
    
      City Council of Charleston v. Orson V. Hollenback.
    
    The granting or refusing a license to retail spirituous liquors within the City of Charleston, is at the discretion of the City Council.
    When the verdict is contrary to the law and the evidence, the case will be sent back for a new trial.
    City Digest, ). 330, 48, §1.
    
      Before the Recorder, in the City Court, at Charleston, February Term, 1848.
    This was an action to recover the penalty of one hundred dollars, for retailing spirituous liquors without a license, imposed by the City Ordinance of April 19th, 1841.
    The ordinance is as follows: “ Be it ordained, that from and after the passing of this ordinance, if any person shall,: at any time, presume to keep a tavern, inn, ordinary, punch, or ale house, or retail any wine, brandy, gin, beer, cider, or any spirituous liquor or strong drink whatever, or sell any wines, malt or spirituous liquor, foreign or domestic, either in stores, shops, houses, or on board of any vessel at the wharves, in smaller quantities than the original pipe, hogshead, cask, barrel, box, case or package, in which the same was imported in this city, without first having obtained a license of one of the three classes under the City Ordinances, authorizing the keeping of such tavern, inn, ordinary, punch, or ale house, or the retailing such liquors, or selling any of the same in such prohibited quantities as aforesaid, from the said City Council, every such person or persons shall forfeit and pay, for each and every such oifence, the sum of one hundred dollars, one-half thereof for the use of the person who shall prosecute the offender to conviction, and the remainder to the use of the city. And in every such suit or prosecution, proof of the fact of selling or retailing, as aforesaid, in and upon the defendant’s premises, shall be taken as sufficient evidence of its having been done by him, or by his consent and direction ; and in all cases of selling contrary hereto, the act of the clerk or agent of any shop-keeper, shall be considered as the act of the shop-keeper himself, and done by his authority, unless the contrary shall clearly appear.”
    The evidence was as follows:
    
      C. Happoldt, sworn. — Said he knows the defendant; he keeps a bar-room under the Theatre, called the !! Shades.”— On the 11th of January last, witness bought from the defendant, at that place, a glass of port wine, and paid him 6J cents for it; defendant sold it to witness personally — defendant said to witness, he made no secret of it, that he sold openly, and intended to continue to sell liquor; knows nothing particularly against character of the defendant’s house,* or bar-room. The defendant had no license.
    
      W. H. Inglesby, City Treasurer, sworn. — Says the defendant had no license.
    
    Here the plaintiff closed.
    The following testimony was introduced by the defendant:
    
      A. J White, sworn. — Is one of the city aldermen; the usual application for a license was made by the defendant to the City Council; the usual securities were offered; the application was refused, on the ground of the place (the Thea-tre) being improper — besides, the fact of a murder was mentioned as having been some time before perpetrated there.— Licenses are granted to places in the neighborhood. The application on the part of the defendant was for a license to sell at the Theatre ; no objection was made to Hollenback.
    
      Cross-examined. — The objection was to the place and not to the person — liquor is sold next door; one objection to it was, that those who go into the pit of the Theatre, have necessarily to pass through the Shades.
    
      Col. F. Lance, sworn. — Is Clerk of Council; keeps a list of'applications for license. One, on the 13th of December, had been granted to the Rialto; one to Baker & Beard, at the comer of Market and Meeting-sts. Application had been made for the house opposite the Theatre. On the 3d of January, the application of defendant came up ; witness referred to the proceedings of Council, for the further history of it.
    
      Mr. Preston, sworn. — Is the lessee of the .Theatre; had underlet the “ Shades” to Hollenback & Carr, the latter part of December last. The defendant keeps his bar as orderly as such places are usually kept.
    
      Cross-examined. — The Theatre has a license as such, but is not charged for it. Licenses to retail at the Theatre, have never been refused before.
    Here the testimony closed, and the case was submitted to the jury by the Recorder. He remarked to them that evidence of the fact of retailing liquor without a license, was not denied, and it appeared to him, that the inquiry as to the propriety of -the act of Council, in refusing the defendant a license, was not -examinable by the Court or jury, m this prosecution at least. That the ordinance forbids the selling, without having first obtained a license — the defendant did sell, and had obtained no license. That if the defendant could shew, under the law, that he had a right to the license, and that upon the proper application it had been refused by Council, he should bring his action against them to redress the injury, or some process to compel them to grant him a license; but that it did not, in his judgment, furnish the slightest justification or excuse, for selling without a license. The jury must have taken a different view of the law, (as there was no shadow of dispute about the facts.) and found a verdict for the defendant.
    The City Council, through their attorney, appealed and moved for a new trial, on the grounds:
    1. Because it was clearly proved and admitted upon the trial, that the defendant had sold spirituous liquors without a license ; and the verdict of the jury was in direct opposition to the facts of the case, and to the law as laid down by the judge.
    2dly. Because the Council had the right to refuse the defendant a license ; and even if they had abused or transcended their proper discretion in so doing, that was no justification to the defendant, in selling without a license.
    
      W. D. Porter, City Attorney, for the motion.
    
      Pressly, contra.
   Richardson-, J.

delivered the opinion of the Court.

This case is decided by the decision of this Court in the case of the State v. Patrick O’Sullivan. In that case the defendant had been refused a license to retail spirituous liquors, by the commissioners of the roads, because they had resolved to grant no licenses whatever. But the defendant continuing to retail was convicted, and the Court dismissed his appeal, because the granting or refusing the license was at the discretion of the commissioners.

But the verdict in the present instance, would seem to call for explanatory observation. As to the law arising out of the City Ordinance, it is difficult to expound it more clearly than was done in the Judge’s charge; we cannot, therefore, but adopt his exposition as our own. It is equally difficult to imagine a case supported by clearer evidence, to convict the defendant.

The defendant, in fact, avows his retailing, past, present, and to come; and places his justification for disregarding the ordinance, upon the refusal of the City Council to grant a license to so good a man ; and at a place, so proper, that such a license had been formerly freely allowed. But this view seems blind to the inference, which is equally plain,— that assumptions and reasoning carry their own refutation.

For legally and civilly speaking, who is a good man? The answer is as familiar and established, as the question is old and important in orderly society. “ Vir. bonus est quis ?” “ Qui consulta p atrium, qui leges juraque servat.”

He is the good man who faithfully serves the constitution of his country, and obeys her laws and ordinances — not so the defendant. He would put the law openly at defiance. Away then goes the first branch of the bold argument, that led the jury astray. And the argument assumed from the supposed fitness of the place, follows after it. Because practical experience — and such experience is the best test, and ieast fallacious 0f all tests, in directing human judgment, had taught the City Council, that the Theatre is an improper place for retailing intoxicating liquors ; and they, accordingly, refused any license for such a place. I would ask what exercise of the discretionary power, belonging to the council, can be placed on a better footing of reason than such experience ? The defendant has certainly been very candid, and it is to be regretted that the council may, possibly, if another application be made, presume to add another reason for their refusal of a license to the man; who would make bis own will and personal interest supersede both their judicial discretion and the law. In no view, then, can be ascribed to the defence any merits beyond its candour in error and boldness of argument. Juries seldom go wrong in their verdicts, upon plain law and full evidence. But when they do so, this Court must refer back such cases to their reconsideration, without prejudice assuredly.

A new trial is, therefore, ordered.

The whole Court concurred.

Motion granted.  