# State v. Harden

> West Virginia Supreme Court · June 8, 1907 · 62 W. Va. 313

URL: https://www.frixlaw.com/law-library/cases/8176086

## Case

- **Full name:** State v. Harden
- **Court:** West Virginia Supreme Court
- **Decided:** June 8, 1907
- **Citations:** 62 W. Va. 313; 58 S.E. 715; 1907 W. Va. LEXIS 40
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Pofeenbarger
- **Judges:** Brannon, McWhorter, Miller, Pofeenbarger, Whom
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by Wiseman v. Calvert, 134 W. Va. 303 (1950).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8176086

## Opinion text

POFEENBARGER, JUDGE:
Whether the defendant John Harden, had a valid license to sell, at retail, spirituous liquors, wine, porter, ale, beer and drinks of like nature, at the time he made the sale of liquor, charged in the indictment against him, as having been unlawfully made, is the sole question presented by this record. That he made a sale of liquor in the town of Point Pleasant, Mason county, West Virginia, within one year next preceding the finding of the indictment, is fully proven and not contested. Whether his license was valid or not, must be determined by the application, to the provisions of the charter of the town of Point Pleasant, which the defendant insists conferred upon the council of said town, sole authority and power to grant such licenses for such sales within the corporate limits of said town, of principles of law and settled rules of interpretation. The question is purely a legal one. It is in no sense a moral question or a question of public policy. It is to be determined solely by legal tests, and not by the personal views, opinions or preferences of anybody, assuming to speak for the general public. It is a question of what the legislature had the power to say and what it did say, as determined by rules of law. In construing statutes, courts have nothing to do with, and cannot consider, matters of public policy, moral justice or expedieny, except in so far as the legislature, by some language used in the statute, has evinced an intention to pursue or advance some particular policy. “Statutes cannot be declared invalid on the ground that they are unwise, or unjust, or unreasonable or immoral, or because opposed to public policy, or the spirit of the Constitution. Unless a statute violates some express pro-' vision of the Constitution it must be held to be valid. These principles are supported by numerous authorities, some of which are referred to in the margin,” Lewis’ Suth. Stat. Con., section 85, referring to probably seventy-five or one hundred decisions, including Dewey v. United States, 178 U. S. 510 , in which Mr.' Justice Harlan said, in reference to the duty of the Court: “ Our province is to declare what the law is, and not, under the guise of interpretation or under the influence of what may be surmised to be the policy of the government, so to depart from sound *318 rales of construction as in effect to adjudge that to be law which Congress has not 'enacted as such,” and further “of course our duty is to give effect to the will of Congress touching this matter, but we must ascertain that will from the words Congress had chosen to employ, interpreting such words according to their ordinary meaning, as well as in the light of all the circumstances that may fairly be regarded as having been within the knowledge of the legislative branch of the government at the time it acted on the subject.” In Brewer v. Blougher, 14 Pet. 178 , Chief Justice Taney said: “ The expediency and moral tendency of this new law of inheritance is a ciuestion for the legislature of Maryland and not for this Court.” Nor is this court at liberty to inquire into the motives of the legislators in voting for a law or to impeach the law on the ground of fraud or corruption, either at the suit of a private person or the state. Lewis’ Suth. Stat. Constr., section 496; Slack v. Jacob, 8 W. Va. 612 . It is conclusively presumed that the legislature has acted from pure motives and had wisdom enough to preclude their having been imposed upon or deluded into unwise legislation. From these rules and principles, no court can depart without violation of law, in deference to public clamor or for other purpose. Though every man in the State should demand of the Court that it annul a law or refuse to sustain it, because, in the estimation of the public, it is an unwise law, or an immoral law, the court could not comply with the demand. Their application must be made to the legislature, the only tribunal having power to grant such relief.
What I have said here, by way of preface to this opinion, is not intended as a reflection upon, or a criticism of, any of my associates, whose judgment has constrained them to differ from me, as to the conclusion and judgment in this case, or the grounds thereof. What I have thus said, has been superinduced by the wide public interest manifested in cases arising under the liquor laws of this State, of which the Court takes judicial notice, to the end that the public may the better understand what the province of the Court is and what it is not, and to show that the courts, in disposing of cases, can no more lean to the one side than to the other, from consideration of fear, or out of deference to public *319 opinion, or by way of conforming to personal views and opinions, concerning public policy and expediency, in disposing of any case.
A preliminary, but vital question in the case is whether the legislature has power to confer upon municipal corporations, sole and exclusive power to grant or refuse licenses for the sale at retail of spirituous liquors within their corporate limits. That it may do so, and, to that extent, deprive county courts of their jurisdiction in respect to such sales or traffic, has been expressly decided by this Court in Ward & Co. v. County Court, 51 W. Va. 102 , and Wilson v. Ross, 40 W. Va. 278 ; and in Moundsville v. Fountain, 27 W. Va. 182 , Judge Green, speaking for this Court, expressed the opinion that the legislature is not restrained, by the Constitution, from taking the jurisdiction out of the hands of a county court and vesting it in' a municiual corporation. What was said in Moundsville v. Fountain , is probably an obiter dictum, but the other two cases have expressly and unequivocally enunciated the doctrine as a matter of positive and direct adjudication, that question being in each of the' cases necessarily and inevitably involved. Ward v. County Court declares in point 2 of the syllabus: “ The provision of chapter 44, Acts of 1899, that the council of the City of Grafton shall have exclusive power to grant liquor licenses within it, is not repugnant to section 34, Art. YIII. of the Constitution, or any other clause therein.” Wilson v. Ross asserts the same proposition in the following terms: “The act of February 24, 1869, amending the charter of the town of Ceredo, confers upon the council of that town the sole power to grant or not grant a state license for the sale of intoxicating liquors within the limits of said town. Such act is not repugnant to the Constitution of the State (see section forty-six of article six, and section twenty four of article eight, of the State Constitution,) and such sole power to grant such license or not is recognized by section eleven of chapter-thirty two of the Code as vested in the municipal authorities of Such town.”
While it is undoubtedly within the power of this Court to overrule its own erroneous decisions and declare them never to have been law except for the purpose of the par *320 ticular cases in which they were rendered, and though it is sometimes done, such action is never taken until after the court has become fully convinced of their unsoundness. Nothing produced in the argument of this case impresses upon my mind any serious question as to the correctness of the views and conclusions expressed by the Court in the cases referred to. The argument against them is all predicated upon that portion of section 24 of Article VIII. of the Constitution which reads as follows: “The county courts, through their clerks, shall have the custody of all deeds- and other papers presented for record in their counties, and the same shall be preserved therein, or otherwise disposed of, as now is, or may be prescribed by law. * * ■* * They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings, ferries and mills, with authority to lay -and disburse the county levies. Provided, That no license for the sale of intoxicating liquors in anjr incorporated city, town or village, shall be granted without the consent of the municipal authorities thereof, first had and obtained.” If this provision stood alone, unlimited and unqualified by anything else in the Constitution relating to the sale of intoxicating liquors, the contention for exclusive jurisdiction in the county court, beyond the reach of legislative powers, would be plausible, but it does not stand alone and unqualified. Section 46 of Art. VI. relating to the powers of the legislature under the Constitution, says: “Laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State.” Section 24 of Art. VIII. does not expressly say the county courts shall have sole and exclusive power to grant or refuse licenses for such sales. In order to so hold and declare, the court, would be bound to say that the matter of granting or refusing licenses belongs to the internal police and fiscal affairs of the counties, and, ordinarily, this might be true; but it was competent for the people, in adopting the Constitution, to say that, for certain purposes, among which is the matter of jurisdiction to regulate or prohibit, it shall not be deemed a part of the internal police and fiscal *321 affairs of a comity, but a part of the police and fiscal powers of the State and left under the control of the legislature. Section 46 of Art. VI seems plainly to have been intended to effect this result, and, in the absence of any constitu-tutional provision to the contrary, it would be so. At the time of the adoption of the Constitution, many, no doubt most, of the county courts of the State, possessed and were exercising, under the statute then in force, power to grant or refuse license. It was apparent, therefore, to the framers of the Constitution and the people that, until the legislature should see fit to exercise this power, under section 46 of Art. VI. the county courts would continue, under the then existing laws, to exercise jurisdiction, respecting the granting or refusing of licenses. There was a possibility that the legislature might never see fit to remove this jurisdiction from the county courts and vest it elsewhere. In view of these considerations, the framers of the Constitution and the people deemed it wise to impose a limitation upon the powers of both the legislature and the county courts, for the protection of municipal corporations, by ordaining the provision “That no license for the sale of intoxicating liquors in any incorporated city, town or village, shall be granted without the consent of the municipal authorities thereof, first had and obtained. ” A Constitution, for the most part, may be construed as a great compact or agreement, entered into by all the people of the State, for and on behalf of .themselves and those who shall come after them,, until such time as it is abolished, changed or modified.. An elementary rule of construction, applicable to every kind of written instruments, is that all parts of the instrument under consideration shall be considered, and every portion, paragraph, clause and word given effect, if it be susceptible of such construction, and, whether it be so susceptible or not, all of its parts must be considered, and no court is warranted in expunging or declaring meaningless or ineffective any word, phrase or clause, except in the case of irreconcilable conflict and repugnance. It is equally as well settled by authority and consonant with reason and common sense, that no mere implication, not necessary, in the sense that it is so plain that the contrary thereof cannot be supposed, can ever be permitted to overcome, break *322 down, or cutout, as meaningless or irreconcilable, an express provision of a constitution or any other instrument. The language of section 46 of Art. VI. is plain, positive and unqualified. It says laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State. There is no qualification or limitation as to the mode of regulation. That is left, by the language of this section, to the discretion of the legislature. No other express provision of the Constitution seems to qualify or restrain it in any manner or to any extent, except the proviso which has been quoted from section 24 of Art. VIII. Whether that is a limitation upon the power reserved by •section 46 of Art. VI. we do not undertake to determine ■because it is unnecessary. No such question arises in the case. But if it is, it does not by any express terms say that jurisdiction for the granting or refusing of licenses is irrevocably vested in the county courts. It suffices the purposes of the proviso to say that, when the county courts, by virtue of laws passed by the legislature, have the power to grant licenses, they shall not license the sale of liquors in any incorporated city, town or village without the consent of the municipal authorities thereof, first had and obtained. This gives that proviso effect, a broad effect, operative on both county courts and the legislature, and that is all the rule of construction requires of the court. There is no authority or justification in any rule of interpretation for carrying it beyond this, so far as to cut down the word “regulating” in section 46 of Art. VI. That part of section 24 which says the county court, under such regulations as may be prescribed by law, shall have the superintendence and administration of the internal police and fiscal affairs of the counties, may also have effect, a broad, sweeping effect, without •cutting down or impairing thfe language of section 46 of Art. VI. Until the legislature otherwise ordains, the matter of licenses may be, and probably is, in a legal sense, a part of the internal police and fiscal affairs of the counties. Said section 46 says, not that the legislature shall, but that it may, pass laws regulating or prohibiting the sale of intoxicating liquors within the limits of the State. This is broad enough to authorize the legislature to confer such power upon the county court. It would be one mode of regula *323 ting the traffic, but not the only one conceivable. It was apparent to the framers of the Constitution that this might be the mode selected by the legislature, and, in that event, the county courts would have the superintendence and supervision of the traffic in liquors to the extent aforesaid. That, in a practical sense, the people could vest any particular power in the county court permanently or temporarily, absolutely or conditionally, is plain. That they had the power, in adopting the Constitution, to accomplish this is beyond question. The Constitution is the paramount. law and the people of the State were the authors of it. Their power to do anything they saw fit, that did not infringe upon, or fall under the condemnation of, some provision of the Constitution of the United States, was absolutely without limit. In framing the Constitution and adopting it, they used language, which, according to its literal interpretation, reserves to the legislature unlimited power over the liquor traffic. Effectual regulation might require that the superintendence and administration of the liquor traffic be wholly withdrawn from the county courts and placed elsewhere. It was a matter which so impressed itself upon the authors of the Constitution that they felt called upon to deal with it, and provide for its regulation, by a special clause in the Constitution. If they deemed it a part of the police and fiscal affairs of the counties, they may have foreseen the necessity, at sometime, of power in the legislature to withdraw it from the county courts and commit it to some other tribunal or officer, and they used in the Constitution language of sufficient breadth, and apt phraseolgy, to accomplish this result, and language which cannot be made to have any other effect without qualifying or restraining it by a mere unnecessary implication, arising from language used in another part of the Constitution.
Courts are bound, in construing a constitution, statute or other instrument, to presume that the authors of the instrument had some purpose in inserting every clause found in it, and every word of the clause, and intended it to have some effect. If we say section 46 of Art. VI. only reserves to the legislature the power to- prohibit the sale of intoxicating liquors and to prescribe regulations for the govern *324 ment of county courts in granting or refusing licenses, we deny to so much of that clause as relates to regulation any purpose whatever. It was wholly unnecessary and vainly and futilely inserted in the Constitution, if it meant no more than this; for section 24 of Art. VIII. made the superintendence and administration of the county courts subject to “such regulations as may be prescribed bylaw.” Unless we say, therefore, that the power to regulate reserved to the legislature by section 46 of Art. VI. meant something more than this, we must say that it means nothing, and that we are not at liberty to say, as will be shown by abundant authority, hereinafter cited.
The power to regulate the traffic in liquor is, I repeat, a part of the sovereign power of the State, in the absence of some constitutional provision, eliminating it therefrom and vesting it elsewhere. Such powers are not generally cut off, except by express provisions and never by any implication, unless it be a necessary one. There must be something in the constitution so plainly effecting this separation or delegation of power than the contrary cannot be reasonably supposed. Every presumption is against it. . This Court, in Dillon v. County Court of Braxton County, 55 S. E. 382 , declared, in reference, to the power of taxation, that “It is so high and extraordinary in character that it is presumed to remain in the legislature until the contrary is shown by express provision or the equivalent thereof. * * * Hence it cannot be maintained that the people, in adopting the Constitution, recognized a legislative power of this kind in these local tribunals, which they signified their intention to leave in their hands by not expressly divesting them. No clause in the Constitution, either in express terms or by necessary implication, denies to the lawmaking body the exencise of this species of legislative power, which must reside in it if it has not been taken away. ” This same rule must be applicable to a subject, deemed by the people to be so important as to require a special provision, respecting it, in the organic law of the State.
The rule of contemporaneous construction also sustains the decisions of this Court in Wilson v. Ross and Ward v. County Court and the dAcinum, in Moundsville v. Fountain . At the date of the adoption of the Constitution in 1812, and long *325 before that time, certain municipal corporations of this state had the sole and exclusive power, under the statute, to grant or refuse license. This is asserted by Judge Ghees' in Moundsville v. Fountain , and the act of the legislature passed November 28, 1863, recognizes that state of affairs. Section 3 of that act says: “Where the council of a city or town is, by its charter or any law of this state, authorized to grant or refuse licenses for any particular purpose, no license issued under this act shall be deemed to authorize any person to do any act, or carry on any business, calling or profession within the corporate limits of such city or town without having obtained license therefor as required by the by-laws or ordinances of such city or town, but all licenses granted under such by-laws or ordinances shall be assessed with and pay to the state the same taxes as other licenses of like kind, in addition to any tax passable thereon to such city or town.” Section 4 of that act says: “Licenses to keep a hotel or tavern; or to sell drinks or refreshments at a public theatre; or to sell at retail spirituous liquors, wines, porter, ale, beer, or any drink of like nature; or to keep for public use or resort a bowling alley or saloon, billiard table or table of like kind, shall be issued only when authorized by resolution of the board of supervisors of the county, except where the council of a city or town are authorized, as aforesaid, to grant such licenses, in which case they shall be issued only when authorized by such council.” Chapter 32 of the Code of 1868 recognizes the same condition of things. These laws, conferring ux)on certain municipal corporations sole and exclusive power to grant or refuse licenses, for the sale at retail of spirituous liquors were in force at the adoption of the Constitution. Nothing in the Constitution expressly repeals them. On the contrary, the Constitution itself provides as follows: “Such parts of the common law, and of the laws of this state as are in force when this article goes into operation, and are not repugnant thereto, shall be and continue the law of the state until altered or repealed by the legislature. ” Article VIII., section 21. These statutory provisions, recognizing such powers in municipal corporations, have remained in the Code and acts of the legislature, from 1863 down to the present time, and some of these powers were held long before 1863, as in the case of the city *326 of Wheeling. This fact signifies that the legislature had construed the Constitution, from the very date of the adoption of that instrument down to the present time, as authorizing it to confer upon municipal corporations the power in question, and the courts and people of the state have acquiesced in that construction for more than forty years and even longer. Now, the rule declared by an authority of no less renown than John Marshall, Chief Justice of the United States, in the great case of McCulloch v. Maryland, 4 Wheat. 316, 421 , is that this acquiescence is so potent on the question of the construction of a constitution that courts will give heed to it and adopt it, unless it appears to be plainly wrong. After having said that the power to incorporate a national bank “being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it,” he continued as follows: “The propriety of this remark would seem to be generally acknowledged by the universal acquiescence in the construction which has been uniformly put on the 3d section of the 4th article of the Constitution. The power to ‘make all needful rules and regulations respecting the territory or other property belonging to the United States,’ is not more comprehensive, than the power ‘to make all laws which shall be necessary and proper for carrying into execution’ the powers of the government. Yet all admit the constitutionality "of a territorial government, which is a corporate body.” The same rule had been laid down, some sixteen years before, by Mr. Justice Patterson, of the same Court, in Stuart v. Laird, 1 Cranch 299 , in the following terms: “Another reason for reversal is, that the judges of the Supreme Court have no right to sit as circuit judges, not being appointed as such, or, in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.” *327 In Holmes v. Hunt, 122 Mass. 505 , ( 23 Am. Rep. 381 ,) the learned Chief Justice Gray said, concerning the constitutionality of the provisions of a certain statute, that it had been substantially re-enacted, upon each revision of the statutes of the commonwealth since 1817, a period of sixty years, and continued as follows: “They have been constantly applied in practice, and repeatedly expounded by this Court, without a doubt of their validity being suggested, for nearly sixty years. After so long a practical construction and acquiescence by the legislature, by the courts, and by all parties to judicial proceedings, it would require a very clear case to warrant the court in setting them aside as unconstitutional.” See also Packard v. Richardson, 17 Mass. 122 ; Commonwealth v. Parker, 2 Pick. 550 ; Cooley’s Cons. Lim. 69; Fullington v. Williams, 98 Ga. 807 ; State v. Holcomb, 46 Neb. 88 ; Wallace v. Bradshaw, 54 N. J. L. 175.
That certain municipal corporations in the state had sole and exclusive power to grant and refuse licenses at the date of the drafting of the Constitution, and its adoption by the people, together with the absence of any express provision in the Constitution which purports to take away such sole and exclusive power, and the presence of a clause in the Constitution continuing in force all laws, operative at the date of its adoption, argues conclusively that there was no intention, on the part of the people, to put into the hands of county courts jurisdiction to grant licenses within the municipal corporations which then had such sole and exclusive jurisdiction. Hence, it is thus made manifest that section 24 of Article VIII. of the Constitution was not intended to confer upon county courts sole and exclusive jurisdiction throughout all the counties of the state to grant or refuse licenses; and it never had, nor could have had, the application, force and effect, claimed for it by those who regard it as having lodged that jurisdiction irrevocably in the county courts. Thus, it appears that the framers of the Constitution themselves, construed their own product as this Court and the legislature have since construed it.
No doubt all this reasoning and authority would have been set forth by the able judges who prepared the opinions in Wilson v. Ross and Ward & Co. v. County Court, had they deemed it necessary. It is not to be assumed, by members *328 of the legal profession or the public in general, that courts, in delivering opinions, set forth in every instance all the reasons that can be assigned for their conclusions, and they are not required to do so. Unfortunately, however, it has happened, in respect to these decisions, that upon the assumption that all the reasoning was sot forth in the opinions that could be given, the decisions themselves have been repeatedly called in question, and I have here discussed the matter at considerable length for the purpose of disabusing the public mind of the impression that the conclusion reached in them is unsound, or dubious in its foundation.
The remaining question is whether the legislature, having the power, as has been shown, to confer upon municipal corporations sole and exclusive authority to grant licenses for the sale at retail of spirituous liquors, has exercised that power in respect to the town of Point Pleasant. The claim that it has done so, is based upon two grounds, one of which is constituted by the provisions of chapter 40 of the acts of 1891. The other is an alleged amendment, made to the charter of the town of Point Pleasant, by the circuit court of Mason county, by an order entered in its chancery order book, on the 9th day of May, 1883, which amendment the court made, or attempted to make, under and by virtue of chapter 78 of the acts of 1877, providing for the amendment of the charters of municipal corporations, containing a population of less than two thousand, which act has since been incorporated into chapter 47 of the Code as section 47a. The material parts of the order read as follows: “It is adjudged, ordered and decreed that-the charter of said town of Point Pleasant be amended as follows, towit: ‘The council of said town of Point Pleasant shall have the sole power to grant all licenses within the corporate limits of said town.’ Said amendment shall go into effect from and after this day,” As the authority claimed by the town is based, by this Court, upon the act of 1891, what I intend to say, concerning the amendment, will be postponed, until after an examination and analysis of the provisions of the ac-t of 1891.
The town of Point Pleasant was not incorporated by any circuit court under the provisions of chapter 47 of the Code, but by a special act of the General Assembly of Virginia, passed on the 19th day of December, 1794. This act of in *329 corporation was amended and re-enacted by an act of the •General Assembly of Virginia, passed on the 30th day of March, 1860. The sections of the act, necessary to be considered upon this inquiry, read as follows: “Sec. .35. The council shall prescribe, by ordinance, the manner in which licenses of all kinds shall be applied for and granted, and it shall require the payment of the taxes thereon before delivery to the person applying therefor. ” “Sec. 36. The provisions ■of the 29th section of chapter 32 of the Code of West Virginia, relating to state licenses, shall be deemed applicable to licenses of a similar character to those therein mentioned, when granted by or under authority of the council of said town. Licenses for the keeping of dogs shall also expire on the thirtieth day of April next after they are granted, and all other licenses may bo for such time. as the council shall ■determine.” “Sec. 40. All acts or parts of acts inconsistent with this act are hereby repealed; but this act shall not be construed to repeal, change, or modify any previous ac't not inconsistent with this act authorizing said town to contract debts, or to borrow money, or to take away any of the powers conferred upon said town, or upon the mayor or council or any of the officers thereof, conferred by general law, or by any amendment of its charter heretofore made.by the circuit court of Mason county, except so far as the same may be inconsistent with the powers hereby conferred.”
From the very language used by the legislature in the provisions of said act, chapter 40, considered and analyzed under, ■and in the light of, the rules of interpretation and construction, observed and enforced by the courts of the land, the intention of the legislature, concerning power in the council •of the town of Point Pleasant to grant or refuse licenses, for state, as well as for municipal purposes, must be ascertained; and, when so ascertained, it must have force and effect, no matter what views the Court maj^ entertain as to the wisdom, expediency or morality of the statute. We are not at liberty to resort to mere surmise or conjecture as to what the legislature intended. Except to a limited extent, and in a qualified sense, we cannot look outside of, or beyond, the language used in the act, and in so far as it is allowable, to look beyond the terms of the act, nothing can be considered or allowed to affect the question except those matters to which *330 the language of the statute refers in some manner. • While there are presumptions which the court must keep in mind and enforce, where there is necessity for it, and where the language of the statute is such as to make them applicable, and though things not expressly mentioned, but deemed to have been within the knowledge of the legislature, and to have been influential in the selection of the terms used by that body, may be regarded, nevertheless everything considered, upon' the inquiry for the legislative intention, must have some substantial connection with the terms used. If it be something that is not expressly mentioned, it must be manifest that, by reason of its connection with the subject matter of the statute or its purpose and object, it entered into the deliberation of the legislature in the passage of the act.
In determining what the language of a contract, statute or other instrument means, it is absolutely necessary to bear in mind the subject matter of the instrument, and equally important to have regard to the purpose intended to be accomplished and effected, concerning the thing to which the instrument relates. To illustrate, if the paper be a contract, the first inquiry is whether it relates to land, horses, cattle or some other subject. If it appears to relate to land, the next inquiry is the identity of the land, or rather the ascertainment of what particular land it relates to. Then we look to see whether the language o;f the contract purports to be a lease or a conveyance of it, and, if it be a lease, we must find, from the terms of the contract, the purpose of the lease, the use to which the land is to be put. In most instances, the instrument is described as a deed, lease or contract, as the case may be, and that necessarily has weight in determining what it is, if the other terms are uncertain in their meaning. All this is nothing more than mere common sense, formulated into rules, and it applies to statutes just as much as to ordinary instruments, evidencing contracts between man and man.
The title of every statute sets forth its object and purpose and discloses its subject matter. Thp title of the act, now constituting the charter of the town of Point Pleasant, read in the light of the two previous acts which it amends and re-enacts, shows that the subject matter is the munic *331 ipal corporation, known as the town of Point Pleasant. It also shows what purpose was intended with reference to that corporation. It says the purpose is not to deal with some particular powers of that corporation, by amending, repealing or altering the provisions of the previous acts, but to “designate the limits of said town * * * and to prescribe and define the powers and duties of the authorities thereof.” It was not intended to deal specifically with that charter, but generally, comprehensively and completely, so that, instead of looking to chapter 44 of the acts of the General Assembly of Virginia, passed on the 19th day of December, 1794, and chapter 201, passed by said General Assembly on the 30th day of March, 1860, and chapter 47 of the Code of West Virginia, to ascertain the limits and powers and duties’of the corporation, it should be necessary in the future to look only into chapter 40 of the Acts of 1891.
The rules of construction, applicable to a statute having such a purpose as this, differ from those applicable to a statute dealing specially, and in a limited sense, with its subject matter. It becomes a substitute for all other statutes previously enacted, relating to the same subject matter, in so far as the provisions of the previous statutes are inconsistent with its terms. By reason of its scope and purpose, it becomes, to the full extent of the express terms, used, and necessarily implied, the exclusive rule and law upon that subject, and for that reason, any provision of any previous statute which conflicts with it, is repealed by implication, and this is mere matter of intention, arising by inference from the character of the act.
The rule that statutes relating to the same subject are to be construed together and harmonized, if possible, has. no application in construing an act intended to be complete in itself. Lewis. Suth. Stat. Con. section 447. Hamilton v. Rathbone, 175 U. S. 414 , in which Mr. Justice Brown said: “ Where the meaning of the revised statutes is plain it (the court) cannot recur to the original statutes to see if errors were committed in revising them,” and, again,. “The whole doctrine applicable to the subject may be summed up in the single observation that prior acts may be resorted to to xoire, but not to create, an ambiguity;”' *332 •and further,.“The main object of the revision was to incorporate all the existing' statutes in a single volume, that •a person desiring to know the written law upon any subject might learn it by an examination of that volume, without the necessity of referring to prior statutes on the subject.” The Am. & Eng. Ency. Law, Yol. 26, p. 731, says: “Where the later of two acts covers the whole subject matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one, though the two are not repugnant.” Eor this, numerous cases are cited, among which is Dist. of Columbia v. Hutton, 143 U. S. 18 , fully sustaining the text, as well as the proposition that the old and new statutes are not regarded as laws in pari materia. The court said: “The powers which are conferred are organic powers. We look to the act itself for their extent and limitations. It is nqt one act in a series of legislation, •and to be made to fit into the provisions of the prior legislation.”
“A subsequent statute revising the whole subject matter of a former one and evidently intended as a substitute for it, though it contains no express words to that effect, must on principles of law as well as in reason and common sense operate a repeal of the former law.” Herron v. Carson, 26 W. Va. 62 . This is reiterated in exactly the same terms in State v Mines, 38 W. Va. 125 . In the opinion in the latter case, Judge Brannon said: . “Where the later statute makes full and complete provision touching the subject common to both, and it is evident that the legislature intended to review the legislation on that subject, and that the later act should be deemed a full and complete provision on the subject, the former statute is at an end.” In United States v. Claflin, 97 U. S. 546 , the rule was declared in the following terms: “Whenever a new statute covers the whole subject matter of an old one, and adds offences, varying the procedure, the latter operates by way of substitution and not cumulatively. The former is therefore impliedly repealed.” That case related to the construction of a criminal statute, but the rule is applicable to all statutes. In Eckloff v. District of Co *333 lumbia, 135 U. S. 240 , and in District of Columbia v. Hutton, 143 U. S. 18 , it was applied to an act of Congress, relating to the powers and duties of the commissioners of the District of Columbia, with reference to the appointment and maintenance of the police force. In the. former case Mr. Justice Brewer said: “The court below placed its decision on what we conceive to be the true significance of the Act of 18Y8. As said by that court, it is-to bo regarded as an Organic Act, intended to dispose of the whole question of a government for this District. It-is, as it were, a constitution of the Distinct. It is declared by its title to be an act to provide “a permanent form of government for the District.” The word “permanent,” is suggestive. It implies that prior systems had been temporary and provisional. As permanent it is complete in itself. It is the system of government. The powers which are conferred are organic powers. We look to the act-itself for their extent and limitations. It is not one Act in a series of legislation, and to be made to fit into the provisions of the prior legislation, but is a single complete Act, the outcome of previous experiments, and the final judgment of Congress as to the system of govérnment which should obtain. It is the constitution of the District, and its grants of power are to be taken as new and independent grants, expressing in themselves both their extent and limitations. Such was the view taken by the court below; and such we believe is the true view to betaken of the statute.” In the latter case, involving the same Act of Congress, this was reiterated and approved. The decisions of our own Court, in which the rule was-enforced, involved statutes relating to civil, not criminal, matters. See in addition to the authorities cited for the rule, Morris v. Crocker, 13 How. (U. S.) 429; Michell v. Brown, 1 Ell. & Ell. 267; Ex parte Baker, 2 Hurl & H. 219; Parry v. Croydon Gas Co., 15 C. B. (N. S.) 568. It is a rule by which to test a statute as to the legislative-intention, and just as clearly applicable, when the question is whether new and additional matter has been incorporated, as when it is whether old matter has been eliminated. Under it, the elimination of old matter is effected by implication. The incorporation of new matter cuts out all in *334 consistent old matter, without express declaration of intention to do so. Before the passage of chapter 40 of the acts of 1891, the charter of Point Pleasant, chapter' 201, Acts of the General Assembly of 1860, limited the powers of the council, respecting licenses, to municipal licenses. Chapter 40 of the acts of 1891, omitted that section of the .act of 1860, and substituted for it the language of sections 35 .and 36 of the act of 1891. The new language, not the old, therefore, determines the legislative intention, respecting that matter. The old section is thus impliedly repealed under this rule, if inconsistent with the new, as well as expressly repealed by the first clause of section 40 of the act of 1891.
To what has been said, concerning the object and purpose of chapter 40 o.f the acts of 1891, as disclosed by its title, it is to be added that the same intention is further evidenced by the provisions of the act, covering almost every conceivable subject of municipal power. Section one constitutes certain inhabitants of the State a body politic and corporate under the name of the town of Point Pleasant; section 2 defines the territorial limits of the town; section 3 divides the territory into wards; section 4 gives power to change the boundaries of the wards and increase them in number, to not more than five; section 5 names the officers, prescribes their qualifications and provides for their election; section 6 provides for ‘ the holding of elections, prescribes the qualifications of voters and trial of election contests; section 7 fixes the terms of office; section 8 prescribes the oath of office; section 9 requires the council to prescribe the powers and define the duties of its appointed officers, except in so far as they are prescribed and defined in the act, and to fix the compensation of such officers; section 10 relates to the general powers of the council; section 11 gives authority to remove elected and appointed officers and fill vacancies; section 12 prescribes rules for meetings and procedure of the council; section 13 prescribes the duties of the clerk and how the records shall be kept: section 14 lays down a rule for keeping the minutes and taking the yeas and nays; section 15 prescribes the duties of the mayor and fixes his salary; section 16 relates to proceedings and enforcement of ordinances; section 17 pro *335 vides for the enforcement of judgments; section 18 prescribes duties of the jailer; section 19 provides for the keeping of a docket by the mayor; section 20 provides for appeals in certain classes of cases from judgments in town cases; section 21 prescribes the mode of trial of such appeals; section 22 prescribes the judgment in certain classes of cases and provides for enforcement thereof; section 23 provides for appeals in other cases; section 24 relates to the duties of the marshall; section 25 provides for arrests and trial for violation of ordinances; section 26 prescribes how settlements shall be made by the marshall and fixes his compensation; section 27 gives remedies against the marshall; section 28 provides for deputy marshalls and makes the marshall chief of police; section 29 prescribes the duties of the assessor; section 30 relates to finances and expenditures; section 31 imposes a penalty for non-payment of taxes within the time specified; section 32 gives a lien on real estate for taxes; section 33 relates to the tax duplicate; section 34 prescribes the duties of the treasurer; section 35 relates to the granting of the licenses; section 36 relates to the duration of licenses; section 37 provides for condemnation proceedings for public purposes; section 38 relates to payments; section 39 relates to the status of the then officers and ordinances of the town; section 40 repeals all acts or parts of acts inconsistent with said act, but preserves to the town the benefit of all previous acts, provisions of general law and amendments previously made by the circuit court of Mason county, except so far as the same may be inconsistent with the powers conferred by said act; and section 41 requires the council to provide voting places in the several wards for holding an election on a certain day. A clause in section 10 relating to the general powers of the council provides that it shall have power to prevent “the desecration of the Sabbath day, profane swearing, the illegal sales of intoxicating liquors, drinks, mixtures and preparations.” As this clause does not purport either to give or withhold power to grant or refuse licenses, but only to give power to prevent illegal sales of intoxicating liquors, drinks, mixtures and preparations, no consideration need be given it. It does not say how sales shall Joe legalized or who *336 shall legalize them, but only that the couneil may prevent illegal sales.
While chapter 40 of the acts of 1891 is thus' manifestly a complete act, covering the whole subject matter of the corporate powers of the town of Point Pleasant, constitu-tuting the organic law of the corporation, as said by the Supreme Court of the • United States, in reference to the Act of Congress, relating to the District of Columbia, both impliedly and expressly repealing all previous inconsistent legislation, whether general or special, it was not ordained in the passage of this act that no previously existing-powers, consistent with the powers conferred by it, should not be held or exercised by the town of Point Pleasant. It was the intention, disclosed by express declaration of the legislature, that powers conferred by such previous legislation, consistent with the powers conferred by chapter 40 of the acts of 1891, should thereafter be held and exercised by the town. In several instances, general statutes are expressly adopted by chapter'40. For instance, the mode of appealing from judgments of the mayor, except in cases specially provided for, shall be allowed as in similar cases before justices. Section 20 adopts the provisions of chapter 162 of the Code, relating to recognizance in criminal cases. Section 21 says the circuit court, on appeal from judgments of the mayor in the cases specially provided for, “ shall proceed to try the same in its orderj as appeals from justices of the peace are tried. ” Section 25 says the mar-shall and his sureties shall be liable to all the fines, penalties and forfeitures that a constable is liable to, for any dereliction of duty in office, to be recovered in the same manner, and in the same courts, that such fines, penalties and forfeitures are recovered against constables. Section 32 provides that, if any real estate within said town be returned delinquent for the non-payment of taxes due thereon, a copy of such delinquent list may be certified by the council to the auditor, and the same may be sold, for the town taxes and interest and commissions thereon, in the same manner, at the same time, and by the same officer, as real estate is sold for non-payment of state taxes. These instances will serve to illustrate what is meant by saying this complete and comprehensive charter of the town of Point *337 Pleasant has adopted and made parts of it many of the general laws of the State. In addition to adoptions by express reference and declaration, as in the instances just specified, there is a general adoption in the peculiar clause found in the repealing section, which declares “that this act shall not be construed * * to take away any of the powers conferred upon said town, or upon the mayor or council or any of the officers thereof, conferred by general law, or by any amendment of its charter heretofore made by the circuit court of Mason county, except so far as the same may be inconsistent with the powers hereby conferred.” Viewed in the light of the subject matter and purpose of the act, as disclosed by its title and its provisions, the reasonable and fair construction of this clause is, not that it is a proviso, saving clause or exception, but an adoption of all such special and general provisions of preexisting law, conferring powers upon said corporation as are not inconsistent with the provisions of the act. It is not in the form of a proviso. It is introduced by the conjunction “but” and not the word “provided.” Its language is not limited, and does not relate, to the saving or validation of acts done under previous laws, but to the powers which the corporation should have authority to exercise in the future. Even if it had been preceded by the word “provided” or its equivalent, its office and purpose would be determined, not by its form, but by the intention of the legislature as gathered from the whole instrument. In Stanley v. Colt, 72 U. S. 119 , (18 Law Ed. 502,) Mr. Justice Nelson said: “It is true that the word ‘proviso’ is an appropriate one to constitute a common law addition in a deed or will, but this is not the fixed and invariable meaning attached to it by the law in these instruments. On the contrary, it gives way to the intent of the parties as gathered from an examination of the whole instrument, and has frequently been thus explained and applied as expressing simply a covenant or limitation in trust.” And the Court declared the doctrine in the syllabus of the case in these terms: “The word ‘proviso’ has frequently been applied as expressing simply a covenant or limitation in trust.” In Georgia Railroad Co. & Banking Co. v. Smith, 128 U. S. 174 , (32 Law Ed. 377), the same Court. *338 declared as follows: “The general purpose of a proviso is to except the clause covered by it from provisions of the statute or to qualify a portion of the statute. But it is often used as a conjunction to an independent paragraph.” In Chesapeake & Potomac Telephone Co. v. Manning, 186 U. S. 238 , (48 Law Ed. 1144), the same doctrine was declared and applied. The distinction and principle are not unknown to this Court. In Ches. & O. Ry. Co. v. Pack, 6 W. Va. 397, 403 , Judge Hoeeman said: “The proviso might, without very serious change of grammatical arrangement, be regarded, not as a part of the section re-enacted, but as an independent section following it.” In view of the clear purpose of the legislature, as shown by the'title and provisions of the statute under consideration, I have no hesitancy in saying that the object •and intent of the clause found in section 40 was, not to continue in force previously existing laws, conferring, or purporting to confer, powers upon the council of the town, not inconsistent with the provisions of the act, but to make them operative and effective as new laws, by virtue of that act, and not by virtue of the statutes in which they originally appeared. I do not regard this conclusion as conflicting with the following rale laid down in State v. Mines, 38 W. Va. 125 : “When a statute is amended and re-enacted with the words, ‘so as to read as follows,’ or words of like effect, those parts of the reenactment embraced in the former law are not considered as repealed and re-enacted, but as law ^11 along continuously from their original enactment.” In respect to the clause now under consideration, that rule does not apply. It does not repeat the words of the general and special laws adopted, and it is not an act merely amending a part of the statute or statutes. Let it be observed, too, that the rule quoted does not say, as matter of fact and strict law, that the old law is not declared or affirmed anew, born again, but only that it is “considered” as having been in force uninterruptedly, so as to make it work out certain results as to past transactions. Here, we look at it from a different point of view, its future effect, in respect to which there is no necessity for the interposition, of a fiction, and fictions can only be resorted to when neces *339 sary to work out justice and equity, never to defeat it. This statute is broader in its scope, than the one on which the rule is predicated, covering a whole subject. If we say the language of the clause, “This act shall not be construed * * to take away any of the powers conferred upon said town, or upon the mayor or council or any of the officers thereof, conferred by general law, or by any amendment of its charter heretofore made by the circuit court of Mason county, except so far as the same may be inconsistent with the powers hereby conferred,” means no more than that these ppwers shall be saved and continued in force by exception, we render it wholly useless and meaningless, for section 40 would then stand precisely as if the legislature had stopped after saying “All acts or parts of acts inconsistent with this act are hereby repealed.” Under no rule, known to the courts, does a statute, to which there is appended such a repealing clause, do away with any pre-existing statute or law not inconsistent with it. Without a word added, the town would still have had the benefit of all powers conferred by any previous law, whether to borrow money, contract debts, or do anything else, not inconsistent with the powers specifically conferred by the act. We are bound, therefore, to say that the legislature intended something more than a mere continuation of statutes and amendments on their old footings. What could it- have intended different from that, other than a re-declaration, re-affirmance and adoption of previous laws, as new provisions or parts of the new act? Nothing else has been suggested or can be conceived, and we are bound to say that the legislature intended this clause to have some effect. “In the construction of a statute, every part of it must be viewed in connection with the whole, so as to make its parts harmonious, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of the statute to be without meaning.” Bank v. County Court, 36 W. Va. 341 . Lewis’ Suth. Stat. Cons., section 491, p. 919. “It is presumed, as well on the ground of good faith as on the ground that-the legislature would not do a vain thing, that it intends its acts and every part of them to be valid and capable of being carried into effect.” Id. section 497, p. 926. “ The intention *340 of the law-makers, if plainly expressed, must have the force of law, though it may be in the form of a proviso; the intention expressed is paramount to the form.” Id. section 382, p. 674.
Besides general laws, expressly adopted, others may be found to have been adopted by necessary implication. For illustration, section 32, relating to sale of real estate for non-payment of municipal taxes, may be taken. It does not require, in express terms, the recordation of the delinquent list in the office of the clerk of the county court. That it shall be so recorded has been judicially declared by this Court, on the theory that the duty to do so is necessarily implied in the requirement that the land shall be sold in the same manner, at the same time, and by the same officer, that real estate is sold for the non-payment of state taxes. Hogan v. Piggott, 60 W. Va. 541 , ( 56 S. E. 189 .)
If the legislature in passing chapter 40 of the acts of 1891, had said nothing concerning the powers of the council of the town of Point Pleasant, respecting the granting or refusal of licenses, it would probably be clear that, by necessary implication, or by the terms of chapter 47 of the Code, the extent of its powers relating to that subject, and the mode of exercising them, would be prescribed and governed by that chapter. But it was not silent. It acted. What it intended, therefore, must be ascertained from the terms it used, respecting the powers of the council as' to such licenses. One question is, whether or not it legislated on- that subject, and that depends upon the meaning of the terms it used. If it did legislate on that subject, its intention must likewise be determined from the language it has used in the sections relating thereto. From the very nature and object of the act, assuming to prescribe and define the powers and duties of the authorities of the town, all of its powers and duties, so that it should be necessary only to look into the provisions of that act, including provisions expressly and impliedly adopted from other statutes, for such powers and duties, the absence of any express provision at all on so important a subject as this would be strange and unexpected. It would be contradictory of express terms and the general *341 purport of the statute. It would be in the nature of a legislative freak, if we are at liberty to assume that there could, be such a thing. In view of the presumption so raised that the legislature did intend to define the powers of the corporation, respecting this matter, as well as every other one that could arise, it must be assumed that the language of sections 35 and 36 of the act was intended to express the legislative will on that subject and to constitute, together with such general provisions of law as are made applicable to the subject, by necessary implication, all the provisions of the charter of the town, relating to it. Why should the legislature, in direct contradiction of its expressed purpose, and its manifest effort, to define the powers of said corporation, all of them, fail to act on this one ? Is the Court at liberty to assume such stupidity on the part of the law-making body of the state? The legislature spoke on the subject, and we are bound to say, not only that it intended something by the language it used, but also that it intended its language to be the sole and.exclusive rule and declaration of its intention, as to the powers of the council, respecting licenses.
That the power to grant or refuse licenses was a subject of deliberation by the legislature, at the time of the passage of the act in question, is disclosed not only by the terms of the act but also by the journals of both branches of the legislature. As originally introduced, the bill contained 43 sections, of which sections 35, 36, 37 and 38 related to the matter of licenses. Sections 35 and. 36 read as follows: “Thecoun-cil shall also have power to grant, refuse or revoke licenses, to owners or keepers of hacks, carts or wagons, drays, and of every other description of wheeled carriage kept or used for hire in said town; to levy and collect a tax thereon, and to subject the same to such regulation as the interest or convenience of the inhabitants of said town in the opinion of the council, shall require; to grant, refuse and revoke licenses to theatrical exhibitions, public shows, musical performances, and all performances by which admission is obtained by the payment of monay or other rewards; and for keeping dogs within the town, and for anything else for which a state license is now or may hereafter be required; and to levy and collect taxes on the same; and to *342 grant, revoke and refuse any license to sell or offer for sale, and to prohibit the sale or offering for sale, of any brandy, whiskey, rum, gin, wine, porter, ale, or beer, or any other spirituous, vinous or malt liquors, or any intoxicating liquor, drink or mixture or preparation whatever, within said town or within one mile of the corporate limits thereof, and shall require a tax thereon of not less than one hundred dollars nor more than two hundred dollars, and to enforce the authority hereby granted by reasonable fines and penalties.”
“36. When any such license is granted by the council to sell or offer for sale, brandy, whiskey, rum, gin, wine, porter, ale or beer, or any other spirituous, vinous, or malt liquors, or any intoxicating liquor, drink or mixture, it shall take from the person so licensed a bond, with approved security, in a penalty of not less than-three thousand dollars, payable to the State of West Virginia, and conditioned as prescribed in section twenty-two, of chapter thirty-two, of the Code of West Virginia. The council may provide for the punishment of such person for the violation of any of the conditions of said bond, and suits may be brought and maintained against such person and his sureties on such bond, for the same objects, by the same person, in the same manner and with like effect, as upon a bond taken under the section mentioned; and also, for any fines and costs that may be imposed by the mayor for any offense against the town, under its ordinance, involving a breach of the condition of such bond, and the council may revoke any such license -for a breach of any of the conditions of such bond, or for other good cause shown, but the person holding the license must first have reasonable notice of the time and place of hearing and adjudicating in the matter, as well as the cause alleged, and he shall be entitled to be heard, in person or by counsel, in opposition to said revocation.” The bill passed the Senate, after amendment by inserting, before the words “and to grant, revoke and refuse any license to sell” the words “shall have the sole power.” It was so passed by a vote of nineteen yeas and no nays.’ After it went to the house, it was referred to the Judiciary Committee, which reported it back with the following recommendation:
*343 “Strike out all section 35 from and after the word ‘same,’ in line eighteen of engrossed bill, and insert the following:
‘But no license to sell, o;ffer or expose for sale any brandy, whiskey, rum, gin, porter, ale or beer, or any other spirituous, vinous or malt liquor, or any intoxicating liquor, drink, mixture or preparation thereof, within said town or within one mile of the corporate limits thereof, shall be authorized or granted except as provided in chapter 32 of the Code of West Virginia; and where any such license is granted as aforesaid, with the assent of the corporate authorities of said town, the same may be revoked b3r said town authorities, for good cause shown after reasonable notice or the intention to do so to the person holding-said license. And the corporate authorities of said town may subscribe by ordinance the amount of town taxes to be paid upon every such license, but not less in any case than one hundred dollars. The corporate authorities shall also have power to require and take from every person to whom any such license is granted, a bond with good security, in the penalty of not less than one thousand dollars, conditioned as prescribed in section 18 of chapter 32 of the Code, and the town shall have the same remedy on said bond as is prescribed in said section.’
Strike out all of section 38.
And recommended that the bill pass as amended.'5 When the bill was taken up on second reading, with the amendments proposed by the committee, the amendments proposed were, by unanimous consent, withdrawn. Then sections 35 and 38 of the bill were wholly stricken out, leaving 41 sections instead of 43, and making sections 37 and 38 of the original bill 35 and 36 of it as so amended. It was then passed to its third reading and afterwards passed in that form, and the amendment was agreed to bjr the senate.
As so passed, it contains sections 35, 36 and 40 as they now appear in chapter 40 of the acts of 1891. These sections have been quoted. Sections 35 and 36 relate specifically to the matter of licenses. They do not adopt in express terms, by reference or otherwise, any general law on the subject, applicable to county courts or municipal corporations. They do not say or imply, by any terms used, that the licenses thereby referred to are municipal licenses. *344 They do not say or inapty that the provisions of chapter 47 of the Code, relating to municipal licenses only, shall govern the council in respect to the matter of licenses. Bearing in mind the fact that the legislature was, according to its own definition of its action, making a complete law for the government of the town of Point Pleasant and fully defining its powers, and that its method of adopting the provisions of other statutes was, for the most part, the use of express terms of reference for that purpose, we should be able to find something in these two sections, dealing with the question of license, showing an intention to adopt the provisions of section 33 of chapter 47 of the Code, before we can qualify, limit or cut down the import and meaning of the terms used in these two sections which include licenses of all kinds. There is an adoption, by reference, in section 36, of certain provisions of the general state law relating to state licenses, but none to the statute relating to mere municipal licenses. All this strongly argues the intention of the legislature, that the expression of its will, on the subject under consideration, should have effect according to the literal import of the terms used, and that only such provisions of anjr general statute relating to the matter of licenses, not expressly adopted as a part of the two sections, as should be necessary to the effectuation of the powers conferred, as indicated by the language used, should become, or be deemed, a part of those two sections.
Section 35 says that the council shall prescribe, by ordinance, the manner in which licenses of all kinds shall be applied for and granted. It does not say in express terms that the council shall have power to prescribe as aforesaid; but how could it prescribe without having the power to do so? The power to do what the legislature says the council may do or shall do is necessarily implied. It does not say either, in express terms, that the council may grant licenses of all kinds, or may grant licenses of any kind. But what would be the use or sense of requiring or authorizing a council to prescribe the manner of doing a thing which it has not the power to do? Is it to be assumed that the legislature intended that the council should prescribe the manner in which the county court or some other tribunal *345 should grant a license? That would be going out side of the object and purpose of the statute, which was not to prescribe and define the powers and duties of any county ■court, but to prescribe and define the powers and duties of the council. For whom, other than itself, could it prescribe the manner of doing a thing? Common sense, as well as the rule of law, says plainly, nobody. What would be the sense of requiring or authorizing it to prescribe the manner of applying for and granting licenses which it has not 'the power to grant? Can it be assumed that the legislature did the vain and idle thing of requiring the council to prescribe the manner of granting licenses without giving it power to do so? The decisions of this Court and all other courts forbid such an imputation upon the legislature. It would be equivalent to saying that body was engaged in mere child’s play, or was soo reckless and incompetent that the language used by it, in the great and solemn work of •ordaining lá;ws, does not express its intention, or does not mean anything, and that we must seek its intention in conjecture or surmise, or something other than the words it has used. That no such course can be taken by the Court consistently with law, must be admitted by all. Authorities already cited in this opinion put it beyond controversy.
“When the intention is clear, what is implied in a statute is as much a part of it as what is expressed.” 26 Am. & Eng. EncyLaw 624. “ When the legislature has power to enact a law and its intention is manifest, effect will be given to the intention rather than to a mere failure of its language to express or prescribe what was intended. ” Lewis’ Suth. Stat. Con., section 233, p. 438. “There could be no paying without previous receiving. The latter duty is explicitly declared. The prior one is as clearly to be inferred. Both would be alike implied in the absence of the provision as to paying over. What is implied in a statute, will, deed or contract is as much a part of it as what is expressed.” Mr. Justice Swayne in United States v. Babbitt, 95 U. S. 334 ; United States v. Babbitt, 66 U. S. 55 , citing Koning v. Bayard, 2 Paine 251 ; Haight v. Holley, 3 Wend. 258 ; Rodgers v. Kneeland, 10 Wend. 218 ; Fox v. Phelps, 20 Wend. 447 . “A thing within the intention of the makers *346 of the statute is as much within the statute as if it were within the letter-.” Stowel v. Zouch, 1 Plowd. 366; United States v. Freemam, 3 Plow. (U. S.) 565; United States v. Babbitt, 66 U. S. 55 . Did the legislature intend wha,t it said, if it said anything, and that it did say something nobody can deny; and, if it said anything, it said the council should have power to grant all licenses, or it intended by what it said to incorporate or adopt section 33 of chapter 47, or the old provision of chapter 201 of the acts of 1860. Now what word is to be found in the language used which purports to make any such adoption? There is absolutely none, and no such adoption can be made without cutting down the language used so as to make it mean less than the words, taken in their natural and ordinary signification, mean.
The only contention is that $ie broad terms “licenses of all kinds” may be restrained and limited by construction so as to apply to municipal licences only, and not to include state licenses. It is said we must read section 35 in connection with the provisions of chapter 47 of the Code. I have shown, I think, conclusively, that in construing this statute, we cannot go to chapter 47 for the law upon any subject which has been legislated upon in chapter 40 of the Acts of 1891, except in so far as the provisions of that chapter of the Code have been, expressly or by necessary implication, adopted by chapter 40 of the acts of 1891; for the reason that said chapter 40 is a complete, comprehensive and exclusive embodiment of the law defining all the powers of the authorities of the town of Point Pleasant. But if this were not so, the contention for the qualification or limitation of the meaning of the term “licenses of all kinds” cannot be sustained under. the authorities. Under chapter 47 town councils have power to grant municipal licenses only for all things for which state licenses may be granted by county courts. To adopt the construction contended for, therefore, we would have to say the terms “licenses of all kinds” mean municipal licenses for all things for which a municipal license may be granted. That is contrary to the terms used in section 35 of this act. It means less than the terms used in this ¿ct import, for, in one sense, there are two kinds of licenses, state licenses and *347 municipal licenses, and this construction would cut down language, broad enough in its teínas to include both classes, so as to make it apply to only one of them. “All kinds”' means all classes as well as all the individuals of each class. Eo more comprehensive terms could have been used. The construction asked for would reduce their meaning to the narrowest possible limit. That this would do violence to the rules of • construction is plainly manifest. “A statute ought to be construed as a whole, and each section should be so construed, that, if possible, no clause, sentence or word should be superfluous, void or insignificant.” Jackson v. Kettle, 34 W. Va. 207 ; Baxter v. Wade, 39 W. Va. 281 ; Argand v. Quinn, 39 W. Va. 535 . Reference has already been made to Bank v. County Court, 36 W. Va. 341 , and other authorities, sajting it is not to be presumed that the legislature intended any part of a statute to be without meaning. Moreover, to adopt the construction, contended for here, would make section 35 of the charter act meaningless and ineffective for any purpose. If it was the intention that the powers of the council should be governed by the provisions of section 33 of chapter 47 of the Code, respecting licenses and ordinances, the requirement of ordinances relating to the manner of applying for and granting the same, by the act of 1891, was useless and subservient of of no purpose whatever. Section 33 of chapter 47 gives the power to grant municipal licenses to all corporations, governed by that chapter, and section 29 of said chapter authorizes the passage of ordinances for carrying into effect the power to grant licenses, together with all the other powers conferred upon such corporations. It says “to carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, bj this chapter or by any future act of the legislature of this state, the council shall have power to make and pass all needful orders, bylaws, ordinances, resolutions, rules and regulations, not contrary to the constitution and laws of this state.” If it was the intention of the legislature, that the council of the town of Point Pleasant should be governed by these pro-provisions, what possible necessity or reason could there have been for authorizing, or requiring, it to pass ordinances prescribing the manner of applying for and granting *348 ■licenses ? It only amounted to a repetition of what was, by chapter 47, if intended to be made a part of chapter 40 of ■the acts of 1891, already required and authorized. Thus, the Court, in its attempt to qualify or cut down the literal import of the words found in section 35, would find itself overthrowing another rule of construction to which reference has been made, and which says, in substance and effect, that we must presume the legislature had a purpose .and object in the selection of the terms it has used in the statute, and intended those terms to have some effect, — to accomplish some purpose. It would make them perform no office whatever.
It is further contended that the action of the legislature, respecting the provisions of the original bill, the amendment, made by the senate and the striking out of sections 35 and 36 thereof, discloses intention to withhold from the council the sole power to grant licenses, and not to make it a license court for purposes other than the granting or refusing of municipal licenses. These legislative transactions do not reflect any light upon the subject. They do not import any intention to change the general character of the •statute and make it a special and incomplete law to operate in connection with other existing laws. After all this had been done, the bill continued to be one, the apparent and declared purpose of which was the ordaining of a law, complete and comprehensive, covering the whole subject matter, and intended to be a substitute for all other laws inconsistent with it. The bill, if passed by the house, in the form in which that body received it, -would have given in •express terms, sole power to the council to grant licenses of all kinds. The judiciary committee of the house proposed to amend it so as to take away that power. That •amendment was withdrawn, and part of the language of the bill, importing an intention to vest such sole power in the ■council, was stricken out. But only a part of it was stricken ■out, and the balance of it allowed to stand. Had it all been stricken out, the action might have afforded ground for the presumption that it was intended that the town should have power to grant licenses under the general law, chapter •47 of the Code. But, inasmuch as it was not all stricken •out, we must determine what the remaining portion of it *349 means, and that can only be done by the application of well settled rules of construction! The remaining language-is not ambiguous. It is merely general. It gives power by implication rather than express words, but the implication is an absolutely necessary one, for, without it, the terms used would be meaningless and ineffective, as has been shown. While the house struck out two sections, leaving comprehensive terms relating to the subject matter thereof, it did not so change the title of the bill as to make-its object the amendment of certain sections of the old charter act and make it a partial, incomplete law. It did not, by reference or otherwise, incorporate anything as a. substitute for the matter stricken out, What reasons impelled the several members to vote for the bill in that form, or what actuated them in changing its form, the Court cannot inquire. What they or any of them said on the occasion is not admissible. 26 Am. & Eng. Ency. Law 638; U. S. v. Trans-Miss. Assn. 166 U. S. 318 ; Am. Net. T. Co. v. Worthington, 141 U. S. 473 . Nor can we assume, or allow it to be proved, that anything was put into, or taken, out of the bill, by fraud, trickery or imposition. Slack v. Jacob, 8 W. Va. 612 . We must take the language as it is- and determine what it means.
That the striking out of sections 35 and 36 of the original bill, containing the senate amepdment, is insufficient, in view of the character and purpose of the bill, and what was-left in it, relating to the granting of license, to show that the legislature did not intend what the remaining words-import, seems manifest from the disposition made of a similar-question by this Court in Coal & Coke Co. v. Tax Commis sioner, 59 W. Va. 605, 630, 631 , In that case, the words-“including chattels real,” found in the bill as it passed the house, were stricken out of one clause by the senate. This was relied upon, by counsel for the Coal Company, as-conclusive evidence that it was not intended to put chattels-real on the tax list at all, and certainly not those owned by corporations. In reply to that contention, this Court said, through Judge Brannon, “Why, then, did not the legislature strike out ‘ chattels real’ from section 61? Why did it not strike from section 80 clause (a) the words ‘including chattels real,’ thus charging individuals and firms *350 not incorporated with them? Why did it still later in the •consideration of the bill insert, in section 108 charging taxes, a clause reading: ‘ (pp) The value of all chattels real of every person, firm or incorporated company?’ This last most explicit language flatly says that corporations shall be taxed for chattels real.” It was held that chattels real, belonging to corporations, were taxable under the statute, notwithstanding a clause of a sec-lion said in explicit terms, after referring to clauses naming every other species of property, and omitting chattels real, that the property mentioned in them should constitute all the property on which any such corporation should be liable to pay taxes. The Court very properly, in that case, as in all others, gave force, and •effect to the plain, explicit and positives terms of the statute as it was finally passéd, notwithstanding the circumstance that some similar language had been stricken out of the bill in its progress through the legislature. If the language had been ambiguous, susceptible of two or more different meanings, or applications, without doing violence to its terms, the circumstance of the elimination of certain language, while the bill was pending, might be sufficient to determine which meaning or application was intended. That was not the condition of the language of the tax statute in the case just referred to, nor of the language in section 35 of chapter 40 of the acts of 1891, which we have under •consideration. It is plain and explicit and positive. The only criticism that can be made upon it is that it expresses the legislative intention in an awkward and unusual forrp, a matter of no consequence whatever, so long as the intention plainly appears, as it does. “The intention expressed is paramount to form” and “must have the force of law,” Lewis’ Suth. Stat. Cons., section 452; Ches. & Pot. Tel. Co. v. Manning, 186 U. S. 239 .
If the language used were ambiguous, so as to give room for construction or interpretation, by reference to extrinsic •circumstances or facts,' the same conclusion would result from a view and analysis of the language used in section 35, read in the light of the, clause in section 40, relating to the .amendments to the charter of the town by the circuit court ■of .Mason county. Among these amendments, was the one *351 made on the 9th day of Mayr, 1883, which has been quoted and purported to confer upon the council sole power to grant all licenses within the corporate limits of the town. The language of that clause is broad enough to include all amendments so made. It is presumed that the legislature has knowledge of the subject matter of its action. The spectacle of a legislature, passing laws concerning a subject or thing, about the facts of which it did not have knowledge, would be strange, if not absurd. It would be repugnant to common reason, just as much so as in the case of two men, making a contract, unless the contrary affirmatively appears. Therefore, the courts say that the words of a statute are to be interpreted in the light of the subject matter. Brewer v. Blougher , 14 Pet. (U. S.) 118, 196; United States v. Caldwell, 86 U. S. 114 ; Am. & Eng. Ency. Law 604. The charter of the town of Point Pleasant, at the time the legislature acted upon it, in passing chapter 40 of the acts of 1891, appeared to have been amended by the circuit court of Mason county, so as to confer this power. The act thus shows that the legislature knew the amendment had been made. It was not its province to determine whether any of those amendments were valid or not. That is not the business of legislatures. They have no power to determine such questions. They are judicial questions and cognizable only in a judicial forum. The legislature, therefore, did not, because it could not, assume or declare expressly, or otherwise, that the amendment in question was not a valid one; in other words, that this amendment is not included in the clause of section 40, because, in the opinion of the legislature, it was not an amendment. Courts cannot assume that a legislature has meddled with something that, in common parlance “is none of its business.” That must be shown, before it can be considered. ‘ ‘ The legislature cannot authoritatively declare what the law is or has been; that is a judicial function and pertains to the court.” Lewis’ Suth. Stat. Cons., section 358, p. 683; Ogden v. Blackledge, 5 Crunch, 212, (2 Law Ed. 216; South Ottowa v. Perkins, 97 U. S. 260 , (24 Law Ed. 154); In Re Hanley's Estate, 150 Utah 212 , ( 62 Am. St. Rep. 629 , 931); Ratcliffe v. Anderson, 31 Grat. 105. “ It is always competent to change an existing law by a declaratory statute, and, *352 where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would, in effect, sit as a court of review, to which parties might appeal when dissatisfied with the rulings of the courts.” Cooley’s Con. Lim. 11. It is not to be assumed, therefore, that the legislature, having no power to determine, whether the amendment made by the circuit court was valid or invalid, assumed that it was invalid, and, therefore, did not include it in its reference generally to the amendments made by the circuit court- The declaration that nothing in the act shall be construed to take away power conferred by any amendment, made by the circuit court, not inconsistent with this act, is the same in- meaning as if it had been that the council shall have the powers conferred by all the amendments, not inconsistent with this act, made by the circuit court. It reaches all the amendments, not merely one of them. Though negative in form, it is affirmative in meaning and effect. Can the words “any amendment” be limited to one amendment; if so, which one? The impossibility of applying them to any one in particular proves that they extend to all. That body knew, is presumed to have known, that there was attached to the charter of the town a paper purporting to be an. amendment, conferring just such power as the language contained in section 35 of the act necessarily implies. The existence of that ostensible, if not valid, amendment was a circumstance known to the legislature, when it used language in section 35 which purports, by necessary implication, to confer the very power which the amendment purported to give. This shows, by legislative terms, the opinion of the legislature that the town already had that power. Courts may take cognizance of facts known to the legislature, which tend to throw light upon the question of intent. This is settled beyond all question. Platt v. Union Pacific Ry. Co., 99 U. S. 48 ; *353 Church v. United States, 143 U. S. 457 ; Railway Co. v. United States, 91 U. S. 72 ; The Delaware, 161 U. S. 472 ; Amer. Net. & T. Co. v. Worthington, 141 U. S. 468 . They may consider all the surrounding circumstances and history of the times. See in addition to cases just cited, Simms v. Daniel, 49 W. Va. 354 ; C. & O. Ry. Co. v. Deepwater Ry. Co., 57 W. Va. 641 . Here we need not look beyond the language of the statute itself, to ascertain that the legislature knew amendments had been made by the circuit court to the charter of the town of Point Pleasant. It declared its knowledge of them in the act. One of them is disclosed by the record. It is not only a circumstance known to the legislature, but a part of the subject matter of the statute. This evidence of belief, on the part of the legislature, that the town had, by virtue of the amendment, sole power to grant licenses, accompanied by the declaration of a rule of action for the council, predicated on the assumption of such power and referable to no other conceivable hypothesis, makes the legislative intention to grant such power so plain that nothing can be urged against it, but mere conjecture and surmise.
Two of my associates fully concur with me in the view that section 35 of chapter 40 of the acts of 1891, read in the •light of section 40, confers, upon the town council, the power in question, and we reverse the judgment of the circuit court, predicated upon the theory of a want of such power in the council. I am prepared to go further and say that, if section 35 were not in the statute, the power claimed by the town of Point Pleasant, would be sustained by section 40 alone, of chapter 40 of the acts of 1891. It is plain, as has been pointed out, that the clause in that section relating to the amendments made by the circuit court of Mason county, is not a saving clause nor an exception. It is an independent provision intended to add to the preceding sections of the act. I have shown that, unless it is so regarded, it is a futile and vain expression, effecting no purpose and performing no function whatever, and we are not permitted, by the rules of law, to place such a construction upon it. The legislature treated and regarded the amendments made by the circuit court,' not some of them, but all of them, for it refers to all of them, as valid and conferring powers. The language used in the clause assumes that these *354 amendments conferred powers, for it says nothing- in the act shall be deemed to fake away the powers conferred by them. How could there be anything to take away, in respect to this amendment, if it conferred no power, or was not regarded as conferring power ? In saying power conferred by the amendment should not be taken away, the legislature, by necessary implication, said the amendment had conferred power. The language used by the legislature, I repeat, assumes that the amendment conferred power, whether it did or not, and deals with it as an amendment cenferring power. It calls it an amendment. If it conferred any power, it could have been none other than the very power in question. In assuming that it did confer such power and declaring that nothing in this act should be construed to take it away, the legislature clearly and positively expressed its will that the town council should have such power in the future, whether it had had it in the past or not. It is a question of intention, and when- the contention is apparent, it must be given effect without any regard to the form in which it is expressed. If the amendment was invalid, and not law, and not embodied in any act of the legislature -or Code, that circumstance is immaterial. The legislature had the power to incorporate it into the act and, upon its identification, wherever found, it became part of the act. In Delaplane v. Crenshaw, 15 Grat. 457, one question was whether a certain alleged custom or usage, relating to the inspection of flour, had been incorporated into the statute, concerning the same subject. The law provided for an inspection of flour,' which inspection consisted partly in boring small holes in the heads of the barrels and making a draft of flour from each hole, to be inspected. In early days, when the production of flour was not large, the draft flour thus taken out, amounted to but little, and it was the practice of the inspectors to keep it, as well as receive compensation in money for the inspection. Later, when the production of ffour became large, the draft flour was a matter of consequence. In the statement of the case, it is shown that at the time of the decision, the inspector had received, in draft flour, about 1500 barrels from one firm. In view of the importance of the matter, an action was brought to determine whether he was entitled to it. One of his conten *355 tions was the intention of the legislature, in revising the inspection statute and reducing the rate of compensation, to sanction this usage, by incorporating it'into the statute. It never had been law, nor had it ever been reduced to writing in any form. Judge Lee, ..in delivering the opinion of the Court, said: “But it is contended that if the custom cannot operate proprio vigore to vest the right claimed in the inspector, yet that it has been sufficiently recognized by statute and thus has received the legislative sanction. Certainly if if has been recognized either expressly or by necessary implication it would thereby receive vitality, and the right claimed could well be asserted, as conferred by the statute.” But, upon investigation, he found that the statute had not, by any terms used, or in any manner, recognized, .mentioned or referred to the custom. The language of the statute under consideration here is clearly within the reasoning of Judge Lee. The statute mentions the amendment. In March, 1815, Congress passed an act entitled “An act to vest more effectually in the State courts, and the District Courts of the United States, Jurisdiction” in the cases therein mentioned. It will be observed that the purpose of the act as indicated by its title, was to deal with a matter of jurisdiction in the state courts and the district courts of the United States. No reference is made in the title to the circuit courts of the United States,' and the jurisdiction intended to be conferred was not a jurisdiction which the circuit courts had under any other statute. Notwithstanding this, the fourth section of the act declared “ that the district court of the United States shall have cognizance, concurrent with the courts and magistrates of all states, and. the circuit courts of the United States, of all suits at common law, where the United States, or any officer thereof, under the authority of anj7 act of Congress, shall sue, although the debt, claim, or matter in dispute, shall not amount to $100.-00.” Chief Justice Marshall said: “ The jurisdiction of the district-courts, then, over suits .brought by the Postmaster-General for debts and balances due the general post-office, is unquestionable. Has the circuit court jurisdiction? The language of the act is, ‘that the district court shall have cognizance concurrent with the courts and magistrates of the several states, and the circuit courts of the United *356 States, of all suits,’ &c. What is the meaning and purport of the words ‘concurrent with’ the circuit courts of the United States? Are they entirely senseless? Are they to-be excluded from the clause in which the legislature has inserted them, or are they to be taken into view, and allowed the effect of which they are capable? The words are certainly not senseless. Theji-have a plain and obvious meaning. And it is, we think, a rule, that words which have a meaning are not to be entirely disregarded in construing a statute.. We cannot understand this clause as if these words were excluded from it. They, perhaps, manifest the opinion of the legislature, that 'the jurisdiction was in the circuit courts, but ought, we think, to be construed to give it, if it did not previously exist. Any other construction would destroy the effect of these words. The district court cannot take cognizance concurrent with the circuit courts, unless the circuit courts can take cognizance of the same suits. For one body to do a thing concurrent^ with another, is to act in conjunction with that other. The phrase may imply, that power was previously given to that other; but if, in fact, it had not been given, the words are capable, of imparting it. If they are susceptible of this construction, 'they ought to receive it, because they will otherwise be totally inoperative, or contradict the other parts of the sentence, which show plainly the intention, that the district court shall have cognizance of the subject, and shall take it to the same extent with the circuit courts. It has been said, and perhaps truly, that this section was not framed with the intention of vesting jurisdiction in the circuit courts. The title of the act, and the language of the sentence, are supposed to concur in sustaining this proposition. The title speaks only of state and district courts. But it is well settled, that the title cannot restrain the enacting clause. It is true that the language of the section indicates the opinion, that jurisdiction existed in the circuit courts, rather than an intention to give it; and a mistaken opinion of the legislature concerning the law, does not make law. But if this mistake is manifested in words competent to make the law in future, we know of no principle which can deny them this effect. The legislature may pass a declaratory act, though inoperative on the past, may act in future. This *357 law expresses the sense of the legislature.on the-existing law, as plainly as a declaratory act, and expresses it in terms capable of conferring the jurisdiction. We think, therefore, that 'in a case plainly within the judicial power of the federal courts, as prescribed in the constitution, and plainly within the general policy of the legislature, the words ought to receive this construction.” Postmaster General v. Early, 12 Wheat. 136 . In South Ottawa v. Perkins, 94 U. S. 260 , Mr. Justice Bradley said, in speaking of an act of the legislature of Illinois which referred to a previous unconstitutional actas being in force,. “The legislature could not thus in 1869, give validity to a void act as an Act passed in 1857, which was not constitutionally passed in that year; for that would bo an evasion of the Constitution. It could at most give it vitality as a new Act from the date of the Act of 1869. But this it does not profess to do; it only adopts its provisions for the purposes of the Act then passed.” Unlike the statute we are construing, the new statute, discussed by Mr. J ustice Bradley, simply referred to the provisions of the unconstitutional statute as having been “in force Feb. 18, 1857.” It did not purport by its terms to adopt that statute, nor to express legislative will as to its future status. If it had, it is plain from the language used by the J ustice that it would have been operative from the date of the passage of the act of 1869, therein incorporating it. The doctrine of Postmaster General v. Early was stated with approval by Mr. Justice Strong in United States v. Claflin, 97 U. S. 546 , 24 Law Ed. 1082-83. It is to be observed with reference to the statute construed in Postmaster Generala. Early, that it used no word stating in a formal manner, that the circuit courts shall have jurisdiction. It says the district courts shall have concurrent jurisdiction with the circuit courts, merely assuming that the circuit courts already had jurisdiction, and not saying that they should have. This is true of the statute we are considering, in so far as it relates to the amendments made by the circuit court; but while it does not say in so many words the amendment shall be law in the future, it makes the amendment a part of the statute. It incorporates it into the statute. Can we say the legislature had no purpose in doing that? The rules hereinbefore stated forbid this. Shall we *358 say the legislature thus adopted it to have effect in future, if the courts should determine that' it originally was valid and to have no effect if they should say it was originally invalid? This interpretation might do, if the clause in question were a mere proviso or saving clause, relating to past acts, done under the amendment, but I have shown, I think, conclusively, that it is not; but is, on the contrary, a new and independent clause, adding to what precedes it, and not merely limiting or qualifying it after the fashion of the proviso or exception. Let it be remembered that this conclusion would render the clause non-effective. If valid, it would remain so without the aid of this clause. If invalid, this clause, so construed, would still leave it invalid. How could we reconcile this view of conditional adoption with the doctrine laid down in Postmaster General v. Early? It would be absolutely impossible to do so. Let it be remembered, too, that'the doctrine of that case is not mere obiter, but matter’ of express and solemn decision and application of the principle. How could we reconcile it with the expression of the opinion of Judge Lee in Delaplane v. Crenshaw, an obiter dictum, it is true, but one pregnant with reason and emanating from one of the ablest jurists of his time? How shall we wipe out this doctrine in the face of its recognition and approval by the Supreme Court of the United States in comparatively recent cases? Though the authorities cited would be amply sufficient to justify the position I have taken, they are by no means the only authorities upon that question. State v. Corker. 67 N. J. L. 596, (60 L. R. A. 564,)'propounds the doctrine that if a document of any kind be incorporated into a statute by any reference sufficient to identify it, it becomes as much a part of it and as effective as a part of it, — as if it were copied into it with positive and affirmative declarations of legislative will. In that case, the question was whether an unconstitutional statute had been validated by a statute subsequently passed. The court said: “ For the purposes of this case it may be conceded that the unconstitutional provisions referred to were inseparable from the legislative intent, so that in each case the entire statute was unconstitutional. The question raised, therefore, is fairly presented. The argument is that an unconstitutional statute is a nullity. Granting this, *359 it does not follow that it may not be imported into valid ‘legislation by appropriate reference. It is entirely within the legislative power to give effect to documents without their full recital. Statutes valididating agreements of lease, merger, or consolidation of railroad corporations are usually cast in that form. * * * The matter is one purely of identiiication. Surely nothing can be more definite than a reference to a document that has been regularly promulgated as a public statute.” The act in question in that case was an act concerning public roads and lights and creating boards for the control and management of the same. In providing for the election of road commissioners, the statute undertook to limit the right of franchise to the freeholders of the respective townships. The Supreme Court said that, as the qualification of voters was fixed by the constitution, and the right of franchise extended to all persons who could bring themselves within the constitutional qualifications, and the right to vote was not limited to freeholders, the statute was for that reason unconstitutional and void. In 1896, an act was passed, not incorporating the whole of that statute, nor saying that, from and after the taking effect of the act of 1896, the unconstitutional Act of March, 1893, should, as amended by the act of 1896, thereafter have effect, but merely amending the objectionable sections in .the act of 1893. In State v. Corker, it was held that, although the act of 1893 may have been wholly void because of the unconstitutionality of the provisions of certain sections, the elimination of these objections by the act of 1896 validated the whole of the act of 1893, although the other portions of that act, were not re-enacted, incorporated into the new statute, nor expressly adopted by reference. The court simply held that the intention of the legislature to put the act into future force was plainly manifested by the striking from the void statute, of that which had made it void, although it did not use express language, or the legislative terms usually employed for that purpose. In other words, the act of 1896 did not expressly declare that the whole of the act of 1893 should thereafter have, the force of law, or should be deemed to have been in effect since the first of March, 1893, and continue to be law, but simply amended sections of it, and put them in force, and the court said this suffi *360 ciently manifested intention to put the whole act into effect. How much stronger is the present case? Section 40 of chapter 40 of the acts 1891 assumes that the amendments made by the circuit court of Mason county vested power in the town council and says nothing in this act shall be construed to take away those powers. Add to this reasonable and common sense view the consideration that, if the purpose of this clause was not the adoption of these amendments, it could not have any purpose and could not be in any sense or degree effective, and thus apply the well settled and universal rule of construction. To this add the further consideration that the purpose of the act was the provision of a new and complete system of government for the town of Point Pleasant, and the method of executing that purpose was not the building, upon former laws as a substructure, of a mere superstructure, but the laying of new foundations, and the building from the ground up of a new and complete structure, using only such of the old materials as were deemed suitable, so that the work consisted of construction and erection, not mere alteration or remodeling, and, in all substantial respects, of the process of inclusion, not exclusion, nor of the double process of inclusion and exclusion; and the position I have taken, so well sustained by the principles adverted to, becomes immensely strengthened by another well settled rule of interpretation.
In my opinion, it is immaterial that the amendment, admittedly void for the purpose of this part of the opinion, was in the form of a court decree and not of a statute. Void deeds and contracts, often validated by statute, are never in statutory form. The custom in question in Delaplane v. Crenshaw, cited, was not even reduced to writing, nor was there any memorandum of the supposed circuit court jurisdiction, assumed in the statute, under, consideration in P. M. Gen. v. Early, cited. It was a mere figment of the legislative mind. In Chappell v. United States, 81 Fed. Rep. 764, an Act of Congress, declaring the state laws should govern the practice in the federal courts sitting in the several states, was under consideration, and the fact that the laws so adopted were not federal laws, but laws of a different jurisdiction, was regarded as immaterial. A stat *361 ute of New York, adopting certain provisions of an unofficial book, known as the Revised Statutes, and not found in the official Revised Statutes, was sustained, and the adopted matter held to be a part of it. Will of Kavanaagh, 125 N. Y. 418 . Nor has section 30 of Art. VI of the Constitution anything to do with the case. This is not a case of revival of a repealed statute, or amendment of an existing one, by reference to its title or otherwise. State v. Corker, cited; State v. Cain, 8 W. Va. 720 .
In view of the conclusion to' which a majority of the members of the court have come, sustaining the Harden license on the provisions of the act of 1891, I see no necessity for any discussion of the validity of the amendment made by the circuit court in 1883. The validity of no act clone under that amendment between 1883 and 1891 is in question. The act of 1891 is clearly a substitute for all the laws, relating to the powers of the council of the town' of Point Pleasant, that were in force and effect at the date of the passage of that act. To that act, and such other laws, general and special, as have been adopted by it, we must look in ascertaining what powers the town has, and not elsewhere. But, in view of the argument and opinion expressed by Judge Miller in a dissenting opinion, I feel constrained to say something on the subject, lest my silence should be taken, by the profession, as a concurrence in the views expressed by him, or as indicating a lack, on my part, of any good reason for not concurring. I do not want to be regarded as having been silent from mere obstinacy. Nor do I wish to feel the necessity in any way of explaining my attitude, on any future occasion, requiring action on this matter, should one arise.
The constitutionality of chapter 47 of the Code, passed by the legislature in obedience to, and by way of execution of, section 39 of Article VI of the Constitution, requiring that body to provide, by general laws, for the incorporation of cities, towns or villages, containing a population of less than two thousand, or for amending the charters of such cities, towns and villages, has been declared by this Court. In Re Town of Union Mines, 39 W. Va. 179 , the Court held as follows: “Chapter 47 of the Code, in relation to the incorporation of cities, towns, and villages, in *362 so far as it confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the legislative department of the state government, is constitutional and valid.” The same declaration has been made in exactly the same language in Elder v. The Incorporators of Central City, 40 W. Va. 222 . In both of these cases, this Court declined appeltate jurisdiction over proceedings in the circuit courts for the incorporation of cities, towns and villages, under the provision of chapter 4Y of the Code, on the theory and express holding that the action of the circuit court was only quasi judicial, or that, if it was not quasi judicial, it was an administrative function, the conference of which upon circuit courts was expressly authorized by the Constitution. In the former case, Judge Dent said: “In discharging these functions, the circuit 'court does not act under the judicial branch of the government and is not subject to its supervision, except by mandamus or prohihitibn in a proper case, but acts as a part of the legislative branch of government under the express authority of the constitution and is subject to its supervision and control only, however, by impeachment or amendment or repeal of the law. Hence its action in discharging these legislative judicial functions can not be reviewed by this Court by a writ of error or other ordinary appellate writ, notwithstanding their judicial character.” The second point of the syllabus in that case declared the same doctrine in these words: “ The circuit court, in the discharge of such functions, acts as a subordinate branch or tribunal of the legislative, not of the judicial department, and is not subject to-the appellate jurisdiction of the Supreme Court of Appeals of this State.” This part of the syllabus is not repeated in Elder v. Central City, cited, nor is the language of the opinion of the Court to exactly the same effect. Judge Holt says, by way of conclusion, “But the majority of the Court being of opinion that the matter is only administrative,, and that this Court has no jurisdiction in a matter merely quasi judicial, the. writ of error must be dismissed as improvidently awarded.” Notwithstanding the declination of appellate jurisdiction in these two cases, they seem to decide whether or not the statute, purporting to confer jurisdiction upon the circuit court, was constitutional. Under *363 that statute, the circuit court had, in each case, exercised jurisdiction. If the statute did not confer jurisdiction, because unconstitutional, in so far as it authorized, or attempted to authorize, action in the matter of incorporation, by the-circuit courts, then the circuit courts had acted without jurisdiction, and their want of jurisdiction itself and alone may-have conferred appellate jurisdiction on the Supreme Court. Freer v. Davis, 51 W. Va. 1 ; Clark v. County Court, 55 W. Va. 278 . In this last case, Judge Miller said: “Where-the subject matter in controversy is sufficient, and the bar of the statute has not intervened, the right of a party to a void judgment or decree, to have the same reviewed and reversed, if prejudiced thereby, is unquestioned.” However this may be, even though these declarations, tested by strict law, be mere dicta, I think the reasoning for the conciusion is well, clearly and correctly, but tersely stated by Judge; Holt in Elder v. Central City. He says: “The statute itself erects the local body of citizens into a municipal corporation upon their bringing themselves within its provisions and upon complying with its terms, all of which are-specific and fixed therein (see Thomp. Corp., section 110 et seq.)', and whether the facts thus required exist in the particular case the circuit court, after due notice to all concerned and an' opportunity to be heard against the application, ascertains and determines. This is, at least, an administrative or quasi judicial function, which the circuit-court may be authorized to perform. See latter clause of section twelve, article eight, Const,” In saying the statute itself erects the local body of citizens into a municipal corporation, upon bringing themselves within its provisions, and upon complying with its terms, Judge Holt not only adhered to the language and spirit of the statute, but stated what is characteristic of many grants, rights and powers,, made by the legislature, and conferred by the common law. His meaning is that the grant of the right to be a corporation, and to have corporate powers, is complete and final-so far as the legislature is concerned, there remaining-nothing to be done by it. It is a grant of a right to such people as are able to .bring themselves within the conditions-annexed to it, and as shall actually do so. It is not a grant without conditions. It is not a self-executing statute,. *364 it is true, but it is a grant to the people, to. become effective upon their bringing themselves within its terms and conditions, without any further action on the part of the legislature. How broad is the application of this principle when we come to think about it? The laws of descent and distribution, the providing for the alienation of property by deed and will, the laws providing for the incorporation of private joint stock companies, about the constitutionality of which there can be no possible question, involve this same principle. No person can inherit or take, under the statutes of descent and distribution, until he comes within the conditions annexed to the grant of the right of inheritance. Can we sajr that these statutes are self-executing, and have .already vested rights to property in persons who are not yet born ? . As to these persons, as well as to those who are now in being, the rule declared by law exists. The only difference is, that those who are now in being are within the -conditions of the rule, while those who are not yet born have not come within its conditions. As to the former, the right has become concrete, absolute and unconditional; as' to the /latter, it exists conditionally and in the abstract. It is a law, however, in each case, prescribed by the power of the state. It is a rule of action, actually in operation, vesting rights in persons now living, and determining in advance the rights of those who shall hereafter come into being. Take the statute providing for the incorporation of private corporations. Almost any sort of a corporation can be organized under the general laws, but they do not exist until after ■organization and, in the organization of them, the legislature does not participate. It has fully and completely performed its function, by prescribing the rule and laying down the conditions, to be complied with by those who desire to avail themselves of the right which the 'legislature has given to be a corporation. They must, in order to vest themselves with corporate powers, enter into an agreement, the form and substance of which is prescribed by the statute; they must sign that agreement and acknowledge it; they must deliver it to the secretary of state, together with a certain amount of money and he then issues the certificate of incorporation. Nobody pretends that the secretary of state •organizes the corporation or grants the power to be a cor *365 poration, or exercises any legislative power whatever. His issuance of the certificate is but the performance of one-of' the conditions upon which the legislature has said, in advance, the right to be a corporation shall be dependent. Now that statute says any number of persons not less than five-may form a corporation in that way. , Such persons as see-fit to organize corporations only avail themselves, by organizing it, of a right granted to any other equal number of persons to do the same thing. As the organization of a private corporation is always a matter of agreement and there is nothing to settle between the parties who organize it,, that they cannot settle among themselves, there was no necessity for the interposition of any third party to settle differences among them. As it must be a matter of agreement, there can be no differences to settle. It is a matter of agreement or no corporation. This is not true in the case of the incorporation of municipal corporations. If those desiring the formation of such a corporation had to wait until -eveiy man in the territory, proposed to be incorporated, should agree to it, very few corporations of that kind would ever be formed. That was apparent to the legis- • lature. Hence, the necessity for a provision to meet this exigency, differing from the provision made in the case of private corporations. But this does not betoken or argue-that the principle underlying the grant of the right to be a municipal corporation differs from the principle on which the grant of the right to be a private corporation operates.. It is simply a difference in the mode prescribed for taking the benefit of the grant. It is simply the requirement of compliance with an additional condition, annexed to the-grant, because, from the very nature of the thing granted, it was necessary to prescribe a further condition, in order to make the grant effective and fruitful. Now, what does-the statute say? Simply that the inhabitants of any territory, in any county, not less than one-quarter- of one square mile-in extent, and numbering not less than one hundred persons,, majq by pursuing a certain course, convert themselves into a body politic and corporate, for the benefit of the public, and, incidentally, themselves and such other persons as-may see fit to reside in the same territory along with them, whether born or yet to be born, so long as the cor *366 poration shall continue to exist. The various steps by which this is accomplished, the enumeration of the conditions to be complied with, to enable these people to obtain the benefit of the grant, hardly need to be fully set forth. They are required to cause a census to be taken, showing the-population of the territory, a survey and map to be made, notice to be given of the intention to make application to the circuit court for the certificate of incorporation, .and an election to be held, to determine whether it is the wish of a majority of the qualified voters of the territory, to take advantage of the right of local self-government by means of municipal corporation. Whether these things have been done in a given case, are mere matters of fact, but it was apparent to the legislature that there might be disagreement as to the state of facts, and attempts on the part of the minority to override the will of the majority, by means of fraud or trickery. Therefore, it was necessary to authorize some person or tribuual, in addition to issuing a certificate, to settle any such disagreements, and to ascertain, in an authoritative manner, what the facts are, whether the population of the territory is sufficient, whether a fair expression of the will of the voters has been taken, and what their will is. Is not this investigation and determination such in character as is peculiar to courts, rather than to legislatures or executive officers ? Is it strange, then, that the legislature should have chosen, for this purpose that tribunal which the experience of all ages and all people has fixed and developed as the most appropriate, and best qualified one for determining such questions, and performing such functions, namely, a court of general jurisdiction? Now, as the matters to be determined by the court are not those of rights between man and man, such as property rights and relative rights of personal status, the determination of them may not, and probably is not, judicial in the full sense of the term, but as has been said by Judge Holt, the function is in the nature of a judicial one, a quasi judicial function and jurisdiction. However that may be, the thing ultimately determined by the Court is not whether the people of that territory have a right to be a corporation. That, the legislature has said to all the people of the state, who are within the conditions annexed. The thing determined by the Court *367 is whether the people desiring to form such a corporation, have put themselves within the conditions which the legislature has said shall be complied-with, before the grant shall become effective, just as it determines whether a man is within the conditions which the law says make him an heir to property. That, in awarding the certificate, the court performs a mere ministerial function, not in any sense legislative, after having incidentally determined, judicially or quad judicially, that the conditions have been complied with, just as the secretary of state issues a certificate of incorporation to a joint stock company, after having ascertained that the applicants for that certificate have performed the conditions, which the legislature has said they should perform, as a means of availing themselves of the right granted, seems so clear to me- that I do not see how any person could doubt it.
In view of the peculiar nature of a municipal corporation, and t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8176086. Public record. Not legal advice.