Shackelford, C. J.,
delivered the opinion of the court.
■ This was a conviction in the Circuit Court of Yalobusha county, at the April Term, 1867, for violating the Liquor Law of 1857. Revised Code, p. 197 et seq.
During the progress of the trial there were various exceptions taken to the rulings of the court excluding from the jury testimony offered by the plaintiff in error; also a number of exceptions were taken, based upon the action of the court in charging the jury, at the instance of the State, and for refusal to .grant instructions asked for by the plaintiff in error.
There was a motion for a new trial for the following reasons :
“ 1. The court erred in excluding the testimony offered by defendant. -
“2. The court erred in giving the instructions asked for the State.
“3. The court erred in refusing to give the instructions asked for the defendant.
“ 4. The jury found contrary to law and evidence.”
This motion was overruled by the court, and exceptions taken to the ruling of the court in refusing the motion, and hence the case is here for revisal by writ of error.
The State proved that Licks, the plaintiff in error, in the incorporated town of Water Yalley, in said county of Yalobusha, sold vinous and spirituous liquors to divers persons, in less quantities than one gallon, for money; and that he was not either a druggist, apothecary, or physician; that this selling occurred in January, A.D. 1867.
The district attorney admitted to the jury that the defendant Licks was regularly licensed by the corporate authorities , of said town on the 11th day of October, 1866, to retail vinous and spirituous liquors in said town of Water Yalley, for one year from that date, and that Licks paid therefor the sum of $250, and waived proof of the admissions.
The plaintiff in error admitted that he had never applied to the board of county police of said county for license to retail liquors, etc., in said town, and that he never applied to the said board to fix any tax to be paid by him, and that he never paid any such tax or license, and that none had been fixed or demanded of him by the said board of police.
We do not consider it necessary here to bring in view -the testimony offered by the plaintiff in error, which was excluded ■by the court, although made a ground for a new trial, as the principal part of the same was the legal opinions of counsel, taken by the plaintiff in error, for his future guidance in the premises, after he had obtained his license from the municipal authorities of the town of Water Yalley, to show the lonafides of his intentions and acts.
We consider that the whole case turns upon the construction to be placed upon the act of the legislature passed on the 14th day of November, 1865. Pamphlet Acts, pp. 157-8.
The court gave the following instructions for the State :
“1. In order to authorize the defendant legally to retail vinous and spirituous liquors in less quantity than one gallon, in an incorporated town of less population than two thousand inhabitants, it is necessary that he should have first made application to the board of county police of Yalobusha county for such license, and that he should have paid such license as was ordered and fixed by the said Board on his application, unless the board of police had ordered- and fixed a license to be paid by all retailers in the town of Water Yalley, where defendant sold; and then it was a condition precedent to defendant’s right to sell legally in less quantities than one gallon, that.lie-should have paid the license so ordered and fixed before proceeding to sell.
“2. The payment of the license ordered and fixed by the board of police was a condition precedent to the defendant’s right to sell legally, and if the jury believe from the evidence he sold in less quantities than one gallon, before the payment of such license so ordered and fixed, then the law is for the State, and they will find the defendant guilty as charged.”
The giving of these instructions is made the grounds for the first assignment of error.
In support of the legality of these instructions, counsel for the State contend that the Act of 1865, above referred to, does not, either by implication or otherwise, repeal the provisions of the Revised Code, p. 197. That it only gives to incorporated towns, in which houses may be licensed by the boards of police, power to regulate, control, and even close up such houses. And that it is a further restriction on the sale of vinous and spirituous liquors in less quantities than one gallon, the discretion to exercise which is given to the cities and incorporated towns of the State.
It seems that the Act of 1865 does not add to or take any powers from the municipal authorities of cities or incorporated towns with a population of two thousand inhabitants. By the A ct in the Revised Code, p. 197, art. 2, the exclusive right to grant licenses to sell liquor in less quantities than one gallon, within their corporate limits, is given. The Act of 1865 enlarges the powers of incorporated towns with a population of less than, two thousand inhabitants. The boards of police, by virtue, of art. 8, p. 197, of same act, had, until the passage of the Act of November 14th, 1865 (Pamphlet Acts, pp. 157-8), the exr clusi/oe right or emthority to grant licenses in incorporated towns with a population of less than two thousand inhabitants.
This act was intended to enlarge the powers of the municipal authorities of incorporated towns with populations of a less number than frivo thousand. .It is true the. people of incoiv poráted towns with a .population of less than two thousand had the power, by petitioning the boards of county police- of their respective counties, to grant or not to grant licenses within their corporate limits. The corporate authorities of such incorporated towns had no voice in the granting of such licenses by the boards of police.
The Act of 1865, under consideration, confers upon the municipal authorities of incorporated towns, with populations of a less number than two thousand, the absolute power “ to license or refuse to license, as they may judge expedient.”
This license has to be granted upon the same terms and conditions as are prescribed in the general act of the Revised Code, pp. 197-8, art. 5, which regulates the grant of license sin cities with a population of two thousand inhabitants, in police districts of the counties and incorporated towns of the State with populations of less than two thousand. This Act of 1865 places incorporated towns of less than two thousand inhabitants in the same position with incorporated towns or cities with a population of two thousand, as to the right to grant licenses within their corporate limits, subject, however, to the proviso in the Act of 1865.
Can the boards of police now license a retail liquor-house, as provided for in art. 3, Revised Code, p. 197, in any incorporated town with a population of less than two thousand, without the consent of the municipal authorities of such incorporated town; or can they grant such license at all unless the municipal authorities of such towns first grant a license ? We think they cannot.
Such grant of license could only be made where the boards of police have concurrent jurisdiction over the matter with the corporate authoritiés. It is clear that this act does not give to the boards of police concurrent authority with the municipal authorities of these towns to issue or grant license without the consent of the authorities of said towns embraced by this act. If they cannot grant such license to a party before a license is issued by the municipal authorities of the town, it follows that the exclusive right to grant or refuse the license in the firstinstance belongs to the municipal authority of the towns. The authority of the boards of police to license at all is entirely dependent upon the will of the corporate authorities, expressed either by a grant or a refusal of license to one of its inhabitants to retail liquor within their corporate limits; if refused, the boards of police have no power to license. Therefore, we think that so much of art. 8, Revised Code, p. 197, as is in conflict with the Act of 1865 is repealed, and that the boards of police, have only the right left them by the Act of 1865 to license retail houses in incorporated towns with a population of less than two thousand to the same individuals who are licensed by the municipal authorities. In other words, the exercise of the licensing power left them by the Act of 1865 is entirely dependent upon the will of the corporate authorities of incorporated towns; unless they license in their corporate limits, the jurisdiction of the board of police is absolutely suspended.
. It is insisted by the State that although the plaintiff in error obtained his license from the municipal authorities of the incorporated town of Water Yalley, that he could not sell under such license until he obtained a license from the board of county police.
We do not concur withthe attorney for the State in this view of the case. We have considered how far these acts of the Revised Code and the Act of 1865 are in conflict, and how far they can stand together.
It is true as contended for, that the ■ recipient of a license under the Act of 1865, from the municipal authorities of the incorporated town of a population less than two thousand, is liable, in the language of the Act of 1865, for “such license as shall T)e ordered a/ndfiwed by the respective boards of police of the proper county.” The legislature evidently, meant,in the use of this language, to give the boards of police power to fix a sum for the party already licensed by the corporate authorities to pay into the countytreasury. Nothing was left to the boards of police except the discretionary power to tax or fix a price to be paid in addition to the county for the license of the boards of police. The requisitions provided for in art. 5, Revised Code, p. 198, had to be first complied with before license could be granted by tbe municipal .authorities of "Water Talley, to the plaintiff in error. This is presumed to have been done. Then there was nothing left for the board of police of Yalobusha county to do,- except- to name and assess the sum the plaintiff in error should pay in addition to what he had already paid.
The board of police of said county could have fixed, either before or after the grant of the license by the authorities -of Water Talley to the jdaintiff in error, the amount he should pay for the additional license; or it could have assessed an amount to be paid by every retailer in Water Talley, acting under the authority of the corporate authorities.
If this had been done, and the amount of the -license assessed and fixed by the board of county police of Yalobusha county, at any time previous to the sale of the liquor for which plain- tiff in error was indicted and committed, such a state of facts would have made an entirely different case from the one before us.
When such a ease arises, it will be time enough then to decide what effect an assessment of an amount to be paid for license to a county, by a board of-police, will have upon the rights and liabilities of a party who holds a license from the municipal authorities of an incorporated town of a poprdation of less- than two thousand.
It was no fanlt of the plaintiff in error that the board of police of Yalobusha county failed to fix an amount of money to be -paid for a license from that body, to retail liquors, etc., in the town of Water Talley.
Until such license was ordered or fixed by the board of police of Yalobusha county, the plaintiff in error was violating no provision of the General Liquor Law; (Revised Code, p. 197), or of the Act-of November 14, 1865; and consequently was guilty of no offence when he sold the liquor for which he was convicted. By the Act of November, 1865, the municipal authorities of incorporated towns have authority “to pass such-laws and ordinances not inconsistent with the laws and constitution of the-State and of the United States, as theyshall deem expedient for the control and regulation of all drinking-saloons within their corporate limits.”
The legislature intended by this act to confer absolute and exclusive power upon the people and municipal authorities of incorporated towns, to regulate the issuance, of licenses to drinking-saloons, and to provide the prerequisites to be observed before issuance of licenses. In the absence of such municipal legislation, the provisions of art. 5, Revised Code, p. 198, as we have before said, are the law regulating the issuance of licenses to retail liquor-houses in incorporated towns and cities. There is no proof in this record showing that any of the prerequisites to the grant of license under art. 5, Revised Code, p. 198, had been omitted by the plaintiff in error, in the license granted to him on the 11th day of October, 1866.
Then upon what principle is it claimed that the board of county police has the right to require any conditions precedent to be complied with by-the plaintiff in error, after he has complied with all the requisitions of the law, and the conditions prescribed by the municipal authorities of Water Yalley, before the board should fix the amount to be paid for the county license to him, and before he should be permitted to retail under his license from the authorities of Water Yalley.
The power in the Act of 1865 is given to the corporate autnorities to revoke any license granted by themthis is the power granted in art. 7, p. 198, Revised Code, of the General Law, to cities and incorporated towns of two thousand inhabitants, and to the boards of police. This power of the board of police is now conferred upon the authorities of incorporated towns of less than two thousand inhabitants. Could a party whose license had been revoked or annulled by the corporate authorities go on and sell or retail liquor under the license granted him by the county police ? It would be absurd to maintain that he could. If this could not be done, where can the authority be found in the boards of police giving them the right to control the action of the corporate authorities by prescribing conditions precedent to be observed by them in the grant of licenses? The law and their ordinances they are alone to, observe.
If we are right in these views of the Statute of 1865 and the General Liquor Law, the boards of police are debarred from all control over the subject-matter in question, in incorporated towns, except so far as to fix the amount to be paid the county for such additional license.
. We consider the first assignment of plaintiff in error well taken, and the court erred in giving the second and third instructions asked by the State.
The second assignment is : “ The court erred in refusing the first, second, and third instructions asked on behalf of the .plaintiff in error.”
We deem it unnecessary to consider the first instruction refused by the court, as it refers entirely to the testimony of the plaintiff in error,-ruled out by the court, which we have con-, sidered unnecessary to notice. The second instruction refused is: “If the jury believe from the evidence that the defendant was regularly licensed to retail by the corporate authorities of the town of Water Yalley, and that the same was an incorporated town; that no tax on him or on retailers generally in said town had been levied, fixed, or assessed by the board of county police of Yalobusha county, then the defendant was authorized to retail during the time covered by such - license.”
“ 3. Under the law in force in October, 1866, and from that time, the corporate authorities of Water Yalley had and have authority to license parties to retail in said town; and when such license is granted, the party so licensed has the right to retail in said town without first obtaining a license from the board of police, but is bound to pay such tax as may be fixed, levied, or assessed by said board.” These instructions, we think, contain a correct interpretation of the Statute of 1865, in connection with the General License Law of 1857 (Eevised Code, pp. 197r8), and should have been given, and it was error to refuse them.
The third assignment of error is, that the court erred in re fusing to grant a new trial. We have, in the consideration of the questions previously discussed, disposed of the grounds set forth in the motion for a new trial. The motion should have been granted by tbe court on all tbe grounds except the first, upon wbieb we give no opinion, for reasons previously stated.
Many grave questions may possibly arise touching tbe legality of tbe “proviso ” in the Act of November 14th, 1865, when it comes to he construed in connection with the powers therein previously conferred upon the municipal authorities of incorporated towns of a population less than two thousand; conflicts of jurisdiction between these authorities may occur; producing results affecting the rights of individuals, etc. We do not intend, by anything we have said in the discussion of the case before ns, to intimate any opinion upon probable questions that may arise under the Act of 1865, and the General Law of Revised Code, pp. 197-8, suggested above.
For these reasons the verdict must he set aside and the judgment reversed, a new trial awarded, and the case remanded.