
    Robinson vs. The Mayor and Aldermen of Franklin.
    The by-law of the town of Franklin, prohibiting all persons from retailing spirituous liquors within the limits of the corporation under the penalty of two hundred and fifty dollars, unless the person so desiring to retail spirituous liquors should obtain aliccnse from the corporationfor one year by the payment of one hundred dollars, was in direct conflict with the laws of the State, and therefore void.
    On the 18th day of May, 1836, the Mayor and Aldermen of the town of Franklin in the county of Williamson, instituted an action of debt against Thomas L. Robinson in the circuit court of said county, and at the July term, 1836, the plaintiffs filed their declaration in the following words:
    “The Mayor and Aldermen of the town of Franklin, by attorney, complain of Thomas L. Robinson, who is summoned to answer the said Mayor and Aldermen of the town of Franklin of a'plea that he render to them the sum of two hundred and fifty dollars, which he owes to and from them unjustly detains; for that whereas, by an act of the general assembly of the State of Tennessee, passed in the year 1815, ch. 3, entitled an act to incorporate the town of Franklin in the county of Williamson, it was among other things enacted: “Sec. 1. That the town of Franklin, in the county of Williamson, and the inhabitants thereof, are hereby constituted a body politic and corporate by the name of the Mayor and Aldermen of the town of Franklin, and shall have perpetual succession, &c. Sec. 2. That the corporation aforesaid shall have full power and authority to enact and pass such laws and ordinances necessary to preserve the health of the town, prevent and remove nuisances, &c. to imposé and appropriate fines, penalties and forfeitures for the breach of the by-laws or ordinances, to lay and collect taxes for the purpose of carrying the necessary ordinances into operation for the benefit of said town, to regulate and restrain tippling bouses, and pass all laws and ordinances necessary to carry the intent and meaning of this act into effect.”’ And the said Mayor and Aldermen of Franklin aver that thus having power and authority to pass laws and ordinances for.the purposes aforesaid, as specified in said act, on the twenty-first day of November, 1835, by virtue of said power on them so conferred, passed, among other the following law or ordinance: “Be it enacted by the May- or and Aldermen of the town of Franklin, That it shall be the duty of the owner of each tavern, grocery, confec-tionary or other house, or of any person or persons intending to retail spirituous liquors within the limits of said corporation, before^ he, she or they proceed to retail spirituous liquors within the> limits of said corporation as afore.said, to apply to the recorder and obtain a license from said corporation for the term of one year, and pay to the said recorder, for the use of the corporation, a tax of one hundred dollars, and the further sum of fifty cents for granting such license; which sum of one hundred dollars is hereby declared to be the tax on each retailer of spirituous liquors within the limits of said corporation for each and every year; and if any person or persons shall proceed to retail spirituous liquors without having first obtained license therefor as aforesaid, such person or persons so offending shall forfeit and pay the sum of two hundred and fifty dollars, to be recovered before any jurisdiction having cognizance thereof, in the name of the Mayor and Aldermen of said corporation, for the use of said corporation;” which last mentioned act has been duly published. And said plaintiffs aver that the said Robinson, being at the time of the passage and promulgation of said last mentioned act, and from thence up to the time of bringing this suit, the owner and occupier of a certain tavern in the town of Franklin, called the Franklin Inn, not regarding said law of said corporation nor his duty as a citizen of said corporation, on the -day of March, 183G, and at divers other times and days ■between the passage and promulgation of said law and the time of bringing this suit in Williamson county, in said tavern, within the corporate limits of the town of Franklin, did retail and sell spirituous liquors, for money and other valuable things, to divers good citizens of the State of Tennessee, and more especially to-, without having paid the one hundred dollars tax, &c. and without having obtained the license required by said law of said corporation. Where- ^ force 0f †[16 statute aforesaid, and by virtue of said ]aw gapj C0rp0raü0n made in obedience thereto, the said defendant has forfeited for his said offence or offences the sum of two hundred and fifty dollars; and thereby, and by force of said statute and said law of said corporation, an action hath accrued to said plaintiffs to demand and have of and from said defendant the said sum of two hundred and fifty dollars so forfeited as aforesaid; yet the said defendant, though often requested, hath not paid said sum of two hundred and fifty dollars above demanded, or any part thereof, but wholly fails and refuses to pay the same, to the damage of plaintiffs, fifty dollars.”
    To this declaration the defendants pleaded, first, nil debet; secondly, that he sold the spirits by leave and license of the Mayor and Aldermen. Issues were joined on both these pleas, and at the March term, 1838, they were submitted to a jury, who, upon the testimony introduced, returned a verdict for the penalty of two hundred and fifty dollars. A motion was then made to arrest the judgment of the court, but this was overruled and judgment rendered. The defendant obtained an appeal in the nature of a writ of error to the supreme court.
    
      Meigs and Marshall, for plaintiff in error.
    The power to regulate and restrain does not include the power to license, and in default of taking a license, to impose a penalty. Under this power the Mayor and Aldermen may prescribe rules and impose restrictions according to and within which the right to retail spirituous liquors allowed by law should be exercised; but they could not prohibit the retailing of spirits, or impose a penalty for retailing without their license. If a man have a county license under the acts of 1831, ch. 80, and 1S32, ch. 34, the Mayor and Aldermen might regulate and restrain him in using that license, but could not prohibit him from using such license without their license also. If he have no such license, that circumstance does not confer upon them a power which the words of their charter will not bear. Their license would not authorize him to retail spirits without a county license.
    The repeal of the tippling house laws by the act of 1837-8, ch. 120, is a pardon of all offences under the law repealed, unless there is a saving clause in the repealing act. The rule is that no man can be punished by the infliction of a fine or forfeiture unless the.law inflicting such fine or forfeiture is in existence at the time of the conviction and judgment. 2 Stark, 614, 619: Dwarris on Statutes, 32.
    
      Alexander, for defendants in error.
    • The act of the general assembly of 9th October, 1815, incorporating the inhabitants of the town of Franklin, conferred upon the Mayor and Aldermen of said corporation the power to regulate and restrain tippling houses. This is a substantive grant of power to the corporate authorities by the legislature, and is a portion of the laws of the land. The mode of regulating tippling houses within the limits of the corporation and the extent of the restraint to be imposed upon them was intrusted to the discretion and judgment of the corporate authorities. The fact that these establishments became in the towns, by their numbers and the disorderly conduct practised at them, great nuisances, rendered the vesting of this power in the corporation necessary to the quiet and good morals of the citizens.
    The same act conferred upon the Mayor and Aldermen the power “to lay and collect taxes for the purpose of carrying into effect the necessary measures for the benefit of said town. It also confers upon them the power “to impose fines, penalties and forfeitures for the breach of the by-laws and ordinances” of the corporation.
    It is evident that the taxing power and the power to impose fines, penalties and forfeitures are fit and appropriate instruments in the hands of the corporate authorities to regulate and restrain tippling houses. Taxes, fines and penalties are the instruments most commonly used by all corporations in the regulation and restraint of practices and avocations deemed detrimental to the interests of the body corporate, and are regarded by them as measures of a milder character than corporal punishment. The Mayor and Aldermen of laid a tax of one hundred dollars on all persons who wjsjie¿ to retaji spirituous liquors, and in the event that any one soj¿ iiqUors without the license procured by the payment of the hundred dollars, they imposed upon him a penalty of two hundred and fifty dollars, to be recovered for the use of the corporation. They had a right to tax privileges as well as persons and property, (see sections 28 and 29 of article 2 of the constitution,) as the legislature had, in pursuance of the constitution, vested in them the general authority to lay and collect taxes for the purpose of carrying into effect meas-, ures necessary for the benefit of the town. It is clear that the license was nothing more than the evidence that the tax levied by the corporation was paid. The tax did not, in fact, amount to a prohibition, as many paid the tax and retailed spirits. The legislature had made the right to retail spirituous liquors a privilege, and had taxed those who exercised the privilege. It cannot be said' that it was not necessary for the Mayor and Aldermen to lay and collect a tax of one hundred dollars on each person who exercised this privilege, for the purpose of carrying into effect public works; nor can it be said that such a tax was not necessary to restrain the increasing number of these establishments, and the vices and disorders attendant upon them. If they had the power to levy the tax, it follows that they had the right to enforce the payment of it by forfeiture. This course. is no less usual in the ordinances of all corporations than in general legislation. See act of 1799, ch. 10, sec. 3: INT. and 0.507.
    If this by-law of the corporation be repealed by the act of the 26th January, 1838, entitled “an act to repeal all laws licensing tippling houses,” still the penalty previously incurred by Robinson under and during the existence of that bylaw is not repealed or affected thereby. Bennett vs. The State, 2 Yerg. 472: 6 Bac, Ab. 372: Dwarris on Statutes, 675: 9 Law Lib.
   Green, J.

delivered the opinion of the court.

This is an action of debt to recover from the plaintiff' in error two hundred and fifty dollars, the penalty imposed by said corporation for a breach of its by-laws. The by-law question was passed the 19th day ox August, 1833, and as follows:

“Be it enacted by the Mayor and Aldermen of the town of Franklin, That it shall be the duty of the owner of each tavern, grocery, confectionary or other house, or any persoh or persons whatever intending to retail spirituous liquors within the limits of said corporation, before he, she or they proceed to retail spirituous liquors within the limitsp of said corporation as aforesaid, to apply to the recorder and obtain license from the said corporation for the term of one year, and pay to said recorder, for the use of said corporation, a tax of one hundred dollars, and the further sum of fifty cents for granting such license, which sum of one hundred dollars is hereby declared to be the tax on each retailer of spirituous liquors within the limits of said corporation for each and every year; and if any person or persons shall proceed to ■retail spirituous liquors without first having obtained a license therefor, as aforesaid, such person or persons so offending shall forfeit and pay the sum of two hundred and fifty dollars, tobe recovered before any jurisdiction having cognizance thereof, in the name of the Mayor and Aldermen of said corporation, for the use of said corporation.”

There was a verdict and judgment for the plaintiffs in the circuit court of Williamson county, and a motion in arrest of judgment, which was overruled. The defendant appealed in error to this court. The question for consideration now is as to the validity of the' by-law of the corporation. Á corporation can pass no by-law inconsistent with the constitution and laws of the State. Ang. and Ames on Corp. 182, 188: 2 Bac. Ab. 9.

At the time this ordinance passed, and up to the period of its violation by the plaintiff in error, the laws of the State permitted persons who might obtain license as prescribed by those laws to retail spirituous liquors; Consequently individuals who had obtained a license to retail spirituous liquors under the State law could not, by an act of the corporate authorities of Franklin, be prohibited from retailing those liquors within the limits of that town. But this by-law expressly prohibits a party from retailing spirituous liquors within the corporation under a heavy penalty, unless a license be first obtained from the corporation. It comes, therefore, in direct conflict with the law of the State, and hence is void. It makes no difference that Robinson had no license under the State laws. In that case the corporate license could not have conferred upon him the right to sell, in violation of the State law; and they had no power to impose a penalty upon a man for not obtaining a license to do that which it would have been illegal for him to do if he had obtained said license. This is not an ordinance imposing a fine for retailing without a license. Such a by-law would have been valid; it would not have contradicted, but would have been in accordance with the State law. This law imposes a penalty for selling without a corporation license; a thing they had no right to grant. If he had a license under the State law their license would confer no additional privilege, and if he had not, theirs would confer no privilege at all.

These views do not at all interfere with the right to tax, or to regulate and restrain tippling houses. Although a party may have a license under the State laws to sell, and therefore the act of selling is not a nuisance, yet he may be restrained and regulated in the exercise of this privilege so as to mitigate the evils of his trade.

We think there is error in the judgment, and therefore order that it be reversed and the judgment be arrested.  