(2) The rule in pari materia does not go to the extent of controlling the language of a statute by the supposed policy of previous enactments, and cannot be resorted to where the language is plain and exact. Goodrich v. Russell, 42 N. Y. 177; Ingalls v. Cole, 47 Me. 530.

(3) The rule can only be invoked when the statutes relate to the same identical subject-matter. Sedg. St. & Const. Law, (2d Ed.) 210-212.

(4) These are different sets of laws, intended by the legislature to operate in different counties, and cannot be construed together.

Special give way to general laws when the legislature annexes to the latter a repealing clause abrogating all inconsistent local or special acts. Bank v. Bridges, 30 N. J. Law, 116; 4 Field's Lawyers' Briefs, 520; Sloan v. State, 8 Blackf. 3€1. A special act is repealed by a general act when that appears to have been the purpose of the legislature. State v. Severance, 55 Mo. 378; Eichels v. Evansville, S. R. Co., 78 Ind. 261, 41 Amer. Rep. 561.

It is within the province of the legislature to alter, amend, or repeal a city charter or any part thereof. Section 374, Civil Code; Cooley, Const. Lim. (5th Ed.) 230-232; City of St. Louis v. Allen, 13 Mo. 400.

TRIPP, C. J. This action is an appeal from the district court of Minnehaha county, from a decree granting an injunction against the sale of intoxicating liquor under the "local option law," and presents many of the questions passed upon in Territory v. O'Connor, ante, 397, (decided at this term of court.) As to the points so determined, the opinion in that case will govern in this. This case, however, presents this additional question, to-wit: The charter of the city of Sioux Falls gives to the council exclusive power to license and regulate the sale of intoxicating liquors within the city, and it is contended by the defendant that chapter 72 of the Laws of 1887, providing that the amendment therein made shall not apply to cities having the exclusive right to license, must be construed to so far modify the "local

option law" as to make it inoperative in cities having such power by their charters to grant exclusive license. The section relied upon reads as follows: "That section 1 of chapter 26, General Laws of 1879, be amended by adding thereto, 'and provided, further, that intoxicating liquors shall not be sold in any quantities in counties where no license is granted by the board of county commissioners, except as provided for in section thirteen of this chapter: provided, that nothing in this act shall in any manner interfere with or invalidate any license granted by any city council acting under the authority of a special charter or act granting exclusive authority in the matter of granting licenses for the sale of intoxicating liquors."" Chapter 72, § 1, Laws 1887.

The section 1, Laws 1879, which is thus amended, makes it unlawful to sell intoxicating liquors in less quantity than five gallons, without having obtained a license as thereinafter provided; and it is thereinafter provided that such application is to be made to the board of county commissioners, and such license "shall be granted by said board if they deem it expedient, and the applicant a proper person to engage in the same." The amendment was approved on the 15th day of February, 1887, and the "local option law" was approved March 11, 1887. Under the law of 1879, as amended by the act of February 15, 1887, the board of county commissioners were given control of licenses within their respective counties, except when, by statute already existing, a city, by special charter, had exclusive authority in the matter; and the object of the statute was to forbid and make unlawful the sale of intoxicating liquors when no license had been granted, to emphasize and make clearer the prohibition of the statute of 1879, in case of refusal to grant licenses by the proper authority.

The amendment is not an independent act. It was expressly made a part of the law of 1879, and, ipso facto, upon its passage, and from the date of its approval, it was an integral part of the law as amended. Later on, in the same session, and nearly a month thereafter, the legislature, recognizing the autonomy of

the law amended, and with a clear design to retain its main provisions in force, enacted the "local option law," so called. In some of its features it is directly in antagonism with the law of 1879. It takes absolutely away from the commissioners and council the power to issue license when the county has voted "against the sale," and in other ways, directly and by implication, repeals certain provisions of the former law. That the legislature had the power to expressly repeal any former enactments, whether of another or of the same session of the legislature, can hardly be controverted, and that it did repeal certain of the provisions of the law of 1879 by the enactment of the "local option law" must be admitted. Such being the case, the question is, how much did it repeal? The amendment made by chapter 72, having become a constituent part of the law of 1879, so far as the construction of the conflicting law is concerned, it stands the same as it would have stood if the entire act as amended had been passed at the same time; and in so far as the "local option law" conflicts therewith, it repeals it by necessary implication.

Sections 3 and 6, c. 70, Laws 1887, which provide: "Should a majority of the ballots cast at such an election be against the sale,' it shall be unlawful for the board of county commissioners of such county to issue or grant a license for the sale of intoxicating liquors in such county, or for any common council or officers of any incorporated town, city, or village in said county to grant or issue any license for the sale of such intoxicating. liquors. All acts, special or general, so far as they conflict with the provisions of this act, are hereby repealed, "are, as admitted, in direct conflict therewith, and must be construed as not only repealing so much of the law of 1879 as is in conflict with it, but as repealing so much of any existing city charter or other special law as would seem to give power to grant licenses contrary to the terms of the later law. This is clearly the meaning and intention of the law. It is true that there are some omissions which the legislature might well have

supplied, and which have furnished material for the ingenious argument of counsel; but the court cannot shut its eyes to the general scope and purpose of the law, which were to allow the locality to deal with this question of police in its own way. It is a power often allowed to be exercised by cities, and sometimes by quasi municipal corporations, such as counties and towns. The demand is always necessarily greater for the exercise of such power in the cities and thickly populated centers than in the more sparsely settled portions of the country. Recognizing such fact, it is hardly to be presumed that the legislature intended to allow the people of the country to prohibit an evil that rarely exists, while the people of the city, where such sales are generally made, were not to have any voice in its enforcement, and to be denied its application. Such a construction would render nugatory the effect of such act, and deny its application to the correction of the very evil, and to the class of persons, it was intended to reach. It was intended to apply to the cities. The legislature could not have overlooked the fact that by special charters nearly all the cities have been given exclusive control over the sale of intoxicating liquors; and the words, "all acts, special or general, so far as they conflict with the provisions of this act, are hereby repealed," must have been expressly intended to make the law applicable to the cities as well as to the country. What other special law was in conflict with it? The legislature must have been presumed to have had some law in mind; the words are not presumed to be meaningless; the answer is evident; the meaning of the law is too plain to admit of doubt.

It is true, the legislature might have provided for local option within the city as separate from the country, and have allowed the people of the city to regulate such matters in their own way, without dictation from those living without its limits; but this argument is one to be made to the legislature, not to the courts. We have nothing to do with the wisdom or the propriety of the act drawn in question. We have sufficient to occupy our time in construing and determining the legality of leg

islation. We have no doubt as to the construction or the legality of this act, and the judgment of the lower court is affirmed. All the justices concur, except THOMAS, J., not voting.

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PIELKE, Respondent, v. CHICAGO, M. & ST. P. Ry. Co., Appellant.

1. Appeal-Review-Weight and Sufficiency of Evidence.

Though much suspicion is thrown upon the testimony of a witness by the circumstances and the testimony of others of equal means of information, still, where he was not impeached, swore positively to the facts, and no motive for false swearing appears, an appellate court will not disturb the verdict founded on his testimony when a new trial, on the ground of the insufficiency of the evidence to support the verdict, has been denied by the trial court.

2. Railroads-Continuous Fire-Negligence-Proximate Cause -Trial-Instructions.

In an action against a railroad company for damages caused by a fire seen for the first time in the afternoon, on an issue of its connection with one claimed to have been negligently set out in the morning, the court said to the jury: "Unless you find the fire in the morning has a connection with the afternoon fire, the plaintiff expects a verdict for the defendant:" and this being the only reference in the charge to the proximate cause of the injury, held misleading, and susceptible of an erroneous construction.

3. Same-New Trial-Appeal.

While the mere omission to instruct on a given proposition, there being no request therefor, is not error, still, if the appellate court can see the jury was misled by the instructions given, it will grant a new trial.

4. Same Sufficiency of Evidence.

Where the evidence was that a fire set out through alleged negligence in the morning was believed to have been extinguished, and it appeared the damage was done by a fire seen for the first time in the afternoon, a strong wind having arisen in the mean time, and with its aid the latter fire spread rapidly in the direction of the plaintiff's property; and the only evidence of connection between the two fires was mere opinion, and the circumstances were that it was as reasonable to suppose the extension of the afternoon fire to that of the morning as the one of the morning to the afternoon, the appellate court was inclined to hold that the morning fire was not the proximate cause of the injury; but held, if the