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ligible siatute, capable of enforcement with cast their ballots for or against the granting out the proviso. It was earnestly, contended of liquor licenses, and provided that no lion behalf of the petitioner that the whole of cense thereafter granted in said city should section 4 should be declared void because it be valid if a majority of the ballots cast at was evident that the General Assembly in- any such city election were against the tended that a vote for or against the granting granting of such licenses, and further proof licenses should not be taken in any town hibited the granting of such licenses in that or city unless upon the initiative of qualified event by the license commissioners of Provelectors by petition, and that, if the machin-idence. Sections 4 and 5 of said chapter 87 ery provided failed to work by reason of its provided for local option in the town of uncertainty, then the right and duty of Pawtucket, and enacted that licenses might local option must necessarily cease; that, if | be granted by the town council if the balthe court should find the words of the pro- lots cast were in favor of granting the same, viso, relating to petitioners void for uncer- and that no licenses should be granted in tainty, it should then leave the section to said town if a majority of the ballots so read as follows: "Sec. 4. The electors of the cast were against the granting of such liseveral cities and towns who are qualified to censes. Section 9 of said chapter 87 providvote in the election of all general officers, ed that no license for the sale of intoxicating shall, at each election of general officers, liquor should be granted by any town councast their ballots for or against the granting cil if at any regular meeting such town of licenses for the sale of intoxicating liq. should vote not to grant any such, the vote uors pursuant to this chapter: Provided, that thereon to be by ballot upon the request of no vote shall be taken on this question in any five qualified electors. Chapter 326, p. any city or town.” The petitioner strenuous- 1, Pub. Laws, passed June 1, 1882, amended ly urged that this and this only would be a section 9 of said chapter 87 by providing true interpretation of the legislative intent; that no license should be granted in any and cited Commonwealth v. Potts, 79 Pa. town if at the annual town meeting jn April 164, Philadelphia v. Barker, 160 Pa. 123, such town should vote not to grant such li28 Atl. 644, General Assembly v. Gratz, 139 cense, and providing that the town clerk upon Pa. 497, 20 Atl. 1041, Connolly v. Union, etc., request in writing of ten qualified electors Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. should insert a proposition providing for the 679, and numerous other cases, to the general | taking of such vote in the warrant calling proposition of law that, where the proviso to such meeting. Chapter 558, p. 27, Pub. Laws, a section of an act. is void for unconstitution passed March 30, 1886, amended said chapter ality or for other reasons, nevertheless, though 87 of the Public Statutes of 1882 by extendnot enforceable, such invalid proviso or por- ing the method of casting and counting baltion cannot be disregarded in giving the in- lots for or against the granting of licenses terpretation of the section.

in the city of Pawtucket and re-enacted the We do not for an instant dispute the gen- provisions of said chapter 87 permitting eral principle of these cases. On the con- such licenses if a majority of such ballots trary, we have fully considered not only the were in favor thereof, and prohibiting the proviso, but also the entire section and the granting of such licenses in Pawtucket if a whole chapter in the endeavor to arrive at majority of said ballots were against the the true legislative intent. The chapter in granting thereof. At the general election question is entitled, "Chapter 102," "Of the April, 1886, a prohibitory amendment was Suppression of Intemperance.” The words adopted by the people of this state, article show in a general way what is the scope and 5 of amendments to the Constitution. At the purpose of the chapter, and its various sec- May session, 1886, the General Assembly tions place restrictions upon the manufac- passed chapter 596, p. 2, Pub. Laws, as a genture and sale of intoxicating liquors by eral act for the enforcement of the promeans of a license system with numerous hibitory amendment repealing chapter 87 of and minute provisions for the administra- the Public Statutes and several acts in tion of such system and for the enforcement amendment thereof and in addition thereto. of penalties for its violation. In order to At the May session of the General Assembly ascertain the intention of the Legislature in 1889, the amendment article 8 annulling the the enactment of section 4, c. 102, Laws 1896, prohibitory amendment article 5 was voted It will be instructive to review the history for submission to the people at a special elecof liquor legislation in this state preceding tion to be held on the third Thursday in and succeeding the period of constitutional June, 1889, under and by the provisions of prohibition (from the year 1886 to the year chapter 808, p. 1, of the Public Laws passed 1889) in so far as local option provisions are May 30, 1889, at which special election arto be found therein. Chapter 87, Pub. St. | ticle 5 of amendments was annulled by the 1882, in section 2 thereof, vested in town adoption of article 8 of amendments by vote councils and boards of aldermen power to of the people. A special session of the Gengrant liquor licenses within their respective eral Assembly called and holden in the towns or cities. Section 3 of said chapter month of July, 1889, followed the repeal of 87 provided that the electors of the city of the prohibitory amendment. An act to regcial session August 1, 1889, contains for the option” as it had existed and been exercised first time a clause identical with section 4, under the former statutes; and the enactC. 102, Gen. Laws 1896. Pub. Laws July ment of the proviso, in a form which is void Sess. 1889, p. 136, c. 816, § 4. It thus appears for uncertainty, does not express the true inthat the right of "local option" on the part tent and meaning of the Legislature, because of all the towns and cities of the state has it does not mean anything at all. We have been for many years recognized and preserv- already, in the rescripts above quoted, suffied by the General Assembly as an important ciently considered and answered in the afpart of the system adopted for the "suppres- firmative the question whether the remainder sion of intemperance."

of section 4, after striking out the proviso It is to be noted that prior to June 1, 1882, forms in itself a clear, complete, and intel. local option might be exercised in towns at ligible statute, and have shown how the same the request of only five qualified electors, should be administered. and that after June 1, 1882 (chapter 326, p. We believe that we have found and de1, Pub. Laws of 1882), and down to the adop-clared what was the true intent of the Gention of the prohibitory amendment, local op- eral Assembly in this matter and have decide tion might be exercised in towns at the re ed this cause, so as to preserve that true inquest in writing of only 10 qualified electors; tent in accordance with principles of such and it is also to be noted that the peremp- universal acceptance in the courts, that the tory requirements as to voting at each an- citation of authority is unnecessary. All of nual election for or against the granting of li- the cases cited on the briefs, so far as they censes in Providence and Pawtucket appearing apply at all, support the same general docin Pub. St. 1892, c. 87, 88 3, 4, were enacted trine that we have followed above as to the by the General Assembly as to Pawtucket, by duty of the court to ascertain the “true inPub. Laws, p. 116, c. 858, passed April 19, tent” of the General Assembly in construing 1881, and as to Providence by Pub. Laws, p. statutes. None of the cases cited is so nearly 149, c. 889, § 3, passed April 29, 1881. Each similar to the case at bar as to give us direct and all of these provisions were simple, clear, aid in construing the language here in quesand easily understood and administered. Aft- tion. And there is no case cited where a proer the annulment of the prohibitory amend- viso, which is void merely because it is meanment, when the General Assembly by Pub. ingless, has been held to have the effect of Laws 1889, p. 133, c. 816, passed August 1; rendering an entire section void, where the re 1889, re-established a license system, it still mainder of the section is capable of a clear showed its intention to preserve the local construction and of enforcement. The cases option features of the former statutes by the cited, where a proviso, or a distinct section, general language of section 4; and it also has been held to have the effect of nullify. intended, beyond question, to make this law ing a whole section or a whole act, are cases applicable throughout the state under one where the intention of the legislation was general rule, so that there should no longer perfectly clear and intelligible, and where be one rule in the towns and another rule in such intention so clearly expressed made the the cities of Providence and Pawtucket. It act unconstitutional, and therefore void; and doubtless supposed that this intention had where the court, having ascertained what been fully carried out in both particulars, was the clear intention, have found that the and that the section as passed did furnish a act without the obnoxious portions would not method by which a vote should be taken on

express the true intent. We are therefore ly at the instance of a certain number of of the opinion that a review of the authoriqualified electors expressed in a definite man

ties cited on the briefs would serve no usener. We cannot suppose that the General ful purpose, but would unnecessarily encumAssembly knew that the proviso was so vague ber the opinion. and indefinite as to be void for uncertainty, and that it knowingly passed such a proviso intentionally for the purpose of annulling

(29 R. I. 390) the earlier general words of section 4, and

JASTRAM v. MCAUSLAN et al. so as to make them inoperative. Nor can we suppose that, as urged by the petitioner, it (Supreme Court of Rhode Island. Jan. 4, 1909.) would not have passed this statute without 1. CONTEMPT ($ 66*) - CIVIL CONTEMPT – APthis proviso. If it had understood that this proviso would render the whole section in

An appeal lies from orders in proceedings

for civil contempt. operative, we are convinced that it would have attempted to so change it as to make Cent. Dig. 88 223-228; Dec. Dig. $ 66.*]

[Ed. Note.-For other cases, see Contempt, it accomplish the real intent. The consider

OR PAYMENT OP ation of the entire history of this legislation, 2. CONTEMPT ($ 25*)-ORDERS

MONEY-ENFORCEMENT. as above set forth, as well as the frame of

A decree for payment of money may be ensection 4 itself, convinces us beyond a doubt forced in chancery in proceedings for contempt that the real, primary, and true intent was [Ed. Note.-For other cases, see Contempt, to continue and preserve the right of “local | Cent. Dig. $$ 75–78; Dec. Dig. $ 25.*]


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3. CONTEMPT ($ 25*)-ORDERS FOR PAYMENT OF | ed to this court. The respondents have movMONEY-ENFORCEMENT.

The power of a chancery court to punish ed to dismiss the appeal on the ground that by imprisonment for contempt for failure to pay no appeal lies in such case, and, saving their as directed by its decree is not imprisonment rights under that motion, contend that they for debt, but rests on the power of the court to are not in contempt of the decree aforesaid. vindicate its authority and to punish for defiance thereof.

The motion to dismiss the appeal must be [Ed. Note. For other cases, see Contempt, denied. The distinction between criminal Cent. Dig. $$ 75-78; Dec. Dig. $ 25.*]

contempts and those which are civil in their 4. CONTEMPT ($ 25*)—ORDERS FOR PAYMENT nature is well settled; and it is well settled, OF MONEY-ENFORCEMENT.

also, that an appeal will lie in the latter class A court of chancery may punish by impris

of cases. onment for contempt for failure to pay as di

Bessette v. W. B. Conkey Co., 194 rected by its decree, though execution might U. S. 324, 24 Sup. Ct. .665, 48 L. Ed. 997. have issued.

Thus, in Romeyn v. Caplis, 17 Mich. 449, [Ed. Note.-For other cases, see Contempt, 454, 435, it is said of an order adjudging a Cent. Dig. $$ 75–78; Dec. Dig. $ 25.*]

respondent in contempt for the violation of 5. CONTEMPT (8 66*) — ORDERS – APPEALABIL

an injunction: “It has been contended beITY—“FINAL DECREE."

A decree denying and dismissing a petition fore us that the order in this case was not that defendant trustees be adjudged in contempt one from which an appeal could be taken, for not paying to complainant a specified sum since the appellee did not claim that an acin satisfaction of a decree previously entered determines the right of complainant, and is a tual loss or injury had been produced to the "final decree." within Const. Amend. art. 12, & party by the misconduct alleged, and did not 1 (Laws 1903, p. 2, c. 1089), granting to the ask for any sum to indemnify him. I think Supreme Court appellate jurisdiction on all that this position cannot be sustained. questions of law and equity. [Ed. Note.-For other cases, see Contempt,

The order complained of was final, Cent. Dig. 8 224; Dec. Dig. 8 66.*

and not merely a step in the course of proFor other definitions, see Words and Phrases, ceeding contemplating further action by the vol. 3, pp. 2774-2798; vol. 8, p. 7663.)

court in relation to the same matter; and 6. CONTEMPT (§ 24*)—DECREE OF COURT-V10- it belonged to that class of proceedings which LATION.

Where a decree requires trustees to pay to are provided to secure obedience to the necesa specified person dividends and income from sary processes of courts in civil cases. the trust estate collected by the trustees, they *

The right of appeal in similar cascannot justify a nonpayment by showing that no part thereof is available for such payment; les has long been recognized and sanctioned and where they have devoted the same to other elsewhere, and the necessity therefor will purposes. they must reimburse the fund from not be denied.” See, also, City of Newport their individual estates. [Ed. Note.--For other cases, see Contempt, 435, affirmed in Nienaber et al. v. Tarvin,

v. Newport Light Co., 92 Ky. 445, 17 S. W. Cent. Dig. 88 72, 73; Dec. Dig. 8 24.*] 7. APPEAL AND Error ($ 1207*)—DisPOSITION Leftwich, 41 Minn. 42, 42 N. W. 598; Ball

104 Ky. 149, 157, 46 S. W. 513; State v. OF CAUSE ON APPEAL.

A decree entered by the superior court as ston Spa Bank v. Marine Bank of Milwaudirected by the Supreme Court is in effect the kee, 18 Wis. 515; People v. Simonson, 9 decree of the Supreme Court.

Mich. ,492; Hundhausen v. U. S. Marine [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 4696; Dec. Dig. § 1207.*]

Fire Ips. Co. et al., 5 Heisk. (Tenn.) 702; In

re Day, 34 Wis. 638; In re Milburn, 59 Wis. Appeal from Superior Court, Providence 24, 17 N. W. 965; Baldwin v. Miles, 58 Conn. and Bristol Counties; William H. Sweetland, 496, 20 Atl. 618; State v. Horner, 16 Mo. Presiding Justice.

App. 191-195 et seq. Suit by Edward P. Jastram against Amelia

That a decree for the payment of money B. McAuslan and another. From a decree

may be enforced in chancery proceedings for dismissing the petition, complainant appeals. contempt has long been settled. Thus, in Re Reversed and remanded.

Meggett, 105 Wis. 291, 81 N. W. 419, it is Edwards & Angell (Albert Gerald, of coun- said in a case where a mortgagor after foresel), for appellant. Tillinghast & Tilling-closure had collected rents in violation of an hast and Bassett & Raymond (Russell W. injunction and was ordered to repay them : Richmond, of counsel), for respondents. "The court having exercised its jurisdic

tion and its discretion upon the facts so preBLODGETT, J. From a decree, entered in sented, and having ordered immediate paythe superior court, denying and dismissing ment of the money, had it not power to eithe complainant's petition that the respon- ther punish nonpayment or compel payment dent trustees be adjudged in contempt for by commitment for contempt? Such power not paying to the complainant the sum of has always been deemed inherent in courts $11,732.80, together with interest at the rate of equity, as essential to the enforcement of of 6 per cent. on the sum of $3,302.90, from their decisions. Indeed, it was anciently March 13, 1907, to the date of satisfaction of their only weapon for enforcing their comthe decree heretofore entered in this cause mands." And the power thus exercised is on April 1, 1908, the complainant has appeal- held not to be imprisonment for debt, but is thus defined (page 298 of 103 Wis., page 422 The appeal is accordingly sustained, tho of 81 N. W.): “It is the exercise of the con- decree of the superior court dismissing the tempt power inherent in courts of equity to petition is reversed, and the cause is remand. re-establish a status quo wrongfully disturb- ed to the superior court, with direction to ed. The punishment inflicted, even in civil enter a decree that the respondents and each contempts, where indemnity to another party of them are adjudged to be in contempt, is the dominant purpose, nevertheless rests and that they may purge themselves of that upon the power of the court to vindicate its contempt by the payment of the amount nam. own authority, and to punish for defiance ed in the decree aforesaid, with interest thereof, but to adjust that punishment so as thereon from the date of the decree, within to protect or enforce private rights." See, 60 days, together with the costs of this apalso, Richardson v. Jones, 3 Gill & J. (Md.) plication. 163, 183, 22 Am. Dec. 293 et seq (1831); Lester v. People, 150 Ill. 420-425, 23 N. E. 387, 37 N. E. 1004, 41 Am. St. Rep. 375; Bris

LEDERER REALTY CORP. V. HOPKINS. tol v. Pearson, 109 N. C. 718, 13 S. E. 925. And this may be done although execution

(Supreme Court of Rhode Island. Dec. 28, might also have issued. Hall et al. v. Dana, 1. STATUTES ($ 205*) - CONSTRUCTION – GEN

1908.) 2 Aik. 381; Brockway v. Copp, 2 Paige, Ch.


The intention of the whole act will control For this purpose the decree of the superior interpretation of the parts. court, denying and dismissing the petition,

[Ed. Note.-For other cases, see Statutes, may well be held to be a final decree, inas- Cent. Dig. & 282; Dec. Dig. $ 203.*] much as it determines the right of the pe


PEAL. titioner in the premises, and the broad grant

Repeals by implication are not favored; it of "final revisory and appellate jurisdiction being the duty of the court to so construe the upon all questions of law and equity,” grant acts, if possible, that both shall be operative. ed to this court by section 1 of article 12 of Cent. Dig. $ 228; Dec. Dig. $ 158.*]

[Ed. Note.-For other cases, see Statutes, Amendments to the Constitution (Laws 1903, p. 2, c. 1089), may well be invoked in such a 3. MUNICIPAL CORPORATIONS (8 601*)—BUILD


Pub. Laws 1878, p. 116, c. 688, § 7, providThe respondents urged in the court below, ing that alterations in buildings in the city of and still maintain that contention in this Providence should be subject to the regulations court, that under the language of the decree be raised 'or built upon in such manner that,

of the law, and that "no building * * shall of April 1, 1908, they were only required to were such building wholly built or constructed pay from the trust funds in their hands the after the passage of this act, it would be in vioamount aforesaid, and the superior court repealed by section 34 of chapter 688 (page 150),

lation of any provision hereof," is not impliedly adopted this construction and dismissed the. as amended by Pub. Laws 1994, p. 29, c. 1339, petition. Here there was error. The amount $ 6, permitting the alteration of any wooden so required to be paid is specifically declared building, subject to the approval of the building to be dividends and income from the trust increased, because the two acts may be so con

inspector, provided its area or height is not estate which had heretofore been received by strued that both may be operative, and thus acthe respondents as trustees, and to which the complish the legislative intent and policy to incomplainant is entitled. There is no limita- crease the strictness of such regulations. tion of language here to a payment out of Corporations, Dec. Dig. & 601.*j

[Ed. Note.-For other cases, see Municipal the trust estate only; nor, indeed, should such a limitation have been in the decree.

Appeal from Superior Court, Providence The respondents are found to have collected, and Bristol Counties; Charles F. Stearns, as trustees, income of the trust estate be- Judge. longing to the complainant, and this, in con

Petition for mandamus by the Lederer templation of law, they should pay him on Realty Corporation against Spencer B. Hopdemand; but the duty to pay the complain- kins, inspector of buildings. From a judg. ant dividends and income of the estate which ment dismissing the petition, the petitioner they have collected is in no wise to be prej- appeals. Affirmed. udiced by the fact that the respondents may The following is the opinion of Stearns, have devoted the complainant's property to J., of the lower court: other purposes. If they have done so, they "This is a petition for a writ of mandamust reimburse him from their individual mus, by which the question is raised as to the estates, and cannot be heard to claim that legal right of the petitioner to make certain they have none of the trust income now avail. proposed changes, etc., in the exterior and able therefor.

interior of a certain wooden building situated It is proper to observe that the decree of on the corner of Clemence and Weybosset April 1, 1908, was framed by this court, and streets in the First, or close, district, of the that the superior court was directed to enter city of Providence. The building now has it as thus framed. In effect, therefore, the three stories in the front and two stories decree in question is the decree of this court. I in the rear. The plan of the new building


calls for a three-story wooden building, both , part of the city most closely bullt, by rein front and in rear, thereby increasing the straining the use of combustible material in rear of the building by one story, the height buildings. The policy of the Legislature, as of the new building, however, not to exceed seen in the various changes of the law, apthe height of the present building. To make pears to be to increase the strictness of such the proposed changes, it is necessary to tear regulations, and not to relax the strictness of down practically the entire building above the first act. As stated in Lewis' Sutherland the first story, and to build two new stories of on Statutory Construction, p. 370: "The inwood on the present first story. The pro- tention of the whole act will control interpreposed building, when completed, would be less tation of the parts.' And on pages 465 and dangerous as a fire risk than the building 466 the same author says: 'Repeals by implias it now stands. The witnesses differ as to cation are not favored. This means that it is the method of measuring the cubic contents the duty of the court to so construe the acts, of the present building and as to the cubic if possible, that both shall be operative.' contents of the part of the building which "Applying these principles to the acts in is affected by the proposed change.

question and bearing in mind the purpose of "Several questions are raised in this case, the law, it seems to the court that the acts but the first question, which calls for a con- may be and should be construed in a manner struction of certain sections of the building whereby both acts may be operative. If this laws of the city of Providence, is decisive of view is correct, section 7 of the act is still the case. The building law is found in chap- in force, and the petitioner has no right unter 688, p. 116, Pub. Laws 1878, amended by der the law to make the desired changes. chapter 1339, p. 26, Pub. Laws 1894. Section “The petition for writ of mandamus is de 7 of chapter 688 is as follows: "Sec. 7. Any nied.” alteration in or addition to any building al

Thomas A, Carroll and Walter P. Suesman, ready erected, or hereafter to be built, except for appellant. Albert A. Baker, Henry C. necessary repairs not affecting the construc- Cram, and Elmer S. Chace, for respondent. tion of the external or party walls, chimneys or stairways, shall to the extent of such

PER CURIAM. We find no error in the work, be subject to the regulations of this act. No building already erected, or here- decision of the superior court denying the after built, shall be raised or built upon in prayer of the petitioner for a writ of mandasuch manner that were such building wholly built or constructed after the passage of this

The appeal of the petitioner from the judgact, it would be in violation of any provision ment of said superior court is hereby dishereof.' Section 34 of chapter 688, as amend- missed, and said judgment affirmed, and the ed by chapter 1339, $ 6, is as follows: 'Sec.

case is remanded to the superior court for 34. Any wooden building in the First district

further proceedings. may be altered or repaired, subject to the approval of the inspector of buildings, provided its area or height is not increased; ex

(109 Md. 84) cept whenever an old building shall be torn

MEUSHAW v. STATE. down or burned to the extent exceeding one-(Court of Appeals of Maryland. Dec. 2, 1908.) half of such building (such half to be meas

1. LICENSES (8 6*) — MUNICIPAL CORPORAured in cubic feet), the rebuilding thereof

TIONS-POWER-REGULATION OF CITY MARshall be termed the erection of a new build- KET—"Tax.” ing. No wooden building shall be removed The new charter of the city of Baltimore from without to within the First district.? "0 license, “tax, and regulate all businesses,

(section 6), authorizing the mayor and council The petitioner admits that, if said section 7trades, avocations or professions," conferred on is still in force, the proposed building would the city the power to impose a charge on combe a violation of the building law and that mission merchants for the privilege of selling in

the city market; such charge being a tax for he has no case; but the petitioner claims revenue, and not a license or regulation tax. that section 34, as amended, by implication [Ed. Note.-For other cases, see Licenses, repeals section 7, and bases his claim on Dec. Dig. 8 6.* said section 34, asserting that neither the For other definitions, see Words and Phrases, area nor height of the old building is in- vol. 5, pp. 4133-4141; vol. 8, pp. 6867–6886, creased in the new building. Without pass

7706, 7813.) ing upon this point, the court is of the opin- 2. LICENSES (8_7*)-POWER—MUNICIPAL CORion that section 7 of chapter 688 is not re


REASONABLENESS. pealed by said section 34, and that conse

A tax of $200 per year imposed by a muquently the petitioner has no legal right to nicipal corporation for revenue purposes on make the proposed changes, and the inspect- commission merchants using the city market in or of buildings properly refused to issue a had expended large sums of money was not un

the erection and maintenance of which the city permit to the petitioner. The intent of the reasonable. law in question apparently is to reduce the

(Ed. Note.-For other cases, see Licenses, fire risk in the First district, which is the 'Cent. Dig. $ 15; Dec. Dig. $ 7.*)

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