dissenting.- I find no fault with the court’s statement of the principle, as an'abstract proposition of law, that “a contract is invalidated by the subsequent enactment of a police regulation which renders its performance illegal as to one of the parties,” but that principle is not, in my judgment, applicable to the contract now under consideration. Sudh a construction of the contract should be adopted as will obviate a forfeiture or abrogation, if that construction be fairly within the meaning of the language used. The clause concerning the use of the leased premises was intended merely to permit the use for the purposes named and to restrict the use to that extent. It was manifestly not intended as a covenant to use the premises for those purposes — certainly not for both purposes — the operation of a saloon and a hotel. There is nothing in the contract itself nor in the evidence in the case to show that the lessor was interested in that particular use of the premises. Therefore, it would be a very strained construction of the contract to hold that it was a covenant on the part of the lessee to so use the premises. If any doubt is felt on that point, it ought to be dispelled on consideration of the express stipulation of the contract that “in the event Pulaski County should vote dry in September, 1916, this lease shall terminate December 31,1916.” If the parties meant to create an absolute obligation on the part of the'lessee to operate a saloon on the premises, and to absolve him from that 'obligation whenever its performance should become unlawful, they would not have confined themselves to that stipulation on the subject, for they are presumed to have known .at the time the contract was entered into that the performance of such an undertaking might be rendered illegal by the failure of the electors to vote for license at the election in September, 1914, or by a majority of the adult inhabitants in that locality petitioning out the sale of liquor at any time under the “three-mile” law.
Treating the contract, therefore, as one merely permitting the use of the premises for the operation of a hotel and as a saloon, and restricting the occupancy to those uses, I do not think the principle referred to should be applied. Under that state of the ease, it can not be said that the contract has been subsequently invalidated by operation of law. The contract is still valid notwithstanding the subsequent enactment of the regulation restricting the use of the.premises so as to prohibit the operation of a saloon at that place. That part of the contract specifying the use to which the premises might be put is separable unless the contract be treated as a covenant on the part of the lessee to use the premises for the purposes named. The contract permits the use of the premises as a hotel and as a saloon, and, of course, extends to either one or both of the specified uses. The use of the premises for either one of the specified purposes would be within the letter of the contract. The test is this: Would the lessee be within his contractual rights in using the premises for the operation of a hotel without also operating a saloon? If so, he is not absolved from the obligation of the contract by reason of the fact that the new regulation enacted by the city council renders it unlawful for him to operate a saloon-at that place. In order to hold otherwise, it would be necessary to construe the contract as an affirmative undertaking on the part of the lessee to use the premises as a saloon as well as a hotel, but I do not understand the court to go that far — at any rate, it is not tenable to assume that position. There is some conflict in the authorities on this subject, but none of them (except the case of Heart v. East Tennessee Brewing Co., which is referred to later), go to the extent of holding, as this court does in the present case, that where the contract does not restrict the use of the leased premises to one purpose, is it invalidated by a subsequent enactment prohibiting the use for one of several purposes specified. The great weight of authority is, I think, to the effect that unless there is an affirmative undertaking on the part of the lessee to make a specified use of the premises — that is to say, unless the operation of the specified •business is a part of the contract — the subsequent enactment of a police regulation prohibiting the use does not of itself abrogate the contract. The oases are cited on the briefs, and it is only necessary to quote from a. few of them to show the state of the law on that subject.
The case of Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S. W. 197, involved a rental contract which provided that the leased premises 'Should be used only for “saloon purposes,” and subsequently the sale of intoxicants was, by vote of the people under the local option law, prohibited at that place. The lessee sought to escape the payment of rent, but the court, in holding him liable notwithstanding the fact that it had become unlawful to use the premises for the purposes named in the contract, said: “Appellee had no interest in the business to be conducted in the leased building, and appellant knew that, by a vote of the people under the existing statute referred to, the ‘saloon business,’ which included the sale of intoxicating liquors, might be prohibited before the beginning of the lease term. This was a probable contingency which an ordinarily prudent man should have foreseen and provided for in his contract, and, having failed to so do, he took the risk upon himself, and must abide the consequences. ”
In Goodrum Tobacco Co. v. Potts-Thompson Liquor Co., 133 Ga. 776, 66 S. E. 1081, 26 L. R. A. (N. S.) 498, there was a lease contract which stated that “the purpose of this lease is for the operation by second party of a general retail liquor business,” and the lessee ¡abandoned the premises and refused to pay rent ¡after the sale of liquor was prohibited by statute. The ¡court, in disposing of the controversy, said: “We do not deem it necessary for the decision of this ¡case to decide whether the clause that ‘the purpose of this lease is for the operation iby second party of a general retail liquor business,’ denotes only permission to conduct that particular business, or restricts the tenants from devoting the premises to other lawful beneficial use. In either event, the tenant would not be relieved from the payment of rent.”
In Teller v. Boyle, 132 Pa. 56, the facts were that the lease ¡contract contained a covenant that the lessee would not permit the premises to be occupied otherwise than as a saloon and dwelling, and it became impossible to operate a saloon by reason of the fact that the court of quarter sessions refused to relicense the lessee to sell intoxicating liquors. It was held that the lessee was responsible for rent, notwithstanding the facts stated, and the court said: “If the lessor were insisting that his lessee should sell intoxicating liquors, and claiming the right to forfeit the lease because he refused to comply, it would doubtless be a good defense to .say that he was forbidden by law to sell; but that is not this case. The license was a matter with which the lessor had nothing to do. The risk of obtaining it was assumed by the lessee; and that risk, as he must have known, depended on many contingencies, such as public necessity, character and conduct of the applicant.’'’
In Gaston v. Gordon, 208 Mass. 265, the facts were quite similar to those in the Pennsylvania case, supra, and the Massachusetts court reached the same ¡conclusion as to jhe law. The court, in stating its conclusions, said: “There is nothing about the lease to raise the inference that the parties intended it to be subject to an implied condition that the defendant should procure a license. On the contrary, there is ¡much to lead to the opposite conclusion. It is elaborate in all its details. * * * The lease seems to be a studied effort to put into written phrase every consideration which was a part of their agreement. It was apparently an intelligent attempt to express their contract in such a way and with such fullness that nothing could be left uncertain. * * * The lessee has bound himself in unmistakable language to pay the rent without any qualification dependent upon his failure to obtain the necessary authority from public officers. Although this mischance renders it impossible for him to make the valuable use of the property which was contemplated, that was a contingency which ought-to have been foreseen, and some anticipatory provision of partial or entire exoneration from liability inserted in the lease if such was the intention of the parties. ” .
The theory upon which the rule rests is that the lessee, who voluntarily takes upon himself an unconditional obligation to pay rent, is not excused from such payment merely because he is prohibited by law, or by any agency other than the lessor himself, from using the premises. The principle was stated by Chancellor Kent as follows: “If a party will voluntarily create a duty or charge upon himself, he ought to abide by it when the other party is not in fault, and when he might have provided, if he had chosen, against his responsibility in case of such accidents.” 3 Kent. Comm. 467. That principle finds peculiar force in the present case where the parties themselves have expressly stipulated that the lessee shall be exonerated from liability for rent in one contingency (i. e., that of a majority vote against license in September, 1916), and under the maxim expressio unius est exclusio alterius. the presumption arises that they did not intend that the lessee should, under any other circumstances, be excused. Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1; 2 Wharton on Contracts, section 674.
• There are only two cases which seem to support the conclusion reached by the majority, -and they are cited in the opinion. Heart v. East Tennessee Brewing Co., 121 Tenn. 69, 19 L. R. A. (N. S.) 964; Greil Brothers v. Mabson, 179 Ala. 444, 60 So. 876. The Alabama case, however, distinguishes a former decision of that court (O’Byrne v. Henley, 161 Ala. 620) which is directly against the decision in the present case. Both of tbpse oases cited hy the majority are distinguishable from the present one in that a single use of the premises was specified. In the present case, there are two uses specified, and, as it clearly appears to me, the contract does not treat them as inseparable uses. Those cases are also distinguishable from the present one in thát the parties to the contracts did not undertake to specify any circumstances under which payment of rent would be excused, and no presumption arose from the expression of one excuse against ian intention to exclude others. The maxim expressio wnius est exclusio alterius did not, in other words, arise. The Tennessee case stands alone, .and, in my judgment, is not supported by any other authority.
My conclusion, therefore, is that the court has misinterpreted the law and rendered a decision which is neither sound upon principle nor supported by the weight of authority.