in a separate opinion, concurring with Judge Campbell upon this point, said: “I agree with my brother Campbell, this cannot lawfully be done under our form of government. It is within the province of the legislature to allow any person to engage in the business of making and selling intoxicating liquors. It is also within its power to limit the business to certain persons or classes, or to attach to its exercise conditions and such restrictions as it may deem proper for the best interest of the State and the people, not inconsistent with the spirit of the provisions of the constitution. But when conditions only are imposed, and all persons are permitted to engage in the business upon performing such conditions, the business remains a lawful one while it may be carried on, and such conditions must be reasonable. The legislature alone has the power to impose them, and when they relate to qualifications of the person who is to carry it on, involving his character and habits, requiring those of fitness for the business, the law-mahing power shoiild be specific in its requirements, and state particularly the elements entering into the necessary qualifications. This should be done that persons desiring to engage in the business may know whether they possess such qualifications or not, and, if they are denied to them, that they may have the opportunity of showing that they do possess them. The right to carry on a lawful business cannot be made to depend upon the arbitrary will or caprice of any man, or local board, as is done under this law. Some standard of qualification must be fixed by the law itself, and then, whether the person who desires to engage in the business possesses the qualifications, measured by such standard, may be submitted to' and determined by such local board as the legislature may designate.” The italics are my own.
*484In the appeal of the State v. Tenant, 110 N. C. 609, 15 L. R. A. 423, the authorities are collected and reviewed by the court, and it was there held that the ordinance in question, forbidding any person to proceed with the erection of a building until a permit was issued to the owner, ought to have specified the conditions of the permit. Avery, J., there said: “It is equally clear, that if an ordinance is passed by a municipal corporation, which, upon its face, restricts the right of dominion which the individual might otherivise exercise without question, not according to any general or uniform rule, but so as to' make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of aldermen, who may exercise it so as to give exclusive profits or privileges to particular persons.”
Decisions upon this subject are many, but I do not deem it necessary to comment upon them or extend this opinion further by quotations therefrom. In addition to those, however, that I have cited, see the following: O’Neil v. The American Fire Ins. Co., 166 Pa. St. 72, 26 L. R. A. 715; City of Newton v. Belger, 143 Mass. 598; May v. People, 1 Colo. App. 157, 27 Pac. Rep. 1010; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Anderson v. City of Wellington, 40 Kan. 173, 10 Am. St. Rep. 175 ; In re Frazee, supra; Tugman v. Chicago, 78 Ill. 405; Village of Braceville v. Doherty, 30 Ill. App. 645; Barthet v. City of New Orleans, 24 Fed. Rep. 563; Town of Lake View v. Letz, 44 Ill. 81; State v. Mahner (La.), 9 So. Rep. 480; City of East St. Louis v. Wehrung, 50 Ill. 28; City of Kinmundy v. Mahan, 72 Ill. 462; Horn v. People, 25 Mich. 221; Waite v. Garston, etc., L. R., 3 Q. B. 5; State, ex rel., v. Der*485ing, 84 Wis. 585, 36 Am. St. Rep. 948, Chicago v. Trotter, 136 Ill. 430.
Under a constitutional government like ours the conduct of its citizens cannot be subjected to the arbitrary will of any individual, and anything that may tend to despotism, even in a mild form, is contrary to the genius of a free government. By section 23, of the Bill of Eights, it is seen that the general assembly is forbidden to grant to any citizen or class of citizens, privileges, etc., which upon the same terms shall not equally belong to all citizens. In Cate v. State, 3 Sneed 120, it was said of the term “privilege” that “It means something which cannot be enjoyed without legal authority, generally a license.” In French v. Baker, 4 Sneed, 193, the definition given is this: “Any occupation which was not open to every citizen, but could only be exercised by a license from some constituted authority.” The right of selling groceries, or conducting other lawful business in connection with the sale of intoxicating liquors is manifestly a privilege which cannot be granted under like conditions to some citizens and refused to others. Whether the legislature can prescribe or impose conditions upon the sale of intoxicating liquors is not the question involved, but the point at issue is whether the law-making power can confer upon county commissioners authority to grant the privilege of conducting some other business in conjunction with that of selling liquors to some of the State’s citizens and refuse it to others, where there is no difference in condition, situation or qualification. That which the legislature cannot do directly, it cannot authorize to be done indirectly through the agency of some local board. I think it is clear that the provision embraced in the proviso of section two is at least antagonistic to the section of *486tbe constitution above mentioned, and therefore void.
But it is insisted, by counsel for the State, that this part of the section may be adjudged void, and still full force and effect may be given to that portion of it which requires that the sale of the liquors shall be carried on in a room separate from any other business. I cannot concur with counsel in this view of the question. In Griffin v. State, ex rel., 119 Ind. 520, it was said by this court: “It is undoubtedly the law that when the several provisions of an act are independent, some may stand although others may fall, but this occurs only when the provisions are clearly independent As said by Shaw, C. J., in Warren v. Mayor, etc., 2 Gray, 84, the rule that some portions of a statute may stand while others fall, ‘must be taken with this; limitation, that the parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other.' " In the appeal of State, ex rel., v. Blend, 121 Ind. 514, the rule was there asserted as. follows: “It is quite well settled that where a part of a statute is unconstitutional, if such part is so connected with, the other parts as that they mutually depend upon each other as conditions, considerations, or compensations for each other, so as to warrant the belief that the legislature intended them as a whole, and if they could not be carried into effect the legislature would not have passed the residue independently of that which is void, then the whole act must fall. Cooley Const. Lim. (5th ed.), 213; Meshmeier v. State, supra; State, ex rel., v. Denny, supra; Griffin v. State, ex rel., 119 Ind. 520. On the other hand, it is equally well settled that when a part of a statute is unconstitutional, if by striking from the act all that part which is void, that which is left is complete in itself, sensible,'capable of being executed and wholly independent of that which' is re*487jected, the courts will reject that which is unconstitutional and enforce the remainder. Cooley Const. Lim. (5th ed.), p. 178; Clark v. Ellis, 2 Blackf. 8; Maize v. State, 4 Ind. 342; State v. Newton, 59 Ind. 173; Ingerman v. Noblesville Tp., 90 Ind. 393.”
In Meshmeier v. State, 11 Ind. 482, the rule, and the reason by which it was upheld, was well stated by this court, per Worden, J. It wa,s there said: “But it would seem that the provisions of the statute held to be constitutional, should be substantially the same, when considered by themselves, as when taken in. connection with other parts of the statute held to be unconstitutional; or, in other words, where that part of a statute which is unconstitutional, so limits and qualifies the remaining portion, that the latter, when stripped of such unconstitutional provisions, is essentially different, in its effect and operation, from what it would be were the whole law valid, it would seem that the whole law should fall. The remaining portion of the statute, when thus stripped of its limitations and qualifications, cannot have the force of law, because it is not an expression of the legislative will. The legislature pass an entire statute, on the supposition, of course, that it is all valid, and to take effect. The courts find some of its essential elements in conflict with the constitution, strip it of those elements, and leave the remaining portion, mutilated and transformed into a different thing from what it was when it left the hands of the legislature. The statute thus emasculated, is not the creature of the legislature; and it would be an act of legislation on the part of the courts, to put in force. The courts have no right thus to usurp the province of the legislature.
“The statute in question prohibits the retail of spirituous liquors (save for the purposes herein named) except upon two conditions: First, the consent of the majority of the voters of the township' who may cast *488their votes on that subject; and, secondly, giving bond and procuring a license.
“The condition respecting the vote, so enters into, qualifies, and forms a part of the prohibition, as to leave that an essentially different enactment, when stripped of such condition. The first condition qualifies the prohibitory feature as much as the second, and the law could as well be enforced with the second condition stricken out, as the first. In such case, the law would be purely prohibitory, and void,as' has been held in reference to the statute of 1855. Suppose the condition in reference to giving bond and procuring license were void by the constitution. In such case, it will hardly be contended that it might be stricken out, and yet, that the balance would be substantially the same laAV, as when taken in connection with the part providing for bond and license. There is conceived to be no difference in principle between striking out the first and the second condition. They both, to a greater or less extent, enter into, and form a part of an entire provision. They are so blended with the entire enactment, that neither can be separated therefrom Avithout destroying the harmony of the whole, and leaving the remaining portion to have an effect different from that shown by the whole law to have been 'the intent of the legislature. Upon this view of the statute, the case of Washington v. State, 8 Eng. (Ark.) 752, seems to be in point. The defendant was indicted for keeping a ten-pin alley without paying a license either into the State or county treasury. The court says:
'For the reasons here set forth, we are bound to decide that so much of the act of the 8th of January, 1845, as prohibits any person setting up a billiard table or ten-pin alley without paying a sum of money into the State treasury as a license therefor, *489is repugnant to the constitution and void; because there is no power to do that indirectly which cannot be done directly; and the license is none the less a tax for the privilege of setting up such a table or alley, because collected or enforced by means of a criminal prosecution.
‘The indictment in this case also contains a count for setting up and keeping a ten-pin alley, without first paying the sum of f!25.00 into the treasury of Jefferson county. Although our opinion is that the general assembly may constitutionally impose, or authorize the county court to impose, such tax by conferring on them the power to grant licenses: as a means of raising revenue for county purposes; and although the payment of the sum specified would seem to be an implied license to exhibit the table or alley, yet the whole scope and provisions of the act are so intimately blended that we do not feel warranted by any rule of judicial interpretation to separate these provisions in order to give to a part of the act an effect we cannot presume was intended. The whole enactment must therefore stand or fall together.’ ”
In Cooley’s Const. Lim. (6th ed.), in a foot note on page 212,the rule is stated with much force as follows:
“It must be obvious, in any case where part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allowable in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case, we know the legislature designed the whole act to have effect, and we should sustain it if possible; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, *490therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the constitution can stand by itself, and that in the legislative intent it was not to' be controlled or modified in its construction and effect by the part which was void.”
In the case of Pollock v. Farmers’ Loan, etc., Co., 158 U. S. 601 (the Income Tax Case), on this point the court said:
“And in the case before us there is no question as to the validity of this act, except sections 27 to 37, inclusive, which relate to the subject which has been under discussion; and as to them' we think the rule laid down by Chief Justice Shaw in Warren v. Charlestown, 2 Gray, 84, is applicable; that if the different parts ‘are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole; and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.’ Or, as the point is put by Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S. 270, 304: ‘It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see, and to declare, that the intention of the legislature was that the part pronounced valid should be enforcible, even though the other part should fail. To hold otherwise would be to substitute, for the law *491intended by the legislature, one they may never have been willing by itself to enact.’ And again, as stated by the same eminent judge in Spraigue v. Thompson, 118 U. S. 90, 95, where it was urged that certain illegal exceptions in a section of a statute might be disregarded, but that the rest could stand: ‘The insuperable difficulty with the application of that principle of construction to the present instance is; that by rejecting the exceptions intended by the legislature of Georgia the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions.’ ”
The question is, can the invalid part of this section be eliminated and the remainder of it be enforced, or, in other words, is the void provision embraced in the proviso and that part of the section which forbids the sale of liquors in a room wherein other business is conducted, so distinctly separated and independent of each other that the latter can stand alone and thereby express the- true intent of the legislature? I think that this question must be answered in the negative:
A proviso in a statute is said to be something en-grafted upon a preceding enactment intended as an exception to it, or in some manner to modify it, and the general intent of the preceding provision will be controlled by the particular intent subsequently expressed. Its nature and appropriate office being to restrain or qualify some antecedent matter; it should therefore be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter, and it is to be construed with the preceding parts of the clause to which it is attached. This is said not to be an arbitrary rule to be enforced
*492at all events, but is based upon the presumption that the meaning of the law-maker is thereby reached. Sutherland on Statutory Construction, sections 222 and 223. See also Potter & Dwarris on Statutes, pp. 117 and 118. The expression of the legislative will, in the first clause, whereby the licensed dealer in liquors is required to conduct the sale thereof in a room separate from other business, must be interpreted and construed with the subsequent expression of such will, as it is disclosed in the same section by the proviso to the effect that the board of commissioners may grant permission to said dealer to carry on other business in such room. If this proviso does not. modify or create an exception to the first clause, then it must be presumed that the legislature enacted it for a useless purpose, and this a court is not authorized to do. On the supposition that this section as it came from the hands of the law-makers was valid in all respects, it may-at least be suggested that in the event the State undertook to base a, criminal prosecution thereon against a licensed retailer for failure to comply with the requirement to provide a room for the sale of his liquors in which no other business was conducted, under the rules of criminal pleading, it would be required to negative that he had been granted a permit ais provided by said proviso. See Brutton v. State, 4 Inch 602. And in the event the defendant had duly secured such a permit, and was the holder thereof at the time the alleged offense was committed, he undoubtedly, upon the trial, could introduce the same in evidence as a complete defense to such prosecution. Therefore, to hold that the invalid portion of this section may be stricken out and disregarded, and, that the other clause with which it is so closely and distinctly connected, can stand and be enforced, would evidently result in substituting for *493the law intended by the legislature one that they may never have intended to enact. This, courts are not permitted to do. Certainly, under the rule, to which I have herein referred, I am warranted in the presumption and belief that had the legislature supposed that the grant of power conferred on the board of commissioners, by the proviso which it had engrafted upon the clause in question, was invalid, it would not have adopted the prohibitory features of the section relating to the carrying on of other business in the same room. For the reasons given by the many authorities cited, I am of the opinion that the clause, or part of the section in controversy, must fall with that which in my opinion is invalid.
It follows, therefore, for the reason that this provision of the section cannot be rescued from that which is void, no prosecution can be based thereon, and the judgment in this appeal should, I think, be affirmed.
Hackney, J.— I give my consent to all of the constructions of the act in question, as concurred in by the majority, excepting that with reference to section two of said act. As to that section I do not believe it to have been designed to relate to the personal fitness of an applicant to sell intoxicants, and I am of opinion that, for the reasons stated by Jordan', J., the proviso of said section is unconstitutional.