State Board of Education v. City of Aberdeen

Simrall, C. J.,

delivered the opinion of the court.

The city of Aberdeen claims the money received for licenses to retail liquor within the corporate limits, by virtue of its charter, which was granted prior to the adoption of the Constitution of 1869.

On the other hand, the State Board'of Education insists that that provision of the charter relied upon, if of the character claimed for it, has been repealed by the eighth article of the Constitution, and chap. 56 of the Code, which regulates the retailing of vinous and spirituous liquors.

The first section of the eighth article of the Constitution affirms that the stability of a republican form of government depends mainly on the intelligence and virtue of the people, and imposes the duty on the Legislature to promote intellectual and moral improvement by “establishing a uniform system of free public schools,” etc.

To accomplish that object (in part), the sixth section of the Constitution declares that there shall be established a common-school fund, which shall consist, among other things, of public lands known as swamp lands, fines for breaches of penal laws, * * * “and all moneys received for licenses granted under the general laws for the sale of intoxicating liquors, or keeping of dram-shops.”

When the Legislature came to put the school system into operation, as delineated in chap. 56 of the Code, it recognized, as a practice which had long prevailed, the granting oU such licenses by the incorporated towns and cities. The Code continued that privilege to incorporated towns and cities, but *525 directed ‘ ‘ the sums received for such licenses to be for the use of the common-school fund, and paid into the State treasury for that purpose. ”

Before the license shall issue, the money therefor must be paid by the applicant to the treasurer of the corporation (sect. 2460), who shall, within thirty days thereafter, pay the same into the State treasury; and for failure, shall be subject, on conviction, to fine and imprisonment. Sect. 2469.

It would hardly be maintained, at this day, that the power of the State to deal with and regulate internal traffic in ardent spirits was not ample. It belongs to its police powers. That subject was carefully considered in Rohrbacher v. City of Jackson, 51 Miss. 713 . Nor would it now be seriously contended that the Legislature could not modify or repeal privileges and franchises which it had granted to a municipal •corporation, at its discretion, provided it did not interfere witli rights of property or contract which may have accrued.

It would have been the exercise of unquestionable power if the Legislature had taken away from the towns and cities the franchise to grant these licenses, although the power so to do had been conferred in their respective charters. If it chose to confer authority to issue the licenses, it could have imposed the conditions, named the sum to be paid, and the use to which the money should be put. These may have been different from the mode, amount, and use as defined in the acts of incorporation.

These municipal bodies had no vested right, either to grant licenses, or to the money received from them, by virtue of their charters of incorporation, which the Legislature could not resume. It is quite well settled, in constitutional law, that a municipal charter is not a contract in the sense of the Federal Constitution. It is a delegation, in-part, of the State sovereignty to the local body, for the convenience of local government; which may be withdrawn, in whole or part, at the will of the State. The charter does not create a contract between the municipality and the State, and it has not such a *526 proprietary interest in money authorized to be raised by its charter as would prevent a subsequent Legislature from giving another direction to such money. The People v. Power, 25 Ill. 187 ; The People v. Supervisors, 50 Cal. 561 ; The People v. Morris, 13 Wend. 325 ; Stelz v. Indianapolis, 55 Ind. 515 . The rule is subject to the limitation that, under authority conferred by the charter, the municipality may come under such duty or engagements with third persons as to create the sanctity of contract, so that a subsequent Legislature will be restrained in its power so far as that it cannot impair rights which have become perfected. The language of the Constitution is imperative, that there shall be established a common-school fund, to consist, in part, of all moneys derived from licenses to retail liquors. The Legislature has devised general laws under which these licenses shall be granted. No other authority shall or can issue them except those of a city, or town, or county, and the money so derived shall be paid into the State treasury for the school-fund. Yazoo City v. The State, 48 Miss. 440 .

It is impossible to execute this law on the theory that it does not apply to those towns and cities to which previous special laws had given the money for municipal purposes. An examination of the charters of these corporations, granted prior to 1869, would show that to nearly every one of them the liquor-license money had been given for some local object. The plan of the Code is, to gather into a common fund all the moneys collected by incorporated towns and cities, and the counties, for these licenses, for common-school purposes.

Turning to the common-school system inaugurated by the same Legislature, we find that this fund, derived from this and the other sources enumerated in the sixth section of the eighth article of the Constitution, is directed to be distributed to the school-districts into which the State has been divided, on an equal and equitable basis; and for any deficiency to keep up the schools, the districts are invested with the power of local taxation.

The repugnance and inconsistency of the Constitution, and *527 the legislation we have been considering, with the charters allowing towns and cities to retain the money, are so palpable that both cannot stand. It is impossible that all the moneys received by towns and cities for licenses can find its way into the State treasury as a school-fund, if towns and cities may retain it by virtue of charters granted prior to this legislation. ■ .

The repugnant features of the charters must give way to the later statutes. It is plain that the Legislature intended to cover the entire ground by the statute of 1871. The law is 4 ‘ general ’ ’ and uniform, and is applicable to 4 4 every city or town ” that is incorporated. Any other construction would greatly cripple the constitutional school-fund and impair the efficiency of the common schools, for the fiscal records of the treasury will show that much the larger part of the fund is derived from this source.

But this court has ruled adverse to the defendant in error in several cases. In The State Board of Education v. Holly Springs (MS.) there was much more plausibility for the pretension set up by the city than in this case. There, the city was authorized to impose an assessment on the license, for 'municipal purposes. Its authorities. had collected $300 for each license, and claimed that sum as paid for city uses. But it was held that it was under a duty to collect $200 and pay it over to the State ; and it was made liable for that sum on each license issued. See also West Point v. State Board of Education, 50 Miss. 643 .

In The Methodist Episcopal Church v. Vicksburg, 50 Miss. 601 , the city was held amenable in tort for brick which its. employees had taken and used for municipal purposes.

The contention has been made in other States that the franchise to license is a vested right, not repealed or repealable by general statute. That was the question in Sloan v. The State, 8 Black, 364 , and The People v. Morris, 13 Wend. 325 . In both these cases the repeal of the repugnant provisions of the charters was declared to result from their incompati *528 bility with the general statute. The repeal was not express, but by implication. To the proposition put forward by counsel, that the franchise was vested, Nelson, C. J., for the New York court, responded that it was “ unsound, and even absurd; ” the charters delegated “political powers,” subject to be resumed or modified; and, applying that principle, held that the franchise had been controlled by the general statute, because of the irreconcilable repugnance.

But it is insisted that the money sued for was collected under a “special” law, and not under a “general” law, and therefore the plaintiffs ought not to recover.

The history of legislation as respects the town of Aberdeen is instructive. At sundry times the Legislature assumed the control of the money derived from licenses. By the charter of 1837, the town was permitted to license, and to retain the money ; the amount of the tax to be fixed by it, but at not less than $25.

The act of 1848 diverted it from the corporate treasury,. and gave it to the Aberdeen Female Academy.

By the act of 1850, the money was taken from the academy and devoted to the education of the poor children of the town.

Next comes the charter of 1854, which is a revision and consolidation of all previous legislation on the same subject. Under the rulings of this court in several cases, we are satisfied that the Legislature intended by this act to revise and consolidate in it all previous laws which it designed to be operative, and to repeal all not reenacted. Railroad Co. v. Weimer, 49 Miss. 739 ; Swann v. Buck, 40 Miss. 270 .

The title imports as much. It professes “ to amend and to reduce into one the act incorporating the town of Aberdeen, and the several acts amendatory thereto.” The body of the act shows that it was intended to supersede all former charters and amendments. It is a full and final expression of the legislative will. That is accomplished by complete and definite enactments, embracing thirty-seven sections. The sixteenth *529 section, covering five pages of closely printed matter, contains an enumeration of the powers of the mayor and council; among other things, “ to license, tax, regulate, and suppress theatrical and other amusements, shows and exhibitions; all inns, taverns, and boarding-houses, ordinaries, victualing-houses, petty groceries, fruit-shops and stalls, oyster-houses and stalls, porter-houses and cellars, and all places wherein vinous and spirituous liquors are kept for sale in less quantities than one gallon ; and to tax and license the retailing of such quantities' of liquors;according to the existing regulations of this State concerning such retailing.” Acts 1854, p. 224.

The power here conferred must be exercised in accordance with the then regulations of the State. The charter must be considered as speaking in the present tense. The Legislature consents that it may license, but it must conform to existing regulations. Just as the State changes the regulations to license, the city will abide by them. The regulations then in force, except as modified by special laws applicable to Aberdeen, were prescribed by the act of 1842 (Acts, p. 108 et seg.), and are still in force in many respects, having been reenacted by the Codes of 1857 and 1871. This act allowed the receipts for town licenses to go into the corporate treasuries. The charter of 1854 did not, as did that of 1837, give the license-money to the city, as ordinary corporate funds. It is fair to assume that such provision had been omitted from the charter in view of the decisions of Aberdeen v. Saunderson, 8 Smed. & M. 663, and Female Academy v. Aberdeen, 13 Smed. & M. 645, which seemed to have held the doctrine that, so long as the town had a gift, by charter, of the money, the Legislature could not direct any other use of it, unless it repealed the franchise to grant the license. Counsel do not pretend that these decisions rest upon any solid reason, but press them upon us as authority, on the rule of stare decisis.

If we were compelled to perpetuate the error which they contain, it would be with the utmost reluctance. But they have no application to moneys derived from licenses under the *530 charter of 1854, because that charter does not give the money to the city.

The defendant in error also contends that, though the money rightfully belongs to the State Board of Education, and was wrongfully paid into the city treasury, it cannot be recovered, because the city is not liable in implied assumpsit.

Dillon, in his work on Municipal Corporations, lays down the opposite doctrine, — that is, that the city may be, and is, liable for money paid into its treasury, or property used by it, if in truth the money or property is not its own, but belongs to another. Sects. 383, 384.

In Paul v. City of Kenosha, 22 Wis. 266 , it was held that a purchaser of city bonds, void for want of power in the city to issue them, could recover from the city the sum actually paid.

In Dill et al. v. Inhabitants of Wareham, 7 Metc. 447 , the plaintiff recovered back money which he had paid the town for a license to take oysters in the adjacent waters. The town had no property in the oysters, and could not, therefore, grant a license to take them. The court said : “ The town must be regarded as holding the money for the plaintiff’s use.”

In Armstrong County v. Clarion County, 66 Pa. St. 220, the question was, whether one county could recover from the other one-half the damages the first had been obliged to pay for an injury to a traveller, caused by a defective bridge which both were under a duty to keep in repair, and it was ruled that an assumpsit would be implied.

In Leonard v. Canton, 35 Miss. 189 , the plaintiff recovered money which had been exacted from him by the city for a license to retail liquors, when the town authorities had no right, as the law then was, to collect it. The State Board of Education v. Holly Springs (MS.) is fully in point.

In order to free the case from embarrassment in the second trial in the Circuit Court, we refer to the decision (this day) made in a case between the same parties, No. 2791, to wit, that if any part of the demand sued for is composed of collections made by the city since the passage of the act of 1875, *531 it is not recoverable, because such licenses without payment to the.shei’iff were void.

As we have read the record, the suit was brought by the State Board of Education, and not by the State for its use. The declaration, the style of the case identifying the judgment on the demurrer, and the writ of error agree in that.

We think there is error ; and, rendering the proper judgment in this court, we reverse the judgment, overrule the demurrer, and remand the cause for further proceedings.