
    The City Council of Charleston vs. Thomas N. Gadsden.
    Special verdict and veniretfacias de novo awarded by the Court of Appeals — the verdict finding no fact from which a legal conclusion as to the guilt of the defendant could be deduced.
    IN THE CITY OOÜBT OE CHARLESTON, JULY TERM, 1853.
    In this case the jury found the following special verdict:
    We find that the defendant, Thomas N. Gadsden, is a broker, residing'in tbe city of Charleston; and that bis place of business is at the corner of Chalmers and State streets. That the said Thomas N. Gadsden, as a part of his business, is engaged in the purchase and sale of negroes. That he provides shelter, clothing, and food, for such negroes as may be left with him for sale, when the owner or owners so desire, and not unless desired so to do by the owner or owners of such negroes; and that for such shelter, clothing, and food, when required, he charges a resonable price. That A. Nachmann did place with the said Thomas N. Gadsden a negro for sale — the expenses of sheltering, clothing, and feeding the said negro, while in charge of the said Thomas N. Gadsden, to be paid by the said A. Nachmann ; and after being for some time with the said Thomas N. Gadsden, the said negro was withdrawn. That the said Thomas N. Gadsden, at the time of the withdrawal of the said negro, presented the following statement of expenses :
    “Advertising, - - ... ¡$4 90
    Board 20 days, at 25 cents, - - 5 00
    Commissions 2£ per cent, on, $525, - 13 12
    $23 02
    Cryer’s fee,.1 00
    $24 02
    
      And to this statement is appended the following receipt: “ Received from A. Nachmann fifteen dollars in full for this bill, less than my dues, 15th April, 1853. T. N. Gadsden.” We further find that the City Council of Charleston, by its ordinance, ratified 20th Nov. 1839, ordained, that “it shall not be lawful for any person or persons to institute or establish any building, lot, or enclosure within the city as a house or place for the reception or accommodation of the slaves of other parties, for entertainment, safe keeping, correction, or sale. And if any person or persons shall institute or establish any such building, lot, or enclosure, for the purpose aforesaid ; or shall admit or receive into the same, any slave or slaves belonging to any person or persons, he or they herein offending, shall for each slave so admitted or received into such building, lot, or enclosure, for any purpose contrary to the provisions of this section, forfeit and pay the sum of five hundred dollars.” And if it shall be the opinion of the court, that the ordinance of the 20th November, 1839, is constitutional, and under the foregoing facts entitles the plaintiff to recover, we find for the plaintiff five hundred dollars : otherwise we find for the defendant. Oct. 23d, 1853. W. B. Smith, Foreman.
    His Iionor, the Recorder, made the following order:
    . “ Ordered in this case, upon the special verdict found by the jury, and hereto attached, that judgment be entered for the plaintiff for the sum of five hundred dollars, and costs. Oct. 28th, 1853. Wm. Rice, Recorder.”
    And the defendant appealed because:
    1. The ordinance of 20th November, 1839, or so much of it as is set forth in the special verdict, is unconstitutional.
    2. If constitutional, the verdict finds that the defendant only “ provides shelter, clothing, and food, for such negroes as are left with him for sale, when the owner or owners so desire; and not unless desired to do so, by the owner or owners of such negroes.” And this cannot be held illegal under the ordinance of the City Council, without extending its construction, and so qualifying the right, and restricting the mode of selling negroes, as to amount to its prohibition. And this would be beyond the powers belonging to the corporation of the city of Charleston.
    3. Because providing “shelter, clothing, and food,” for the negro slave of A. Nachman; the said slave having been by his owner placed with the defendant for sale; and the expense thereof to be paid by the owner; is a contract, necessary in most cases, where slaves are to be sold: consistent with that humanity which should be approved, and not forbidden in such cases: and sanctioned by the laws of the State, which consider slaves the subjects of sale, and legalize such contracts as are made for such sales.
    Magrath, for the motion.
    Porter, contra.
   The opinion of the Court was delivered by

M'üNRO J.

The only question we deem it necessary to consider in this case, is whether the facts set forth in the special verdict, sustain the legal conclusion the Recorder has deduced from them.

The language of the ordinance which the defendant is charged with having violated is as follows: “ That it shall not be lawful for any person or persons, to institute or establish any building, lot, or enclosure, within the city, as* a house, or place, for the reception, or accommodation of the slaves of other parties, for entertainment, safe keeping, correction or sale,” &c.

Let us now look at the special verdict, and see if the jury have found the defendant guilty of all or any of the prohibited acts enumerated in this municipal statute/

Instead, then, of its appearing in the special verdict, that the defendant has.been guilty of “establishing a building, lot, or enclosure, within the city, as a house or place for the reception or accommodation of the slaves of other parties, &c.,” all that we find is, “ that the said Thomas N. Gadsden is a broker, residing in the city of Charleston, and that his place of business is at the corner of Chalmers and State streets;” and instead of its further appearing that in the building, lot, or enclosure so erected or established by the' defendant in violation of the said ordinance, the said defendant has also been guilty of accommodating the slaves of other persons sent to him for safe keeping or sale, we merely'find “that the said Gadsden, as a part of his business is engaged in the purchase and sale of slaves, and provides shelter and clothing for such negroes as may be left with him for sale,” &c.; but whether he provides accommodation and entertainment, food and shelter, for said slaves, at his place of business, at the corner of Chalmers and State streets, at his place of residence, at one of the public hotels, or at the workhouse, no where appears upon the face of the verdict. >

This being the case then, it is manifest, that there is not a solitary act that has been found by the jury against the defendant, that can in any conceivable point of view, be construed into a violation of this ordinance.

Now, whatever may'have been the policy that dictated the ordinance in question — whether it was with the view of prohibiting the setting up of rival establishments to the work house — or, whether it was suggested by the danger that might result from congregating together in private establishments, large gangs of slaves, of vicious characters and depraved habits, and where they might be beyond the reach of municipal supervision, it is not our province to inquire: our province is confined exclusively to the application of the law, as we comprebend it, to tbe facts of tbe case, as they have been found by the jury. In tbe discharge of this duty, we are admonished by a salutary rule of law, that penal statutes are not to be enlarged by construction, but on the contrary, must receive a strict interpretation, so that no man .shall be held to incur a penalty, unless the act which subjects him to it, is clearly both within the spirit and the letter of the statute imposing it; for, as was remarked by Ch. J. Best, in the case of Fletcher v. Saunders, 3 Bingh. 58, “If this rule be violated, the fate of an accused person is decided by the arbitrary discretion of judges, and not by the express authority of the laws.”

Testing the Recorder’s judgment by this rule, we are of opinion, that it is not sustained by the facts as found by the special verdict, so that the motion to reverse it must be granted, and that a venire facias de novo do issue. And it is so ordered.

O’Neall, Wardlaw, Withees, Whxtner, and Gloyee, JJ., concurred.

Motion granted.  