ligible statute, capable of enforcement with-cast their ballots for or against the granting out the proviso. It was earnestly contended of liquor licenses, and provided that no lion behalf of the petitioner that the whole of cense thereafter granted in said city should section 4 should be declared void because it be valid if a majority of the ballots cast at was evident that the General Assembly in- any such city election were against the tended that a vote for or against the granting granting of such licenses, and further proof licenses should not be taken in any town hibited the granting of such licenses in that or city unless upon the initiative of qualified event by the license commissioners of Provelectors by petition, and that, if the machin-idence. Sections 4 and 5 of said chapter 87 ery provided failed to work by reason of its provided for local option in the town of uncertainty, then the right and duty of local option must necessarily cease; that, if the court should find the words of the proviso relating to petitioners void for uncertainty, it should then leave the section to read as follows: "Sec. 4. The electors of the several cities and towns who are qualified to vote in the election of all general officers, shall, at each election of general officers, cast their ballots for or against the granting of licenses for the sale of intoxicating liquors pursuant to this chapter: Provided, that no vote shall be taken on this question in any city or town." The petitioner strenuously urged that this and this only would be a true interpretation of the legislative intent; and cited Commonwealth v. Potts, 79 Pa. 164, Philadelphia v. Barker, 160 Pa. 123, 28 Atl. 644, General Assembly v. Gratz, 139 Pa. 497, 20 Atl. 1041, Connolly v. Union, etc., Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, and numerous other cases, to the general proposition of law that, where the proviso to a section of an act is void for unconstitutionality or for other reasons, nevertheless, though not enforceable, such invalid proviso or portion cannot be disregarded in giving the interpretation of the section.

Pawtucket, and enacted that licenses might be granted by the town council if the ballots cast were in favor of granting the same, and that no licenses should be granted in said town if a majority of the ballots so cast were against the granting of such licenses. Section 9 of said chapter 87 provided that no license for the sale of intoxicating liquor should be granted by any town council if at any regular meeting such town should vote not to grant any such, the vote thereon to be by ballot upon the request of any five qualified electors. Chapter 326, p. 1, Pub. Laws, passed June 1, 1882, amended section 9 of said chapter 87 by providing that no license should be granted in any town if at the annual town meeting in April such town should vote not to grant such license, and providing that the town clerk upon request in writing of ten qualified electors should insert a proposition providing for the taking of such vote in the warrant calling such meeting. Chapter 558, p. 27, Pub. Laws, passed March 30, 1886, amended said chapter 87 of the Public Statutes of 1882 by extending the method of casting and counting ballots for or against the granting of licenses in the city of Pawtucket and re-enacted the We do not for an instant dispute the gen- provisions of said chapter 87 permitting eral principle of these cases. On the con- such licenses if a majority of such ballots trary, we have fully considered not only the were in favor thereof, and prohibiting the proviso, but also the entire section and the granting of such licenses in Pawtucket if a whole chapter in the endeavor to arrive at majority of said ballots were against the the true legislative intent. The chapter in granting thereof. At the general election question is entitled, "Chapter 102," "Of the April, 1886, a prohibitory amendment was Suppression of Intemperance." The words adopted by the people of this state, article show in a general way what is the scope and 5 of amendments to the Constitution. At the purpose of the chapter, and its various sec- May session, 1886, the General Assembly tions place restrictions upon the manufac- passed chapter 596, p. 2, Pub. Laws, as a genture and sale of intoxicating liquors by eral act for the enforcement of the promeans of a license system with numerous hibitory amendment repealing chapter 87 of and minute provisions for the administra- the Public Statutes and several acts in tion of such system and for the enforcement amendment thereof and in addition thereto. of penalties for its violation. In order to At the May session of the General Assembly ascertain the intention of the Legislature in 1889, the amendment article 8 annulling the the enactment of section 4, c. 102, Laws 1896, prohibitory amendment article 5 was voted it will be instructive to review the history for submission to the people at a special elecof liquor legislation in this state preceding tion to be held on the third Thursday in and succeeding the period of constitutional June, 1889, under and by the provisions of prohibition (from the year 1886 to the year chapter 808, p. 1, of the Public Laws passed 1889) in so far as local option provisions are May 30, 1889, at which special election arto be found therein. Chapter 87, Pub. St. ticle 5 of amendments was annulled by the 1882, in section 2 thereof, vested in town adoption of article 8 of amendments by vote councils and boards of aldermen power to of the people. A special session of the Gengrant liquor licenses within their respective eral Assembly called and holden in the towns or cities. Section 3 of said chapter month of July, 1889, followed the repeal of 87 provided that the electors of the city of the prohibitory amendment. An act to reg

cial session August 1, 1889, contains for the first time a clause identical with section 4, c. 102, Gen. Laws 1896. Pub. Laws July Sess. 1889, p. 136, c. 816, § 4. It thus appears that the right of "local option" on the part of all the towns and cities of the state has been for many years recognized and preserved by the General Assembly as an important part of the system adopted for the "suppression of intemperance."

option" as it had existed and been exercised under the former statutes; and the enactment of the proviso, in a form which is void for uncertainty, does not express the true intent and meaning of the Legislature, because it does not mean anything at all. We have already, in the rescripts above quoted, sufficiently considered and answered in the affirmative the question whether the remainder of section 4, after striking out the proviso forms in itself a clear, complete, and intelligible statute, and have shown how the same should be administered.

It is to be noted that prior to June 1, 1882, local option might be exercised in towns at the request of only five qualified electors, and that after June 1, 1882 (chapter 326, p. We believe that we have found and de1, Pub. Laws of 1882), and down to the adop-clared what was the true intent of the Gention of the prohibitory amendment, local op- eral Assembly in this matter and have decid⚫ tion might be exercised in towns at the reed this cause, so as to preserve that true inquest in writing of only 10 qualified electors; tent in accordance with principles of such and it is also to be noted that the peremp- universal acceptance in the courts, that the tory requirements as to voting at each an- citation of authority is unnecessary. All of nual election for or against the granting of li- the cases cited on the briefs, so far as they censes in Providence and Pawtucket appearing apply at all, support the same general docin Pub. St. 1882, c. 87, §§ 3, 4, were enacted trine that we have followed above as to the by the General Assembly as to Pawtucket, by duty of the court to ascertain the "true inPub. Laws, p. 116, c. 858, passed April 19, tent" of the General Assembly in construing 1881, and as to Providence by Pub. Laws, P. statutes. None of the cases cited is so nearly 149, c. 889, § 3, passed April 29, 1881. Each similar to the case at bar as to give us direct and all of these provisions were simple, clear, aid in construing the language here in quesand easily understood and administered. Aft- tion. And there is no case cited where a proer the annulment of the prohibitory amend- viso, which is void merely because it is meanment, when the General Assembly by Pub. ingless, has been held to have the effect of Laws 1889, p. 133, c. 816, passed August 1, rendering an entire section void, where the re1889, re-established a license system, it still mainder of the section is capable of a clear showed its intention to preserve the local construction and of enforcement. The cases option features of the former statutes by the cited, where a proviso, or a distinct section, general language of section 4; and it also has been held to have the effect of nullifyintended, beyond question, to make this law ing a whole section or a whole act, are cases applicable throughout the state under one where the intention of the legislation was general rule, so that there should no longer perfectly clear and intelligible, and where be one rule in the towns and another rule in such intention so clearly expressed made the act unconstitutional, and therefore void; and where the court, having ascertained what was the clear intention, have found that the act without the obnoxious portions would not express the true intent. We are therefore of the opinion that a review of the authorities cited on the briefs would serve no use

the cities of Providence and Pawtucket. It

doubtless supposed that this intention had been fully carried out in both particulars, and that the section as passed did furnish a method by which a vote should be taken only at the instance of a certain number of qualified electors expressed in a definite manner. We cannot suppose that the General Assembly knew that the proviso was so vague and indefinite as to be void for uncertainty, and that it knowingly passed such a proviso intentionally for the purpose of annulling the earlier general words of section 4, and so as to make them inoperative. Nor can we suppose that, as urged by the petitioner, it would not have passed this statute without this proviso. If it had understood that this proviso would render the whole section inoperative, we are convinced that it would have attempted to so change it as to make it accomplish the real intent. The consideration of the entire history of this legislation, as above set forth, as well as the frame of section 4 itself, convinces us beyond a doubt that the real, primary, and true intent was to continue and preserve the right of "local

ful purpose, but would unnecessarily encumber the opinion.

The power of a chancery court to punish by imprisonment for contempt for failure to pay as directed by its decree is not imprisonment for debt, but rests on the power of the court to vindicate its authority and to punish for defiance thereof.

3. CONTEMPT (§ 25*)-ORDERS FOR PAYMENT OF | ed to this court. The respondents have movMONEY-ENFORCEMENT. ed to dismiss the appeal on the ground that no appeal lies in such case, and, saving their rights under that motion, contend that they are not in contempt of the decree aforesaid. The motion to dismiss the appeal must be denied. The distinction between criminal contempts and those which are civil in their nature is well settled; and it is well settled, also, that an appeal will lie in the latter class of cases. Bessette v. W. B. Conkey Co., 194

[Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 75-78; Dec. Dig. § 25.*]

4. CONTEMPT (§ 25*)-ORDERS FOR PAYMENT OF MONEY-ENFORCEMENT.

A court of chancery may punish by imprisonment for contempt for failure to pay as directed by its decree, though execution might

have issued.

[Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 75-78; Dec. Dig. § 25.*] 5. CONTEMPT (§ 66*) — ORDERS ITY-FINAL DECREE."

· APPEALABIL

A decree denying and dismissing a petition that defendant trustees be adjudged in contempt for not paying to complainant a specified sum in satisfaction of a decree previously entered determines the right of complainant, and is a "final decree," within Const. Amend. art. 12, § 1 (Laws 1903, p. 2, c. 1089), granting to the Supreme Court appellate jurisdiction on all questions of law and equity.

U. S. 324, 24 Sup. Ct. .665, 48 L. Ed. 997. Thus, in Romeyn v. Caplis, 17 Mich. 449, 454, 455, it is said of an order adjudging a respondent in contempt for the violation of an injunction: "It has been contended before us that the order in this case was not one from which an appeal could be taken, since the appellee did not claim that an actual loss or injury had been produced to the party by the misconduct alleged, and did not ask for any sum to indemnify him. I think that this position cannot be sustained. The order complained of was final, and not merely a step in the course of proceeding contemplating further action by the court in relation to the same matter; and it belonged to that class of proceedings which Where a decree requires trustees to pay to are provided to secure obedience to the necesa specified person dividends and income from sary processes of courts in civil cases. the trust estate collected by the trustees, they * cannot justify a nonpayment by showing that no part thereof is available for such payment; and where they have devoted the same to other purposes they must reimburse the fund from their individual estates.

[Ed. Note.-For other cases, see Contempt, Cent. Dig. § 224; Dec. Dig. § 66.*

For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]

6. CONTEMPT (§ 24*)-Decree OF COURT-VIO

LATION.

[Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 72, 73; Dec. Dig. § 24.*] 7. APPEAL AND Error (§ 1207*)-DISPOSITION

OF CAUSE ON APPEAL.

A decree entered by the superior court as directed by the Supreme Court is in effect the decree of the Supreme Court.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4696; Dec. Dig. § 1207.*]

Appeal from Superior Court, Providence and Bristol Counties; William H. Sweetland, Presiding Justice.

Suit by Edward P. Jastram against Amelia B. McAuslan and another. From a decree

*

* The right of appeal in similar cases has long been recognized and sanctioned elsewhere, and the necessity therefor will not be denied." See, also, City of Newport v. Newport Light Co., 92 Ky. 445, 17 S. W. 435, affirmed in Nienaber et al. v. Tarvin, 104 Ky. 149, 157, 46 S. W. 513; State v.

Leftwich, 41 Minn. 42, 42 N. W. 598; Ballston Spa Bank v. Marine Bank of Milwaukee, 18 Wis. 515; People v. Simonson, 9 Mich. 492; Hundhausen v. U. S. Marine

Fire Ins. Co. et al., 5 Heisk. (Tenn.) 702; In re Day, 34 Wis. 638; In re Milburn, 59 Wis. 24, 17 N. W. 965; Baldwin v. Miles, 58 Conn. 496, 20 Atl. 618; State v. Horner, 16 Mo. App. 191-195 et seq.

That a decree for the payment of money may be enforced in chancery proceedings for dismissing the petition, complainant appeals. contempt has long been settled. Thus, in Re

Reversed and remanded.

Edwards & Angell (Albert Gerald, of counsel), for appellant. Tillinghast & Tillinghast and Bassett & Raymond (Russell W. Richmond, of counsel), for respondents.

Meggett, 105 Wis. 291, 81 N. W. 419, it is said in a case where a mortgagor after foreclosure had collected rents in violation of, an injunction and was ordered to repay them: "The court having exercised its jurisdiction and its discretion upon the facts so preBLODGETT, J. From a decree, entered in sented, and having ordered immediate paythe superior court, denying and dismissing ment of the money, had it not power to eithe complainant's petition that the respon- ther punish nonpayment or compel payment dent trustees be adjudged in contempt for by commitment for contempt? Such power not paying to the complainant the sum of has always been deemed inherent in courts $11,732.80, together with interest at the rate of equity, as essential to the enforcement of of 6 per cent. on the sum of $3,302.90, from their decisions. Indeed, it was anciently March 13, 1907, to the date of satisfaction of their only weapon for enforcing their comthe decree heretofore entered in this cause mands." And the power thus exercised is on April 1, 1908, the complainant has appeal-held not to be imprisonment for debt, but is

of them are adjudged to be in contempt, and that they may purge themselves of that contempt by the payment of the amount nam. ed in the decree aforesaid, with interest thereon from the date of the decree, within

thus defined (page 298 of 105 Wis., page 422 The appeal is accordingly sustained, the of 81 N. W.): "It is the exercise of the con- decree of the superior court dismissing the tempt power inherent in courts of equity to petition is reversed, and the cause is remandre-establish a status quo wrongfully disturbed to the superior court, with direction to ed. The punishment inflicted, even in civil enter a decree that the respondents and each contempts, where indemnity to another party is the dominant purpose, nevertheless rests upon the power of the court to vindicate its own authority, and to punish for defiance thereof, but to adjust that punishment so as to protect or enforce private rights." See, 60 days, together with the costs of this apalso, Richardson v. Jones, 3 Gill & J. (Md.) | plication. 163, 185, 22 Am. Dec. 293 et seq (1831); Lester v. People, 150 Ill. 420-425, 23 N. E. 387, 37 N. E. 1004, 41 Am. St. Rep. 375; Bristol v. Pearson, 109 N. C. 718, 13 S. E. 925. And this may be done although execution might also have issued. Hall et al. v. Dana, 2 Aik. 381; Brockway v. Copp, 2 Paige, Ch. 578.

For this purpose the decree of the superior court, denying and dismissing the petition, may well be held to be a final decree, inasmuch as it determines the right of the petitioner in the premises, and the broad grant of "final revisory and appellate jurisdiction upon all questions of law and equity," granted to this court by section 1 of article 12 of Amendments to the Constitution (Laws 1903, p. 2, c. 1089), may well be invoked in such a

case.

The respondents urged in the court below, and still maintain that contention in this court, that under the language of the decree of April 1, 1908, they were only required to pay from the trust funds in their hands the amount aforesaid, and the superior court adopted this construction and dismissed the petition. Here there was error. The amount so required to be paid is specifically declared to be dividends and income from the trust estate which had heretofore been received by the respondents as trustees, and to which the complainant is entitled. There is no limitation of language here to a payment out of the trust estate only; nor, indeed, should such a limitation have been in the decree.

LEDERER REALTY CORP. v. HOPKINS. (Supreme Court of Rhode Island. Dec. 28, 1908.)

1. STATUTES (§ 205*) — CONSTRUCTION

GEN

ERAL RULES. The intention of the whole act will control interpretation of the parts.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 282; Dec. Dig. § 205.*] 2. STATUTES (§ 158*)-REPEAL-IMPLIED RE

PEAL.

Repeals by implication are not favored; it being the duty of the court to so construe the acts, if possible, that both shall be operative.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.*] 3. MUNICIPAL CORPORATIONS (§ 601*)-BUILDING REGULATIONS.

Pub. Laws 1878, p. 116, c. 688, § 7, providing that alterations in buildings in the city of Providence should be subject to the regulations shall be raised or built upon in such manner that. of the law, and that "no building * were such building wholly built or constructed after the passage of this act, it would be in viorepealed by section 34 of chapter 688 (page 150), lation of any provision hereof," is not impliedly as amended by Pub. Laws 1894, p. 29, c. 1339, $ 6, permitting the alteration of any wooden. building, subject to the approval of the building increased, because the two acts may be so coninspector, provided its area or height is not strued that both may be operative, and thus accomplish the legislative intent and policy to increase the strictness of such regulations. Corporations, Dec. Dig. § 601.*] [Ed. Note.-For other cases, see Municipal

Appeal from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

The respondents are found to have collected, as trustees, income of the trust estate bePetition for mandamus by the Lederer longing to the complainant, and this, in contemplation of law, they should pay him on Realty Corporation against Spencer B. Hopdemand; but the duty to pay the complain-kins, inspector of buildings. From a judgant dividends and income of the estate which ment dismissing the petition, the petitioner they have collected is in no wise to be prej-appeals. Affirmed. udiced by the fact that the respondents may have devoted the complainant's property to other purposes. If they have done so, they must reimburse him from their individual estates, and cannot be heard to claim that they have none of the trust income now available therefor.

It is proper to observe that the decree of April 1, 1908, was framed by this court, and that the superior court was directed to enter it as thus framed. In effect, therefore, the decree in question is the decree of this court.

The following is the opinion of Stearns, J., of the lower court:

"This is a petition for a writ of mandamus, by which the question is raised as to the legal right of the petitioner to make certain proposed changes, etc., in the exterior and interior of a certain wooden building situated on the corner of Clemence and Weybosset streets in the First, or close, district, of the city of Providence. The building now has three stories in the front and two stories in the rear. The plan of the new building

calls for a three-story wooden building, both in front and in rear, thereby increasing the rear of the building by one story, the height of the new building, however, not to exceed the height of the present building. To make the proposed changes, it is necessary to tear down practically the entire building above the first story, and to build two new stories of wood on the present first story. The proposed building, when completed, would be less dangerous as a fire risk than the building as it now stands. The witnesses differ as to the method of measuring the cubic contents of the present building and as to the cubic contents of the part of the building which is affected by the proposed change.

"Several questions are raised in this case, but the first question, which calls for a construction of certain sections of the building laws of the city of Providence, is decisive of the case. The building law is found in chapter 688, p. 116, Pub. Laws 1878, amended by chapter 1339, p. 26, Pub. Laws 1894. Section 7 of chapter 688 is as follows: 'Sec. 7. Any alteration in or addition to any building already erected, or hereafter to be built, except necessary repairs not affecting the construction of the external or party walls, chimneys or stairways, shall to the extent of such work, be subject to the regulations of this act. No building already erected, or hereafter built, shall be raised or built upon in such manner that were such building wholly built or constructed after the passage of this act, it would be in violation of any provision hereof.' Section 34 of chapter 688, as amended by chapter 1339, § 6, is as follows: 'Sec.

part of the city most closely built, by restraining the use of combustible material in buildings. The policy of the Legislature, as seen in the various changes of the law, appears to be to increase the strictness of such regulations, and not to relax the strictness of the first act. As stated in Lewis' Sutherland on Statutory Construction, p. 370: "The intention of the whole act will control interpretation of the parts.' And on pages 465 and 466 the same author says: 'Repeals by implication are not favored. This means that it is the duty of the court to so construe the acts, if possible, that both shall be operative.'

"Applying these principles to the acts in question and bearing in mind the purpose of the law, it seems to the court that the acts may be and should be construed in a manner whereby both acts may be operative. If this view is correct, section 7 of the act is still in force, and the petitioner has no right under the law to make the desired changes. "The petition for writ of mandamus is denied."

Thomas A. Carroll and Walter P. Suesman, for appellant. Albert A. Baker, Henry C. Cram, and Elmer S. Chace, for respondent.

PER CURIAM. We find no error in the

decision of the superior court denying the prayer of the petitioner for a writ of manda

mus.

The appeal of the petitioner from the judgment of said superior court is hereby dismissed, and said judgment affirmed, and the case is remanded to the superior court for further proceedings.

(109 Md. 84)

MEUSHAW v. STATE. (Court of Appeals of Maryland. Dec. 2, 1908.) 1. LICENSES (§ 6*) - MUNICIPAL CORPORATIONS-POWER-REGULATION OF CITY MAR

KET-TAX."

34. Any wooden building in the First district may be altered or repaired, subject to the approval of the inspector of buildings, provided its area or height is not increased; except whenever an old building shall be torn down or burned to the extent exceeding onehalf of such building (such half to be measured in cubic feet), the rebuilding thereof shall be termed the erection of a new building. No wooden building shall be removed The new charter of the city of Baltimore from without to within the First district.'"to license, tax, and regulate all businesses, (section 6), authorizing the mayor and council The petitioner admits that, if said section 7 trades, avocations or professions," conferred on is still in force, the proposed building would the city the power to impose a charge on combe a violation of the building law and that mission merchants for the privilege of selling in the city market; such charge being a tax for he has no case; but the petitioner claims revenue, and not a license or regulation tax. that section 34, as amended, by implication repeals section 7, and bases his claim on said section 34, asserting that neither the area nor height of the old building is increased in the new building. Without passing upon this point, the court is of the opinion that section 7 of chapter 688 is not repealed by said section 34, and that consequently the petitioner has no legal right to make the proposed changes, and the inspector of buildings properly refused to issue a permit to the petitioner. The intent of the law in question apparently is to reduce the fire risk in the First district, which is the

[Ed. Note. For other cases, see Licenses, Dec. Dig. § 6.*

For other definitions, see Words and Phrases, vol. 5, pp. 4133-4141; vol. 8, pp. 6867-6886, 7706, 7813.]

2. LICENSES (§ 7*)-POWER-MUNICIPAL CORPORATIONS-REGULATION OF CITY MarketREASONABLENESS.

A tax of $200 per year imposed by a municipal corporation for revenue purposes on commission merchants using the city market in had expended large sums of money was not unthe erection and maintenance of which the city reasonable.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 15; Dec. Dig. § 7.*]