
    
      The City Council of Charleston vs. Moses Goldsmith.
    
    1. Under the ordinance of the City Council of Charleston, passed in 1835, the Commissioners of the market are “authorized, when they deem the same necessary, to vacate or discontinue the lease or hiring- of any of the stalls” of the market, and “whenever they shall see fit to declare any stall vacant,” &c.
    2. Under this ordinance an absolute discretion is given to them, limited only by the purpose for which their powers are conferred, the good of the city. The discretion thus given is free within its prescribed limits.
    3. If it should appear that that purpose was departed from, as if, for instance, upon the face of their acts it should appear that their discretion was exercised to wreak private malice, in opposition to their own views of the city’s good, their act would be void for fraud and corruption: but all presumptions must be made in favor of their good intentions, and no error of judgment upon a matter committed to their judgment without appeal, can make their act void, or give an appeal not before provided for.
    4. The errors of the Commissioners within their prescribed limits are to be corrected by appeals to their justice and good sense, and by change of the individuals who compose the body.
    5. The ordinance of 1835 being within the powers of the Council, and no corrupt purpose on the part of the Commissioners being shown, the act done by them, vacating or determining the lease of a stall in the market, ■ should have been decided below, for. the plaintiffs, as matter of law.
    
      Before the Recorder, in the City Court of Charleston, January Term, 1843.
    This was an action of debt brought by the plain tiffs against the defendant, to recover the amount of a penalty alleged to have been incurred by him, under an ordinance passed by the plaintiffs, on the 19th October, 1835, entitled “An ordinance to invest the commissioners of the markets with additional powers, and for other purposes.”
    By the second section of that ordinance, it is provided, “ that the commissioners of the markets are hereby authorized,, when they deem the same necessary, to vacate and determine the lease or hiring of any of the stalls in either of the public markets. And whenever the said commissioners shall see fit to declare any stall vacant, and to determine the lease thereof, notice in writing shall be given by one of the clerks of the markets, to the person hiring or leasing said stall, either personally, or by affixing said notice to the said stall, and thereupon the right <. r authority of such person or persons to use or occupy such stall, shall instantly cease; and if such person or persons, after such notice, shall attempt to sell or offer for sale at said stall, any article or articles whatever, the same shall be liable to be seized and forfeited, by the direction of three of the commissioners aforesaid; and each person so offending shall moreover be liable to the penalty of twenty dollars for each day he or they may violate this ordinance.”
    The three counts in the declaration severally alleged, that the defendant had been the lessee of a certain stall in the market of Charleston ; that the commissioners of the market, under the authority vested in them by the above in part recited ordinance, deemed it necessary to vacate and determine his lease; that after such determination he continued to occupy the stall, and to sell or offer for sale articles in it on different days specified, and thus had become liable for the penalty prescribed.
    The proceedings of the commissioners of the markets were briefly as follows. On the 6th of July, 1842, the clerk of the market reported the defendant and one Kennedy for fighting in the market, and the former for stabbing the latter with a butcher’s knife. It was then resolved that Goldsmith be expelled from the market, and his stall vacated.
    On the 10th of August, the resolution of the 6th ult. was rescinded, and it was resolved that Kennedy and Goldsmith be fined each $20, and be suspended from selling in the market for a month, and that their stalls be vacated during that time.
    The commissioners also resolved that no counsel from that time should be heard before the board. On the 24th of August, at a special meeting of the commissioners, a communication was received from Goldsmith, refusing to comply with the resolution of the 10th of that inst: whereupon it was resolved that suit be commenced against him for each day he had sold in the market in violation'of the said resolution under the ordinance of 1835, and that the clerk furnish the necessary evidence as to the days on which it had been violated. It was also resolved that the commissioners of the week do call to their aid some other commissioners of the markets, and proceed to seize any article or articles which defendant might have for sale in the stall declared to be vacant, agreeably to the ordinance of 1835; also that said commissioners be authorized to call upon the clerk of the market and city marshal to execute their order.
    On the 7th September following, it was resolved that the chairman of the board of commissioners obtain the opinion of the city attorney, as to the power of the commissioners to continue to seize defendant’s meat offered for sale in the market, and that the board determine at an adjourned meeting finally, as to the course to be pursued.
    At the adjourned meeting it was recommended, in the opinion of the city attorney, that no further seizure be made until the decision of a suit commenced by the defendant, which recommendation was adopted.
    The proof was that defendant was the lessee of two stalls on the 10th of August, 1842 — that the resolution of that date was served on him on the 11th of that instant— that he offeied meat in the market subsequently to the service of the resolution, which was seized on the 25th of August. The resolution of the 6th July was communicated to defendant on the 11th of that inst. The witness, wTho was the clerk of the market, served but the one resolution on Goldsmith, and did not notify him of that of the 24th of August.
    As to the entry of 7th September, there was no notice of any communication from Goldsmith.
    Since the 1st October, defendant had been restored, and had not tendered the rent since.
    The counsel for the city objected to evidence of the affray, and the objection was sustained by the court.
    Defendant before the commissioners denied their right to try an affray.
    The court charged the jury that the City Council, under the charter, had power to pass ordinances regulating the public markets of the City, and to appoint commissioners to execute and see to the execution of these ordinances.— That as the action was brought exclusively under the ordinance of 1835, the defendant must be found answerable under it, or not at all. That the Act of 1825, sec. 6 and 7, Ord. p. 27, did provide that if any person, (fee. shall assault, (fee. in the market, the person so offending shall be liable to a penalty; and by the 7th section, if the person so offending be a butcher, he, (fee. shall, at the discretion of a majority of the commissioners, be deprived of his stall; but that the ordinance of 1835 left the whole matter to the discretion of the commissioners. They are thereby “ authorized, when they deem the same necessary, to vacate,” (fee. Their discretion was to be the rule — the measure of necessity. The leaning of courts and juries was that persons in authority would exercise rightly the discretion vested in them, 'and considerable latitude would be given to that construction of this discretion. But still it was subject to investigation — and if at any time it was exercised capriciously or improperly, it would be controled.— The Act of 1825 did give the commissioners power, under certain circumstances, to vacate stalls for an affray by butchers in the market — but the affray must have been “in the market” — and it did not appear to the court that the commissioners would, under that ordinance, have the right to vacate a stall for an affray not at all in the market, and not within that jurisdiction. In this case no rules were produced, further than were furnished by the ordinances —no evidence was offered to the jury to show the character of the discretion used by the commissioners, or that it it even fell within the provisions of the ordinance of 1825, and that the affray was in the market. When the defendant was about to offer evidence of the affray, the plaintiff objected to it, and relied on the discretion given to the commissioners, and the court sustained the objection. The real question here was, had the commissioners in this case exercised a sound discretion in vacating the defendant’s stall — and the court expressly charged that a liberal construction in support of order, and the public convenience, ought to be given to this discretion. But whether the matter charged against the defendant, for which his stall was vacated, fell within the discretion of the commissioners, was a fact for the consideration of the jury, and to them it was left by the court. They found for the defendant.
    Plaintiffs moved for a new trial, on the following grounds:
    1. That the ordinance of 1835 vested the commissioners of the market with power, to be exercised at their own discretion unqualifiedly, to vacate and determine the lease or hiring of the stalls in the market, held by the defendant on 10th August, 1842 ; and that this ordinance is within the charter.
    2. That under the evidence, the discretion of the commissioners in this instance before the court, was exercised upon good and substantial reasons, and was also sustained by the ordinance of 1824, brought into view by the defendant.
    3. That, it is respectfully submitted, his honor the Recorder erred in charging the jury that the commissioners had no legal power to vacate the hiring of the stalls, under the ordinance of 1835, unless for an offence defined by some law, rule or regulation already provided, expressly designating the offence.
    4. That even under the rule laid down in the charge, from the examination of Mr. Furman, the chairman of the board, introduced and questioned by the defendant, it was sufficiently proved that the case investigated by the commissioners on 10th August, 1842, Was founded on an affray in which the defendant was concerned, in or near the market, with another butcher, in which one of the parties was stabbed, which of itself constituted a valid cause for the action of the commissioners in the premises, within the law as construed by the court, and was in fact the basis of their proceeding.
    5. That it was a part of the contract upon which the stalls were hired, that the lease or hiring could at any time be determined, at the will, or by the vote, of the commissioners of the market.
    6. That, the verdict was contrary to law and evidence.
    Eclchard, City Attorney, for the Appellant.
    
      B. F. Hunt, for Goldsmith.
    The main question is this. The commissioners of the market accused Goldsmith of violating an ordinance by fighting in the market; and instead of trying him by witnesses on oath, or hearing the accused by his counsel, they, in an arbitrary and contemptuous way, made a decree that he be punished by a suspension from selling in the market one month, and be fined twenty dollars, and the suit was brought to recover the penalty for not complying with this judgment. Mr. Goldsmith contends that the charge was not true — that by the Constitution he could not be deprived of a trial by jury and being heard by counsel, and when it was too clear that the judgment of the commissioners was arbitrary and illegal, the city attorney resorted to' an ordinance giving a discretion to the commissioners to vacate stalls at their pleasure. This was a shift to get rid of the illegal .conviction. Had the commissioners in fact for their mere pleasure vacated his lease, it might have availed. But they did not: they suspended his right as a punishment for an offence, and they convicted him without trial by witnesses on oath, and without trial by jury, and the true question is, can such conviction stand? To say that the suit was for holding over after vacating by the commissioners, is to subvert the truth. They did not declare his stall vacant, except as a punishment, and it is evasive now to shelter themselves under any other and distinct power.
    These inferior tribunals disposing of the business of a citizen, turning him out of employ arbitrarily, is against magna charta, and there is no urgent necessity to excuse their arbitrary act.
   Curia,per

Wardlaw, J.

The question now is not as to the seizure of the meat by the commissioners of the market, nor as to the fine declared or imposed by them; but only as to the penalty which the defendant is alleged to have incurred under the ordinance of 1835, by selling in the market after his stall had been declared vacant.

The Recorder held the discretion of the commissioners to be the rule, the measure of the necessity which required them to declare the stall vacant; yet he held that this discretion was subject to investigation; that it would be controlled, if at any time it was exercised capriciously or improperly ; and that it was a fact for the consideration of the jury, whether the matter charged against the defendant, for which his stall was vacated, fell within the discretion of the commissioners, the real question being, had the commissioners exercised a sound discretion 'l Under these views, it would seem that all the evidence offered by the defendant should have been received, to enable the jury wisely to decide the appeal from the commissioners’s decision to them. But such views are inconsistent with just notions of discretion. There is no discretion if there be a will to which it must conform; and if there be no will, there can be no appeal. If a discretionary power be given for a certain purpose, then the exercise of power for another purpose is an abuse; and if the improper purpose be apparent, the exercise is void. In such case the discretion is limited by the purpose, but still must be free within its prescribed limits.

Here the language of the ordinance is, that the commissioners are “ authorized, when they deem the same necessary, to vacate and discontinue the lease or hiring of any of the stalls,” and whenever they “shall see fit to declare any stall vacant,” &c. — An absolute discretion is given to them, limited only by the purpose for which their powers are conferred — the good of the city. If it should be apparent that that purpose was departed from, as if, for instance, upon the face of their acts it should appear that their discretion was exercised to wreak private malice, in opposition to their own views of the city’s good, their act would be void for fraud and corruption. But all presumptions must be made in favor of their good intentions, and no error of judgment upon a matter committed to their judgment without appeal, can make their act void, or give an appeal not before provided for.

Other persons may think that the commissioners have not done wisely — that the means they adopted were not best suited to attain the end proposed; but the right and responsibility of judgment are in them, and not in other persons. They are not bound to shew why “ they see fit to declare any stall vacant,” nor to explain nor justify their act in execution of the ordinance, any more than the Council to do the like as to complaints made for their passing the ordinance, or the Legislature as to complaints for chartering the city. The errors of all these bodies in their prescribed limits are to be corrected in like manner, by appeals to their justice and good sense, and by change of the individuals who compose them.

The only question, then, (if corrupt purpose in the commissioners cannot be sustained,) is whether the ordinance was within the powers of the Council constitutionally delegated-to it: and when it is considered that in cities, policy necessarily requires many restraints upon individual freedom, and that especially in relation to markets — objects of universal interest — numerous minute regulations prevail in all large cities, advantageous to both buyer and seller, although arbitrary, and sometimes vexatious, there can remain no doubt, that the summary exercise of severe powers here authorized, and committed to the commissioners of the markets, may be required by the public convenience, and is altogether consistent with the rights secured to the citizen. He also takes a lease of a stall— knows the tenure by which it is to be held — and when his stall may be declared vacant, has no more just right of complaint than another who is prohibited from selling because he has never leased a stall, or another whose commodities are seized because they were exposed at prohibited hours, or in prohibited places, or in a manner contrary to some of the prescribed regulations.

The hiring of a stall is in fact the purchase of a license to sell: the market and all the stalls in it, are vested in the city, and the government of them entrusted to the commissioners. In the discretion which they are authorized to exercise, it is not to be presumed that the commissioners will withdraw their license without at least believing that the good of the city will be thereby promoted, inasmuch as they individually, and all their fellow citizens for whom they act, have an interest in promoting the competition of sellers in the market; but to embarrass their summary determination of a case, or to subject it to revision, might deprive them of the power of preserving order, or enforcing regulations essential to the common interest of buyers and sellers, and to the peace and prosperity of the city.

The Recorder, then, having submitted to the jury as a question of fact, that which, as matter of law, should have been decided in favor of the plaintiffs, a new trial must be had.

O’Neall, Evans, Butler, and Frost, JJ. concurred.  