prohibiting the county courts from granting dramshop licenses, except •upon the petition of a majority of the voters of the town•ship in which it was proposed to establish a dramshop. Gantt’s Diy., sec. 571, etc.

By act of April 30, 1874, the State adopted the policy of •submitting the question of granting liquor licenses by the county court (then board of supervisors) to the electors of townships, wards of cities and incorporated towns. Acts 1874, p. 48, Whittington ex parte ; 34 Ark., 395.

By the acts of March 8, 1879, (Acts of 1879-, p. 33) this and the former act were repealed, and it was enacted in substance that at each general election there should be •submitted to the electors of each township and ward of a •city in this State the question whether license should be granted by the county court to any person to keep a dram-shop or drinking saloon in such township or ward. And if at such election a majority or equal number of votes of any township or ward should be cast against license, then it. should not be lawful for the county court to grant license to-any person to keep a drinking saloon or dramshop in suck township or ward. Secs. 7, 8, 9.

In Erb. v. The State, 35 Ark., 638, it was decided that sections 7, 8 and 9 of this act plainly required a majority vote of the electors of any township or ward in favor of keeping a dramshop or drinking saloon therein before the county court could lawfully grant such license; that there was no power in the court to issue such license except upon such favorable vote.

The act of March 19, 1881, (Mcis of 1881, p. 132> made a material amendment of the act of eighth of March,. 1879. It provides in substance that at each general election' there shall be submitted to the electors of each county the question whether license shall or shall not be granted by the-county court of such county, for the sale of vinous, ardent, malt or fermented liquors, etc., within such county for two years, etc. See. 1.

And if at such election the majority of the votes cast in any county upon the question be not “for license,” then it shall be unlawful for the county court of such county to grant license for the purpose mentioned in the preceding-section, at any place within such county, until after the-next general election.

But if a majority of the votes cast in any county upon the-question be “/or license,” then it shall be lawful forthe county court of such county to grant license for the purposes aforesaid, to persons of good moral character, over the age of twenty-one years,within any township, town or ward of a city in such county, where the majority of the votes cast upon the question was “for license,” but in no other. Sec. 2.

.liquor: court to cense sen. jy appears that at the general election in -September, 1882, a majority of, votes in Benton county upon the ques-of license was “/or license.” Hence it was lawful for the county court of that county to grant license to any person of good moral character, etc., within any township, town or ward of a city in said county, where the majority of the votes cast upon the question was “for license,” but in no other.

No vote. no license. But at that general election the electors of the appellant city did not vote at all on the question of license at either of the three wards of the city.; they went to Hico, out of the city limits, and voted with the electors of that township. There being no vote in either ward of the city “for license,” it was not lawful for the county court to grant a license to any person to keep a dramshop or drinking saloon within the limits of the city, until after the next general election, and a majority vote for license as is held in Prb v.. State, sup.

Such was the general law of the State regulating the granting of dramshop license by the county court at the time when the alleged offense was committed by appellee against the city ordinance in question.

We turn now to look at the law prescribed for the government of cities on the subject of dramshops or tippling houses.

SAME: By section 12 of the act of March 9, 1875, for the incorporation, organization and government of municipal corpo-2rations (Acts 18,74-5, p. 8) a city council has power license, regulate, tax or suppress, etc., tippling and dramshops : Provided the city or town council shall not grant a license to any tippling house, dramshop or saloon, or permit such houses, shops or saloons to carry on such business in any ward of the city, or incorporated town, when at the previous election a majority of the votes cast were against license in such ward of a city or incorporated town.”

By section 22 of the act, municipal corporations are empowered to make and publish from time to time by-laws or ordinances not inconsistent with the laws of the State, to carry into effect the powers conferred by the act.

The ordinance of the appellant city in question is in conformity with section 12 of the act, and is not inconsistent with any law of the State. ■

The act does not limit the price which a city council may ■fix for a license to keep a tippling house or dramshop •within the limits of the city, or'prescribe any particular time iii which ordinances on that subject may be passed. 'The only restriction upon a city council is that it shall not grant license to keep a tippling house or dramshop in any ward of the city wheré at the previous election a majority of the votes cast was against license. The ordinance in .•question, in its terms, conforms to this limitation upon the powers of the city council.

But plainly, under the act and under the ordinance, there must not only be no majority vote against license at the previous election, but there must be a majority vote for license to make it lawful for the mayor to grant license, as held in Erb v. State, in construing the act of March 8, 1879, where similar language was used, and this construc•tion makes the organic law of cities and the ordinance in •question conform to the general policy of the State on the >subject of dramshop licenses, etc.

At the general election of 1882 there were no votes cast •in the wards of the appellant city on the question of license, -hence there was no majority against, and certainly none for license. The mayor of the city was therefore not •authorized at the time of the alleged offense to grant to any person a license to keep a tippling house or dramshop within the limits of the city.

Appellee thought proper to keep a dramshop within the the limits of the city, r.egardless of the ordinance, and he -subjected himself to the penalty prescribed thereby for •such offense.

It may be said that it is a hard measure to punish a man for keeping a dramshop within the limits of a city without License, when he can get none. But such was the plea in Drb’s case, and it was held unavailing.

The judgment of the court below must be reversed, and the cause remanded for a new trial.