City of Winona v. Whipple

Berry, J. By the provisions of section 2, sub-chapter 4, of the amended charter of the city of Winona, (Sp. Laws 1867, c. (20,) the city council is authorized to grant licenses to venders of intoxicating liquor, and to fix the price of the same at from $10 to $100. Though not so expressly [65] enacted, it is to be inferred that the money to be paid for licenses is to be paid into the city treasury, and to be the property of the city. By Sp. Laws 1875, c. 13, § 1, it is provided “that section 2 of chapter 1 of said amended charter be amended so that the proviso at the end of the first subdivision shall read as follows: Provided, the city council shall have the exclusive right to license persons vending * * * intoxicating liquors within the limits of said city, and persons so licensed shall not be required to obtain a license from the board of county commissioners,” etc. Section 2 of the same chapter provides that “three-fourths of the money received from the licenses so granted shall be paid to the treasurer of the city of Winona, and one-fourth to the treasurer of the county of Winona.” Section 2 of chapter l.of the amended charter contains no subdivisions or provisos, and the amendment attempted by Sp. Laws 1875, c. 13, is in no way germane to that section. Section 2 of chapter 4 of such charter contains subdivisions, and a proviso at the end of the first subdivision, and to that subdivision the amendment is entirely appropriate, and to no other part of the charter. There can be no reasonable doubt that, by some inadvertence, “chapter 1” is used for “chapter 4” in the act of 1875, and, to carry out the manifest intention of the legislature, that act is to be read by substituting “chapter 4” for “chapter 1.” It was entirely competent for the legislature to amend the charter of the city of Winona, as it has done by the act of 1875, which was completely prospective in its scope and operation. The power of the city to license, and collect license charges, is a delegated police power, and therefore completely within the control of the legislature. Section 2 of the act of 1875 is somewhat obscure. It may mean that the entire charge of a license is to be paid to the city treasurer, and one-fourth of it paid by him to the county treasurer, or it may mean that the applicant for the license shall pay three-fourths of the charge to the city L.-usurer, [66] and the remaining one-fourth to the county treasurer. But on the whole, and mainly in view of the fact that the whole subject of licensing appears to be committed to the city, authorities, we are of opinion that the former is the better construction. The consequence is, that the city treasurer receives the entire license charge, as city treasurer, but one-fourth of it for the use and benefit of the county. Section 5 of chapter 4 of the city charter enacts that all funds in the city treasury shall be under the control of the city council, and shall be drawn out upon the order of the mayor and recorder. This is, by implication, and in effect, to prohibit funds to be drawn from the city treasury except upon the order of the mayor and recorder. But, as respects the license moneys in question, this provision of the charter is controlled by the subsequently enacted requirement of the act of 1875, that one-fourth of the license money shall be paid to the county treasurer. By this requirement it is made the absolute duty of the city treasurer to pay over the one-fourth which he has received for the use and benefit of the county to the county treasurer, without waiting for directions from the city authorities. Having arrived at these conclusions, it is unnecessary for us to consider the other matters presented in the briefs. Order affirmed.