Wallace v. Cubanola , 70 Ark. 395 ( 1902 )

Hughes, J.,

(after stating the facts.) So far as the objection of the appellant is concerned that no separate election was held on the liquor question in the town before the ordinance took effect, the case of Doss v. Moore, 69 Ark., 262, is in point, and settles this question against the appellant. In that case it is said that, “if the town is not a separate election precinct, and a majority of the electors of the county and township in which the town is situated vote in favor of license, then license to keep a saloon in the town may be granted, it being in such case only a part of the township.”

The objection that the ordinance was passed for the purpose of raising revenue only is not tenable. It is an assumption. The town council had the power to regulate the sale of liquor within its corporate limits. The town council had the power to license, regulate, tax or suppress tippling houses or dramshops. Section 5132, Sandels & Hilhs Digest (Acts 1874-5, page 8).

The third section of the ordinance, providing that the license may be transferred, is void, being contrary to the statute. But this does not make the whole ordinance void. It may be stricken out, and there will still remain a complete and perfect ordinance, to effect the object of its passage. That the liconst might be transferred was not of the essence of the thing to be accomplished. State v. Marsh, 37 Ark. 356; Davis v. Gaines, 48 Ark. 370; State v. Deschamp, 53 Ark. 490; L. R. & Ft. S. R. Co. v. Worthen, 46 Ark. 312.

As to appellant’s fourth objection, that the ordinance imposes a penalty greater than $15 a day for each day appellant sells without license, see sections 5150 and 5151, Sandels & Hill’s Digest, and Siloam Springs v. Thompson, 41 Ark. 456, where it is said: “The act (of 1874-5) 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 said city, or prescribe any particular time in which ordinances on that subject may be passed,” etc.

The town had voted with the electors of White precinct, in which it was situated, for license, and there was no vote against license, and no election on that question in the town, but it nevertheless possessed the power to license and regulate the sale of it within its limits. It was a municipal government having the power to provide for its own welfare, and there was no limitation other than that it might not grant license to keep a tippling house or dramshop when there had been a majority vote against it. The declarations of law asked by the appellant were properly refused.

The judgment is affirmed.