dissenting.
1. It is true that the constitution and laws of Georgia open the entire state to the free exercise of religions opinion and worship therein, so long as such worship does not embrace or encourage licentiousness or immorality ; and Jew or Gentile, Christian or Pagan, are alike entitled to equal protection under our liberal and wise toleration of perfect freedom'of religious thought, and equality of protection extended to religious worship. Nor do I suppose that it entered into the brain either of the counsel who advised, or the town authorities of Stone Mountain who enacted, the ordinance in question, that any preference was thereby given to Christians over other worshippers. It so happens that at Stone Mountain, as in most of Georgia villages, the only churches are Christian, and the only worshipping societies are believers in Christ as the Son of God. If there be a place of worship or any society of worshippers according to any other faith within the limits of Stone Mountain, the record does not disclose it, nor have I ever heard of such place of worship or society of worshippers therein. If such had been the case, doubtless the ordinance would have extended to them, as it should, equal protection *201against the danger of riot or interruption from grog-sellers and grog-drinlters whilst the mind should be composed for the worship of the common Creator of all.- Therefore, I do not think the ordinance void because it does not- name other as well as Christian worshippers.
2. The charter of Stone Mountain gives to the town authorities power to grant or to withhold license to retail spirituous liquors. The power to grant, covers the terms on which license is granted, except in so far as the terms are prescribed and restricted in the legislative grant of the power. Therefore, the restriction that the retailer should not sell during rqligious meetings, whether stated or protracted, whether white or colored, is within the grant to license, that restriction not being forbidden by any words in the grant to license or in any other part of the charter.
A greater power includes the less over the same subject-matter ; therefore the power to withhold license altogether includes the power to withhold unless it be accepted on terms, or to withhold for certain solemn occasions, or festive occasions, or on certain days. Therefore the power to put this restriction upon these retailers is clearly deducible from the very broad grant of power to withhold all license.
3. If it be argued that after this license was granted, the council could not curtail or restrict its unlimited exercise for one year, I answer that these plaintiffs, in order to obtain license, voluntarily agreed to take it subject to any future ordinance which might be passed by the council granting it, or by their successors. Therefore they stand precisely as if the ordinance had been passed prior to the issuance of the license. They not only so agreed, but came under bond with hands and seals thereunto affixed, to be controlled and regulated in their traffic by ordinances enacted in the future. This agreement and bond became part of the contract of license, as much so as if included in the same writing — and they are bound by their contract.
4. The plain facts, considered altogether, irrespective of any isolated views of law applicable to portions thereof, *202show that there should be no recovery, and that the verdict is right.
The suit is brought to recover damages from the town authorities as individuals, for their conduct in the discharge of their public trusts. It is brought, under the following state of facts. A wot and dry ticket were voted for for town authorities. Those in favor of the retail of spirituous liquors and those against it met in battle. There was an open field and a fair fight, and at the close of the day victory perched upon the hosts of temperance, and the dram-sellers were sorely diseomfitted.
What should, what could they do? They hastened to the outgoing council, before the victors who had fairly won the field could be installed, and applied for license. Everybody loves fair play. It looked wrong even to the outgoing party1 to run counter to the policy of a majority of the people, and to forestall their contemplated stoppage of the traffic. So they finally concluded not altogether to disoblige their friends, the applicants, but to grant-the license sub modo, on condition that they should be protected, and that the incoming administration should be permitted to do after liceni-e whatever they themselves could do before. Thereupon, on being installed a few days thereafter, the new council, naturally distrustful of those who thus procured license and anxious to do nothing without legal authority took legal counsel and advised with Judge Floyd in respect to their powers under this state of facts, and their charter. The judge advised them that they could not revoke the license, but that, they could regulate how itshonld be used ; and at their request drew up the ordinance in question which the council adopted. And this suit is brought by these plaintiffs, thus obtaining license against the will of the majority of the community in which they live, and thus under bond imposed by their own friends to abide the terms which should be imposed by the new council, against that council for their official conduct in passing the ordinance and enforcing it, on the ground that they acted ma-. *203liciously. It is sought to make these officers individually and personally liable for fines imposed and paid into the treasury of the town, and for profits on the liquors they could have sold whilst God was being worshipped, and in which the defendants had no personal or pecuniary interest whatever, notwithstanding the hot haste with which plaintiffs rushed to thwart the community, notwithstanding the contract they made and the bond they executed, and notwithstanding the prudent and considerate manner in which the ■defendants officially acted.
In my judgment there is neither law nor equity, nor good sense, nor good morals, in permitting plaintiffs to re co.ver one cent; and I therefore dissent from the judgment of reversal — with entire respect, let me add, for my colleagues, and with regret that my own convictions are too strong to permit me to yield to their view of the law.