dissenting:
I concur in the proposition, announced in the majority-opinion, that the legislature has authority to confer upon municipal corporations sole power to grant or refuse license to sell spiritous liquors within their corporate limits, this Court being committed to that proposition, by prior decisions construing our Constitution. But I can not concur in the conclusion reached that the legislature, in exercise of this authority, has ever directly or indirectly, or by delegated authority to the circuit court of Mason county,, conferred upon the town council of Point Pleasant such sole power.
The opinion attempts to justify this conclusion upon three propositions: First, that the title and substantive provisions, of the act of 1891 evince a purpose on the part of the legislature of “making a complete law for the government of the town of Point Pleasant and fully defining its powers,” so that it might not thereafter be necessary to look to the provisions of the act of 1794 or of 1860, or to any provision of chapter 47 of the Code, but to the provisions of the act of 1891 alone, to ascertain the limits of the powers and *396■duties of said corporation; second, that section 35 of said act of 1891, authorizing- the council to prescribe by ordinance “ the manner in which licenses of all kinds shall be applied for and granted” and to “require the payment of the tax thereon before delivery to the person applying therefor,” was intended to be and in fact was a substituted provision for section 32 of the act of 1860, which provided that “whenever anything for which a state license is re■quired is to be done within the said town the council may require a town license to be had for doing the same, and may impose a tax thereon for the use of the town; .and the council may, in any case in which it sees fit, require from the person so licensed a bond, with sureties, in .such penalty and with such condition as it may think proper”, and that this substituted provision, considered in the light •of the title and other substantive provisions of the act of 1891, must be construed to confer upon the council sole power to grant liquor licenses; third, that, whether or no the second proposition be correct, the proceedings and order of the circuit court of Mason county of 1883, by which that court undertook to confer upon the council of said town sole power to grant such licenses, was competent to do so, and, whether it was or not, section 40 of the act of 1891, the repealing clause of that act, providing that it “shall not be construed to appeal, change or modify any previous act not inconsistent with this act authorizing said town to contract debts or borrow money, or to take away any of the powers conferred upon said town or upon the mayor or council or .any of the officers thereof conferred by general law, or any .amendment of its charter heretofore made by the circuit court of Mason county, except so far as the same may be inconsistent with the powers hereby conferred,” must, in •order to effectuate the alleged intendment of thie legislature to create a complete organic law for said town, be converted into a positive enactment, by the general reference there made, conferring sole power upon the council of said town to grant liquor licenses. As I understand the opinion, the last proposition stands alone upon the views of Judge PofeenbaRGBR, who prepared that opinion, the other judges not concurring therein.
On the first proposition, it may as well be said of the act *397of 1794 and of 1860 as of the act of 1891 that they evince-a purpose on the part of the legislature to create a complete organic law for the government'of said municipality;, but neither invested the council with the sole power to grant licenses to sell spiritous liquors. The argument, it seems to me, is based on the false assumption that a complete organic law for the government of the municipality necessarily requires and implies sole power to deal with-liquor licenses, state as well as municipal, a non sequitur. Sole power to grant licenses has been conferred upon few municipalities of the state; but all are empowered, either by special provision of their charters or by the general provisions of section 33 of chapter 47 of the Code, to require a municipal license and impose a tax thereon when anything for which a state license is required is to be done within the municipality. By the repealing section of the act of 1891, such powers conferred by general law were-specially reserved to the town of Point Pleasant. I am unable therefore to appreciate the force of the argument, and of the illustrations drawn from the decisions referred to-, on the first proposition. It seems to me the decisions and authorities referred to have very remote, if any, application to-this branch of the subject.
The second proposition, it seems to me, is the one mainly relied upon in the opinion of the Court, the one on which the concurring judges have mainly united. It rests principally upon the assumption that section 35 of the act of 1891 was intended to confer upon the council, not by express-terms but by implication, sole power to grant licenses to sell spiritous liquors- — a substitute, as I have said, for section 32 of the act of 1860. The opinion of the Court discloses in part the position in which this section 35 stood in the act as it was originally introduced in the legislature. In the bill as introduced, it originally stood as section 37, section 35 then prescribing the things for the doing of which the .council should have power to grant and revoke licenses,, and section 36 providing for the taking of bonds from persons licensed to sell spiritous liquors. These sections are quoted in full in the opinion of the Court. By reference-to the original section 35 it will be seen that it did not confer upon the council the sole power to grant licenses to sell *398spiritous liquors, and the purpose of it was solely to authorize the council to impose a tax thereon for municipal purposes. After the effort was made to amend section 35 so as to invest the council with sole power on the subject, the result, as shown by the journals of the legislature, was that both this section and section 36 were stricken out, thereby eliminating the only provisions of the act directly •conferring. upon the council power to grant licenses for any purpose. After these sections were thus eliminated, •original section 37 was made, without change, section 35 of the act as finally passed. It is clearly to be seen that this section, read in connection with the two so eliminated, was, not intended to confer any power to grant licenses for any purpose, but, by its very terms, it only authorized the council to prescribe by ordinance the manner in which licenses should be applied for and granted, and certainly, as originally proposed, related solely to licenses for municipal purposes. But now the ai’gument is that, the sections specially conferring power to grant licenses to the municipality having been stricken out, that section, which was intended to authorize the council to prescribe the manner in which licenses for municipal purposes should be applied for and granted, must be so construed as to give sole power and authority over the whole subject of license taxes, state a/nd municipal. In my opinion, neither its original place in the bill as proposed nor its terms will admit of such construction.
But it is argued that, without this section is thus construed, it will be left meaningless. I do not think so. It may still be given full force and effect, and made to execute its original purpose. What are we to conclude from the action of the legislature in striking out said sections 35 and 36 ? That the legislature intended thereby to deprive the municipality of all power to grant and revoke licenses. By no means. Power is fully conferred by section 33 of chapter 47 of the Code — reserved, if that were necessary, in the repealing section of the act of 1891. Concededly that section of the general law is as much a part of the organic law of the municipality of Point Pleasant as if it had been bodily inserted in the place of the two sections stricken out of the act of 1891. If we read this section of the general *399law into that act, as we must, then every provision of said section 35 as it now stands, relating to the mode of obtaining licenses, may be given full force and effect; and this is plainly the effect which the legislature intended it should have.
That said section 35 conferred any such authority as is now claimed for it was not even suggested upon the original hearing. The sole ground of defense then was that, by the proceedings and order of the circuit court of Mason county in 1883, the council had been invested with sole power to grant licenses for state and municipal purposes to sell spir-itous liquors within the corporate limits. This brings me to the third and last proposition. I make the same answer to.it now as I made then.
Our Constitution of 1872, section 35, Article VI., provides that 4 ‘ the legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, for * * incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand. * * The legislature shall provide, by general laws, for the foregoing and all other cases for which provisions can be so made; and in no case shall a special act be passed, where a general law would be made proper and can be made applicable to the case, nor in any other case' in which the courts have jurisdiction and are competent to give the relief asked for. ” After the adoption of the Constitution of 1872, the legislature by sundry acts amended, improved and re-enacted chapter 47 of the Code, so as to render it general law for the incorporation of cities, towns and villages. Section 1 of that chapter provides: “The cities, towns and villages in this state, heretofore established under the laws of Virginia or of this state, shall remain subject to the law now in force and applicable thereto respectively, and the provisions hereinafter contained in this chapter shall be deemed applicable only to cities, towns and villages hereafter established, except that the municipal authorities of cities, towns or villages heretofore established other than the city of Wheeling may exercise the powers conferred by this chapter,'although the same may not be conferred by their -charter, and so far as this chapter confers power on the municipal authorities of a city, *400town or village other than said city of Wheeling, not conferred by the charter of any such city, town or village, the same shall be deemed as an amendment to said charter. Any city, town or village in this state, incorporated by a special act of the legislature of Virginia or of this state, and exercising the power conferred by this chapter, may by ordinance of the council of said city, town or village adopt this chapter, and thereafter the same officers shall be elected or appointed as are provided for by this chapter.” Section 28, relating to the powers and duties of the council, provides that the “council of such city, town or village shall have power ** to prevent the illegal sale of all intoxicating liquors, drinks, mixtures and preparations therein.” And section 33, relating to licenses, provides: “ Whenever anything for which a state license is required is to be done within such city, town or village, the council may require a city, town or village license therefor, and may impose a tax thereon for the use of the city, town or village. But no license to sell, offer or expose for sale any brandy, whiskey, rum, gin, wine, porter, ale or beer, or any intoxicating liquor, drink, mixture, or preparation whatever within such city, town or village, or within one mile of the corporate limits thereof, unless it be within another incorporated city, town or village, shall be authorized or granted except as provided in chapter thirty-two of this Code.” Section 47 reads: “No special act shall be passed incorporating or amending the charters of any city, town or village containing a population of less than two thousand, but the incorporation, of all such cities, towns and villages and the amendment of the charter thereof shall be as now is, or shall hereafter be5i provided by general law.”
By chapter 78, acts of 1877, the legislature undertook to provide by general law for amending charters of cities, towns and villages, imposing the duty upon the circuit court. The six sections of this act are now incorporated in chapter 47 of the Code as sections 47a I., etc. It was pursuant to the provisions of this act, no doubt, that the circuit court of Mason county in 1883 proceeded to amend the charter of the town of Point Pleasant. By act of 1891, said town having increased in population beyond the two thousand limit, the legislature amended its *401charter as already shown. When the license court, therefore, undertook to grant the license to Joseph Yarian in April, 1905, it proceeded upon the supposition that, by the amendment of its charter in 1883 and by virtue of sections 10, 11, 12 and 13 of chapter 32 of the Code as amended by the acts of the extraordinary session of 1904, then in force, it was authorized, without the consent of the county court to grant said license. If, therefore, the amendment of the charter in 1883 was a valid act and vested in the council the sole power to grant licenses, Varian’s license protected Harden, the agent of Yarian, and he is not guilty of the offense charged; otherwise, he is. Such authority was not conferred on the council of said town, by implication, by the repealing clause of the said act of 1891 providing that the said act should not be construed to take away any of the powers conferred by any amendment of its charter heretofore made by the circuit court; for if the circuit court was without jurisdiction to amend, the proceedings of 1883 conferred no power, and there was no such power to protect.
Let us inquire at this point what were the powers which the legislature intended to confer upon the circuit court by chapter 78 of the acts of 1877. The original power conferred upon the circuit court by chapter 47, after hearing the application and supervising the proceedings directed by the previous sections, is by section 9, by an order entered of record, to direct the clerk of said court to issue a certificate of incorporation in form and substance as follows: “A certificate under oath of A. B., C. D. and L- F. was this day filed, showing that a majority of all the qualified voters residing in the following boundai-y, towit: beginning etc., have been given in due form of law in favor of the incorporation of the town of-in the county of-, bounded as herein set forth. And it appearing to the satisfaction of the court that all the provisions of chapter forty-seven of the Code of West Virginia have been complied with by the applicants for said inncorporation, the said town is duly authorized within the corporate Unnits aforesaid to exercise all the corporate -powers conferred by the said chapter from and after the date of this certificate.” The woi’ds of the certificate underscored by me are significant. They show that *402when such charter is granted to an incorporated city, town or village the limits of its authority ai-e defined by the provisions of chapter 47. In this connection we direct attention to that clause of section 3 of chapter 78, acts of 1877, as follows: “If the object of the petitioners is to enlarge or diminish the boundary of su¿h city, town or village, such answer may be filed by one or more freeholders residing upon or owning the territory proposed to be annexed to or included in the corporate, limits of such city, town or village;” and to the clause of section 4 of the same act as follows: “ If no answer is filed as aforesaid, the court may upon the petition alone grant the relief prayed for or the object sought to be attained; and the court is vested with authority to have such orders entered and such surveys made and other acts done as may be necessary to enable it to decide the case 'fairly upon .its merits. ” Attention is also directed to the provision of section 5 of that act, directing recordation of the amendments in the chancery order book of the court, and providing that “they, if not inconsistent with the laws of this state, shall become part or parts of the charter of said city, town or village.” Is it not apparent from these provisions that the authority given the court to amend a municipal charter is limited to amendments of these provisions of the charter which it is authorized in the first instance to grant, viz. those relating to the boundary of the territory included, the name of the town, and the like, and not to enlargement of the powers of the municipality prescribed by the original charter or in the general law? By section 5 of said chapter 78, it is only when the amendment of the circuit court is not inconsistent with the laws of this state that it becomes part or parts of the charter granted. Is not the amendment of 1883, which the circuit court undertook to enact, inconsistent with chapter 47 of. the Code, with the provisions of section 39 of article VI. of the Constitution, and with the general policy of the law that no special charters [or privileges shall be granted to cities and towns with a population under two thousand? If this be true — then, by the very terms of the act under which the circuit court proceeded, such inconsistent provision could become no part of the charter. I am clearly of the opinion that the limit of the power the legislature *403intended to confer upon ■ the circuit court- by-the ■ act ' of 1877 is confined, and was intended to be, confined, to amendments embraced within the scope, of the charter which such court is by chapter 47 authorized to grant. Certainly it was never intended to confer upon the circuit court by that act power at will to amend any and every provision, of the general law or of the charter powers prescribed by previous special acts of the legislature.
But, suppose it was so .intended, such attempted imposition by the legislature of its functions upon the judicial branch, of the state government would be abortive and ’fail of its object. While it is true that by section 12 of article VIII. of the constitution prescribing the jurisdiction of the circuit court, it is provided that they “ shall also have such other jurisdiction, whether supervisory, original, appellate or concurrent, as may be prescribed in law,” yet such general jurisdiction must necessarily be confined to matters judicial or quasi judicial, and not extended to strictly legisr lative acts. Chapter 78 of the acts of 1877 has never as yet been interpreted by this Court; but at least two cases have interpreted the provisions of chapter 47 conferring upon the circuit court authority to grant municipal charters.
In Elder v. Incorporators of Central City, 40 W. Va. 222, it was held that “ chapter 47 of the Code, in relation to the incorporation of cities, towns and villages, in so .far as it confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the' power of the legislative department of the state government, is constitutional and valid.” But, says that opinion: “This statute itself erects the local body of citizens into a municipal corporation upon their bringing themselves within its provision and upon complying with its terms, all of which are specific and fixed therein; and whether the facts, thus required exist in the particular case the circuit court,after due notice to all concerned and an opportunity to be heard against the application, ascertains and determines. This is, at least an administrative or quasi judicial function, which the circuit court may be authorized to perform.”
In In re Town of Union Mines, 39 W. Va. 179, the first *404point of the syllabus is similar to that in Elder v. Incorporators quoted above. In speaking of the last clause of section 12 of article VIII. above referred to, Judge Dent at page 182 of this case says: “ This does not authorize the legislature to confer or impose on the circuit court any of its functions which are strictly legislative, but only such as are in their nature judicial and administrative, and which by the constitution it is forbidden longer to exercise but is required to direct by general law how and by whom they shall be discharged”; citing Shepherd v. Wheeling, 30 W. Va. 479, and other West Virginia cases.
These decisions limit the legislature in the delegation of such power to those which are properly described as administrative or quasi judicial. The doctrine stated by Judge Dent in In re Town of Union Mines, supra, that the legislature may not confer or impose upon the circuit court any of its functions which are strictly legislative, but only such as are in their nature judicial and administrative, is in accord with the weight of judicial opinion. Zanesville v. Zanesville, 64 Ohio 67, (52 L. R. A. 150); Norwalk, Street Railway Company's Appeal, 60 Conn. 567, (39 L. R. A. 794;) State v. Gerhardt (Ind.), 33 L. R. A. 313; In re Application for Incorporation of North Milwaukee, (Wis.), 33 L. R. A. 638; Forsyth v. Hammond, (Ind.), 30 L. R. A. 576; State ex rel Richards v. Cincinnati, (Ohio), 27 L. R. A. 737; Cooley Con. Dim. (7th Ed.) 137, 165, 173; 1 Suth. Stat. Const. (2nd Ed.) 5, 7, 9, 149, 446. Many other cases are cited in the notes and briefs of counsel in these cases. Reference to them will show with what nice distinction the general rule is applied to individual cases.
In the Norwalk Railway Company Case, supra, the public' acts of 1895, giving right of appeal from the decision of the council of any city to the Superior Court, was declared unconstitutional, on the ground that the Superior Court or the judge thereof could not exercise a power which is not judicial within the meaning of the constitution.
In Zanesville v. Zanesville, supra, the supreme Court of Ohio says: “It isa sound proposition that the distribution of the powers of the state, by the constitution, to the legislative, executive and judicial departments, operates, by *405implication, as an inhibition against the imposition upon either of those powers which distinctively belong to one of the other departments. ” While the court in this case sustained the constitutionality of the Ohio law, it did so on the ground that the statute of Ohio gave the legal right to the defendant telegraph company to occupy roads, streets and alleys, and provided that in event an agreement could not be effected with the municipal authorities an original suit might be brought by the telegraph company against the city or town to be affected, the legal rights of the parties tried, and orders made therein carrying those rights into effect. The distinction thus made is clearly stated in point 2 of the syllabus as follows: “ The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.”
The North Milwaukee Case, supra, went further perhaps than most cases have gone, in condemning as unconstitutional a statute empowering a court to determine whether the lands embraced in the petition for incorporating a town ought justly to be included therein, and whether the interest of the inhabitants will be promoted by the incorporation, and giving the court power to enlarge or diminish the boundaries as justice may require. The Wisconsin court says in reference to the statute there involved: “There are a number of the questions upon which the court is required to pass when making the preliminary ' order of incorporation under section 861 Rev. Stat. which are unquestionably pure questions of fact. Such questions 'as whether the survey is correct, whether the census is correct, whether the population is as large as the statute requires in proportion to the area, and whether the statutory requirements have been complied with, are all questions of fact; and no reason is perceived why the court may not properly be authorized to inquire into and determine these facts, nor why it may not order an election and appoint inspectors. Rut the other questions, upon which the court is required to pass are of a different nature, and we see no escape from the conclu*406sion that in passing upon and deciding ' them the circuit court determines legislative or political questions. These questions áre (1) whether the lands embraced in the petition ought justly to be included in the village, and (2) whether the interest of the inhabitants will be promoted by such in-, corporation. Furthermore, the provision authorizing the court to enlarge or diminish the boundaries of the village as justice may require seems to us equally the exercise of legislative power. * * Given all the facts which the legislature requires — the area, the population, the census, 'the map, the notices — and does the order calling an election follow? By ho means. The circuit court, in addition to determining these facts, must then say, whether in its judgment, it is best that there should be a village. This is no true question of fact. It is a mental conclusion, which may be based alone on the previous bias of the mind of the presiding judge as to the expediency of a small settlement assuming corporate powers and obligations. * * This amounts to nothing more nor less than the vesting in the circuit court of the powers of a third house of the legislature, which must be exercised in the affirmative before a village can exist.”
Many of the decisions referred to in the cases cited and in the briefs of counsel relate to the constitutionality of legislative acts imposing upon courts powers and duties in relation to enlarging boundaries of municipal corporations; and the weight of these authorities is, contrary to the Wisconsin case, that they constitute valid acts, being in their nature administrative and quasi judicial; but whenever such acts have gone, further and imposed on courts matters purely legislative, they are unconstitutional and void, and all proceedings thereunder of such legislative character ■ are inoperative.
I have found but one state where the contrary of this doctrine has been held; namely, the state of Mississippi. See Yazoo City v. Lightcap, 33 So. Rep. 949, 2 Mun. Corp. Cas. Anno. 198. This case, however, can hardly be regarded as authority against the proposition contended for. In that state 'the constitution provided that the legislature should pass general laws in which local and private interests should be provided for and protected, and under which cities and towns might be1 chartered and their charters *407amended and under which corporations might be created and organized and the rights of corporations altered, and that such laws should be subject to repeal and amendment. The general law of the state provided that persons desiring to be incorporated might prepare a charter, which should contain among other things the powers to be exercised, and providing that if approved by the governor and attorney-general the powers therein specified should be vested in the corporation, and also providing that such charters might be amended and renewed in like manner. This act was hold valid in the case cited and in a long line of decisions in that state; but that case did not involve the question' here of imposing legislative duties upon a court.
I am therefore of opinion that the act of 1877 could not and did not confer upon the circuit court power and authority to amend the charter- of cities, towns and villages, or the general law of the state, in the particular in which' the circuit court of Mason county by the proceedings in 1883 undertook to ame'nd the charter of the town of.Point Pleasant; that this act of the court was and is illegal and invalid, and did not confer upon the council of the town of Point Pleasant the sole and exclusive power to grant all licenses within the corporate limits of said town; and that the license granted to Joseph Varían and involved in this case was unauthorized and void.