DISSENTING OPINION. The question is whether the ordinance was authorized by section 18, and paragraph (b) of section 22 of the act. Section 18 empowers municipalities and counties to make and enforce rules and regulations "for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety." And paragraph (b) of section 22 gives them the power to designate territory surrounding churches and schools in which wines and beer "shall not be sold or consumed." *Page 599
The ground for the adoption of the ordinance involved was that the territory is a residential section, and the public health, morals, and safety would thereby be promoted. In other words, that the public health, morals, and safety would be promoted because it is a residential section.
There is no authority in the statute, either expressed or implied, to prohibit the sale of beer and wines in any territory because such territory is residential. The only authority to absolutely prohibit their sale is contained in the latter part of paragraph (b) of section 22, and that is in territory "surrounding churches and schools." There are no churches and schools involved here — it is a residential section alone.
The ordinance makes no attempt to regulate — it is simply a prohibition ordinance. The power to zone is a power to regulate, not prohibit, and that is true of the power to suppress. Ex parte O'Leary, 65 Miss. 80, 3 So. 144, 7 Am. St. Rep. 640; Comfort v. Kosciusko, 88 Miss. 611, 41 So. 268, 9 Ann. Cas. 178; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 725, 131 Am. St. Rep. 518; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Desporte v. Biloxi, 136 Miss. 542, 100 So. 387; Dart v. Gulfport, 147 Miss. 534, 113 So. 441, 445.
In the Crittenden case the statute involved gave the power to municipalities to "regulate, suppress and license" pool rooms. Crittenden was operating a licensed pool room. The municipality passed an ordinance prohibiting their operation. The court held the ordinance void upon the ground that the power to regulate and suppress did not carry with it the power to prohibit. In the Comfort case the court held that the power to suppress hog-pens in municipalities did not carry with it the power to prohibit by a general ordinance. In the Fitzhugh case the court held void an ordinance of the city of Jackson prohibiting business houses in residential sections of the municipality. It was an ordinance, not *Page 600 to regulate, but to prohibit. Regulation is permissible; City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604; while prohibition is without the police power. In the Dart case the ordinance prohibited filling stations in certain territory in Gulfport. The statute, chapter 195, Laws of 1924, under which the ordinance was sought to be justified, empowered the municipality to regulate and restrict the erection of filling stations. The court held that the power to regulate and restrict "cannot be distorted into meaning the power to prohibit."
According to the controlling opinion, the board of supervisors and municipal authorities of a county together could zone the whole county into a residential section, and prohibit the sale of beer and wines therein, and thereby repeal chapter 171 of the Laws of 1934, without an election, as therein provided. The majority opinion is a good temperance lecture, and might be good legislation, but it ought not to be declared the law now — a harmful precedent for the future is the trouble with it.
Griffith, J., joins in this dissent.