'dissenting. I do not propose to submit any elaboi’ate ai'gument in giving the reasons which impel me to dissent from the conclusions, as well as the reasoning, which my brethren have adopted in this case. The reasoning of a majority of the court is based on the proposition that, the local option liquor law (embodied in section 1541 et seq. of the Political' Code) being in force, and it being a general law, our constitutional provision, which forbids the enactment of a special law in any case for which provision has been made by an existing general law, makes void an act of the General Assembly which prohibits and makes penal the sale of spirituous or intoxicating liquors within the limits of a designated town or city. This reasoning, in my judgment, is not sound. The local option law, of itself, does not prohibit the sale of spirituous or intoxicating liquors; and in a county which has not adopted the provisions of that act it can not be held that there is a general law prohibiting such sales; and if it be true that there is no general law which forbids the sale, it is clearly and undeniably within the power of the General Assembly to prohibit sales of liquors within any given portion of the territory of this State. It is commonly supposed that the local option law is a measure in behalf of temperance, and is aimed at the prohibition of the traffic in liquors. To give it the effect which it must have, under the ruling of a majority of the court, in this instance at least, its effect is to authorize the sale where the legislature has forbidden it.
The prohibition or regulation of the liquor traffic is the exercise of the police power of the State, concerning which Judge Cooley, citing from a large number of authorities, declares,. “By this general police power of the State, persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which, no question ever was or, upon acknowledged general principles, ever can be made so far as natural persons are concerned.”' Constitutional Limitations (5th ed.), 708. And in the case of *395Beer Company v. Massachusetts, 97 U. S. 25, Mr. Justice Bradley, citing the case of Boyd v. Alabama, 94 U. S. 645, says “ Whatever difference of opinion may exist as, to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health,, and prosperity of the citizens, and to the preservation of good order and the public morals. The legislature can not, by any contract, divest itself of the power to provide for these objects.. They belong emphatically to that class of objects which demand the application of the maxim salus populi suprema lex; and they are to be attained and provided for by such proper means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself.” As to the application of this power to the traffic in liquors, Mr. Black in his-work on Intoxicating Liquors, § 31, citing a number of authorities, declares the law to be: “ That the regulation of the manufacture and sale of intoxicating liquors is a proper subject for the exercise of the police power, is a. proposition which has-never for a moment been doubted. On all the grounds which are recognized as most safely and surely bringing a matter within the scope of this power, the production and sale of intoxicants is included within the sphere of its legitimate operations.” In speaking of the limitations of this power, Tiedeman says the legislature is clearly the department of the government which can and does exercise the police power, and consequently in the limitations upon the legislative power are to be found the limitations of the police power. Tiedeman, Limitations of Police Power, 5. So that it will be admitted that the legislature can, in the exercise of the police power of the State, prohibit the traffic in liquors within the limits of the State or any portion thereof, and this power is only limited by some existing inhibition of the constitution. As above stated, the majority of my brethren find this inhibition to exist in the provision which forbids the enactment of a special law in any case' for which provision has been made by an existing general law. A law of this State provides for the issuance of licenses, under stated terms and restrictions, to engage in the sale of intoxicat*396ing liquors. With such a law in force the local option law (which is general in its nature) gave to the people of the various counties of this State the privilege of determining whether such license should be granted or whether sales of liquors should be prohibited in a particular county. This privilege is to be exercised by an election whenever a sufficient number of the people of a county desire. Until this privilege is exercised the local option law is inoperative in a particular county. It has no force or effect to prohibit the sale until adopted at an election held by the people in a county.
In my judgment the reasoning is fallacious which leads to the conclusion that the existence of a law which gives to the people of a county the privilege of saying whether liquor shall be sold in that county, or whether it shall be prohibited, has the effect of taking from the legislature the right to the exercise of the police power in a particular county where such election has not been held, or if held, sales of liquor are not prohibited. That act can not go into effect until its adoption. When it has been duly adopted and put in force, it then, but not until then, constitutes the exclusive system for the regulation of liquor-selling .in that locality. 78 Pa. St. 490; 63 Md. 120; 64 Miss. 462; 5 Tex. App. 155. It would not be accurate to say that after the provisions of such a law had been put in force, prior laws, which are inconsistent with its terms, are repealed; but such prior laws authorizing licenses to issue are suspended by the local option law. State v. Smith, 7 So. Rep. 848. And upon the terms of the local option law ceasing to be operative in a particular county, prior laws regulating the issue of licenses are again in force. Butler v. The State, 25 Fla. 327.
The legislature of this State in 1895 passed an act to prohibit the sale of spirituous, alcoholic, malt, or intoxicating liquors within the incorporate limits of the town of DeSoto, in Sumter county. In my judgment the General Assembly hapl the clear right to pass this act," and its provisions should be put in force. The town of DeSoto is one of the political divisions of this State, created by the General Assembly. While it is located in the county of Sumter, it is not contended that the provisions of the general local option law have ever been *397adopted by the people of that county, and at the time of the passage of the act sales of liquors were authorized to be made under licenses in Sumter county. This being true, the power is inherent in the General Assembly to prohibit the sale in the entire county, in any portion of the county, or in any incorporated town or city within the limits of the county. And in deference to these views I am constrained to differ with my brethren in the conclusions which they have reached in the decision of the case.