Murphy v. State

delivered the opinion of the court.

The court should not have instructed the jury that Mississippi City was a town. The testimony showed that it was not incorporated, and whether it was a town or not, was a question of fact to be determined by the jury, and not by the court.

The word “ town,” as used in the statute which imposes a privilege tax on a private boarding-house in a town, does not refer exclusively to incorporated towns. In I. C. R. R. Co. v. Jordan, 63 Miss. 458, the terms town, city or village, in the statute regulating the speed of locomotives and cars, were construed to mean *48incorporated town, city or village, from the fact, that the statute authorized suit to be brought for its use by any town, city or village in which the statute was violated, to recover the penalty for its violation, and this implied that they should be incorporated and capable of suing. »

A town, in its popular sense, has been defined to be, a congregation of houses so reasonably near each other that the inhabitants thereof might be fairly said to dwell together. Reg. v. Cottle, 71 Eng. Com. Law (16 Q. B. 412); Elliott v. South Devon Railway Co., 2 Exch. R. 724; Directors of London Railway Co. v. Blackmore, L. R. 4 Eng. & Irish App. 610.

The meaning of the word “ town,” says Bishop, varies more or less with the connection and the subject. It may include cities and incorporated villages, or a mere congregation of dwelling-houses not incorporated. Bish. Stat. Law, § 299 a.

We think this is the sense in which the word is used in the statute in question, and that it may include an incorporated as well as an unincorporated town. • ^

Judgment reversed and a new trial awarded.