The home journal. (Winchester, Tenn.) 1858-188?, 1883-02-28

class would, therefore, be az miIcn WIN
in the serving of the second section Of
the act Of 1877 MS the sale within the
limits Of any other Incorporated town.
His honor, the trial judge, was Of
opinion that the right to sell liquor by
retail within four miles of u chartered
institution Of learning in q taxing dis.
trict ofthe second class was prohibited
by the act creating these districts. And
it may be conceded that such was the
intention Of the legislators by the Ian
glagc used in the sixteenth section
That nothing in this act shall be con-
strued as permitting the retailing Of in
toxicating liquors in such taxing dis
tricts within four miles Of a chartered
institution of learning" But the inten-
ton cannot be eHectuated except by
treating this section as repeating the
general statute Of 1877, or exempting
the incorporated communities within
those districts from its provisions. And
the difficulty is in seeing how this can
be done consistently with the provisions
Of the constitution, and the usual rules
Of statutory construction. Our duty is
to carry into effect the intention Of the
legislation, if possible.
The act creating taxing districts of
the second class does not give to the
corporation organized under it, or to
the officers Of such a corporation any
authority in relation to the privileges
created by the general laws Of the
State. The corporation can pass no or
dinance inconsistent with these laws. 1t
cannot even levy IL levy II tax on either
property or privileges. This is express
Iy forbidden by section 8 and by section
II the State levies tax Of 81 on ev-
cry 500 Of taxable property, and on
all merchants and privileges tax equal
to the general State tax, for he purpose
Of supporting the corporate government.
The municipal authorities are not vest
ed, by the act, with power to permit or
forbid the exercise Of any business Ii
censcd by the State as Il privilege. Nor
has the Legislature undertaken in the
act, by positive language, to forbid such
exercise The language of section l6
is merely negative, that nothing in the
act shall be construed as permitting"
etc. And there IS nothing in the act
which either permits or torbids in so
many words.
The constitution of the State, article
2, section II, says "All acts which re-
peal, revive or amend former laws,
shall recitc in their caption or otherwise
the title or substance Of the law repeal
ed, revived or amended" The act
crcatinf .aying districts Of the I'd class
cannot be considered as an act to repeal
or amend the act Of 1877, for neither in
its "caption or otherwise" does it recte
the "tillc or substance" Of the penal
statute. Nor does it contain any such
positive provisions upon the subject
matter Of the statute as would operate
to repeal by implication The sixteenth
section, as we have seen, is merely neg
alive in IFS language. The truth is.
the Legislature had II general intent to
create new class Of municipal corpora
tons. and particular intent that this
class of corporations should not be with
in the savings Of the penal statute. The
general intent is fully carried out in ey-
cry respect, while the particular intent
fails for want of the constitutional reel
tails or the positive language necessary
for the purpose. And if there had been
the proper recitals or language, the
whole act, would, perhaps, have been
obnoxious to another provision Of the
section Of the constitution above cited,
that "No bill shall become IL law which
embraces more than one subject, that
subject to be expressed in the title" For
the creation Of Il class Of municipal cor
porations, and the alteration of gen.
cral penal law, can scarcely be consid.
cred as one subject, even if the general
law bear upon all municipal corpora
tons. And the result would be the
same if the sixteenth section be treated
as an attempt to exempt one class of
corporations from the operation of
general law. And it is at least doubt
full whether a separate act which under
took to exempt one class of municipal
corporations from the provisions of
penal law applicable to all such corpo-
ations would be constitutional.
If it was the intention of the Lcgisla-
turc to exclude Il construction of the act
as permitting the sale of liquors, under
the impression that such sale was al
ready prohibited by the existing law,
the results would be the same. The
language is not sufficient to create IL
leclaratory act upon which the courts
an base a new construction. The old
aw remains in force precisely as if the
language had not been used.
The judgment of the circuit court
must be reversed, and the case remand
ID for new trial. COOPER, Judge.
This decision disposes of several other
'asos depending upon the same ques-
ion, the remedy Of which are handed
n with this case. The judgments will
DC reversed, and the causes remanled.
COOPER, Judge.