Wertheimer v. Citizens Bank Building

Smith, J., (after stating the facts). At the time of the execution of the lease herein sued on, the law in regard to the sale of intoxicating liquors was that intoxicating liquors could not be lawfully sold unless both the county and the township, or ward, in which it was desired to sell liquors had voted “For License” at the preceding general (biennial election. Subsequent to the execution of this contract, an act was passed by the General Assembly of this State and approved February 17, 1913, Act 59, page 180, Acts 1913, commonly known as the Going Act, bv which it was provided that it should be unlawful for any court, town or city council, or any officer thereof, to issue a license or permit, or any other authority to sell alcoholic or other intoxicating liquors unless a majority of the adult- white inhabitants living within the incorporated limits of any incorporated town or city shall have signed a petition to the county court .asking that license for the sale of intoxicating liquors be -issued for that town or city. Intoxicating liquors- could not, therefore, be sold in the -city of Pine Bluff until the Going Act had been -complied with, and the order of the court ascertaining that this act had been complied with was not made until the 6th day -of April, 1914. Consequently, it was unlawful to sell liquors in said city during the year 1914 prior to the 6t'h day of April of that year. Until the ■Going Act had been complied with liquor could not be lawfully sold in said city, and its sale was prohibited. Appellant could not have conducted the business for which it leased appellee’s building without violating the law, and each .and every sale of intoxicating liquors which it might have made prior to April 6, in that year, would have 'constituted a violation of the law and subjected it and its employees and servants to the fines and penalties prescribed by the statute. . The condition, therefore, had arisen against which appellant had contracted. It having become unlawful to sell liquor, appellant had the right to exercise the option of cancelling the lease. The judgment of the court below is, therefore, reversed 'and the cause will he remanded with directions to overnle the demurrer to the answer.