
    Mathew O’Driscoll against Maurice Viard.
    
      Charleston District,
    
    
      1801.
    
    Tavern licenses, and licenses for billiard tables, &c. and to made and issued out by the clerk’s of the courts of sessions in the different districts in the state, upon the recommendation of the commissioners of roads and highways, and not by the commissioners themselves, or o« ther person acting under their authority.
    
      Public Laws
    
    THIS was a qui tam action, which was submitted to the court on a special verdict.
    The verdict found substantially, that the defendant kept a tavern near a place called the Cypress, on the Orangeburgk road, in St. George’s Parish, Colleton district, under a license granted by the commissioners of the highways of the said parish, and not under the hand and seal of the clerk of the said district, in which the defendant resides ; and therefore submitted the point to the court, whether the license was legal or not; and then concluded in the usual manner, &c.
    Mr. Cheves, for the plaintiff,
    argued, that the tavern license in question was not agreeable to the general law upon that subject. That the second clause of the act of If 84, enacts, that two or more of the magistrates for the respective districts of the state, are authorized and required on every Easter Monday, and on the first Monday in August in every year, to grant certificates and recommendations to any persons in their respective districts, fit and qualified to keep a tavern, inn, ordinary, punch or alehouse, or billiard-table, or to retail strong liquors ; and the persons to whom such certificates and recommendations are so given, are required to produce the same to the clerk of the court of sessions of the district in which they reside, who is authorized and required to make out a license under his hand and seal for that purpose. And any person keeping such tavern, or inn, without such licence, shall pay and forfeit the sum of SQL sterling, one-half to any person who should inform and sue for the same, and the other half to the state.
    That although several acts of assembly were passed afterwards, regulating tavern licenses, yet the act of lf84 regulated this point till the year 1789.
    
      
      Public 344.
    See page 54 of the act of Decembers, 1799.
    The 53d clause-of the county court act in 1785, gave the power of granting tavern licenses, &c. to the judges of the county courts, who were also authorized to take bonds for the good behaviour of tavern-keepers, and generally to do all other matters incident to the said business. But this clause in the act of 1785, made no alteration in the districts where county courts had never been established. An act passed, in 1789, imposing atas on tavern-keepers for the use of the counties where county courts were established; and in the same year, another act passed, giving the power of granting tavern licenses^ &c. to the commissioners of. the roads and bridges, in the parishes and districts where no county courts were established, and the moneys arising therefrom was given for the repairs of roads and bridges within the same.
    That the act of 1799, after abolishing the county courts, declares, that the commissioners of the roads throughout the state, or a majority of them in their respective districts, should thereafter have full power and authority to order licenses to be granted to proper persons to keep taverns, &c. and to retail spirituous liquors’, and also to keep billiard-tables ; which licenses, when oi dered, should be granted and delivered out agreeably to law. He then contended, that although the act of 1789, took away the power from the magistrates of the districts, to recommend fit and proper persons to keep taverns, &c. and gave it to the commissioners of the roads, who were authorized by the latter act to grant them ; yet, the act of 1799 restored the former method of granting them by the clerks5 of courts of sessions, in the different districts, and only authorized the commissioners of the roads to recommend, or to make an order that the licenses should be made out to fit and proper persons, which was only giving them the same powers which the magistrates had by the act of 1784; for the words, to order licenses to be granted, cannot be construed to mean more than to recommend, or direct them to be granted, to fit and proper persons agreeably to law, upon the production of such recommendation. What law ? It cannot surely mean the law of 1789, because that act gave the commissionero the power of granting these licenses themselves, and therefore it was a needless and unnecessary act, to recommend persons to themselves, and of whose fitness they were themselves to judge and ultimately to determine. If it does not refer to that law, it must then mean some other law or act, and there is no other law upon the subject but the law of 1784, which prescribes the mode of granting tavern licenses by the clerks of the district courts ; to that act, then, the law of 1799 must refer, as the rule to be resorted to in granting these licenses ; and the reason of the thing speaks strongly in favour of such a construction, first, because the commissioners of the high roads have the most general and extensive acquaintance with persons living on the high roads, and are the best judges of proper stages on such roads, and where public houses are or ought to be kept; so far then in favour of their giving the necessary recommendations ; and, secondly, because the clerks’ offices in the different districts being public offices, and fixed and stationary, they are the fittest places for depositing the bonds and securities for the good behaviour of tavern-keepers, &c. and the clerks being men in the regular habits of business, they are the fittest persons to take and record all bonds and licenses; and, lastly, being in the centre of each district, they are most convenient for all persons to resort to in order to carry on prosecutions for neglects or misbehaviours; and the originals are always conveniently at hand within reach of the courts of justice, to support and maintain such prosecutions when necessary.
    Mr. Ward, for defendant,
    contended, that the act of 1789 virtually repealed the act of 1784, and transferred the right of recommending fit and proper persons for keeping taverns, &c. from the magistrates to the commissioners of the highways ; and in like manner, the power of granting licenses from the clerks of the courts of sessions, and united the whole power of judging of the characters of the persons who were to be licensed, and of granting the licenses j and diese powers were accordingly exercised by them for the space of. ten years, when the act of 1799 passed. In this latter act, the power of nomination and recommendation is still retained to the commissioners of the roads, but the power of making the licenses is still to be under their control, and subject to their orders and directions, and may well be construed to mean the clerk of their board, so as to give them the whole and sole direction and management of taverns and billiard-tables, &c. &c.
   The Judges expressed their concern, that the clause in the act of 1799 was so obscurely penned, that it was really difficult to tell what the true intent and meaning of the legislature was ; whether it was to restore the old method of granting tavern licenses by the clerks of the courts of sessions in the districts, as established by the act of 1784, or to retain it under the sole authority of the commissioners of the highways, as directed by the act of 1789 ; one thing, however, is certain, that their intention was to retain the power of nominating and recommending fit and proper persons for keeping public houses in the hands of the commissioner of the roads, instead of restoring it to the magistrates who formerly possessed it; but the difficulty was, in determining who were the persons to make out and issue these licenses to publicans of every description. It is to be observed, that the act of 1784 is a public law in aid of the revenue of the state ; it fixes the mode and manner of making out these licenses, and designates the clerks of the courts of general sessions of the peace, as the proper persons for that purpose. It also fixes and ascertains the fees to be paid upon every license, and likewise imposes a penalty for breach of the law; both the acts of 1789 and 1799 are silent on all those points. The judges, therefore, were of opinion, that it was best to make some fixed and certain law upon the subject the rule of their decision, rather than to speculate upon new principles, which were in their nature hypotheticalas that the clerk of the board of commissioners of highways was meant and intended as the proper persons, to make out tavern licenses, See. who were persons unknown in law, and altogether dependant on the wili of the commisioners of highways for their appointment and continuance in office, and who were removable at their pleasure ; they therefore thought it the safest, and best way, to make the law of 1784 the rule of their decision, which was the only general law in force which fully embraced this subject. They were, therefore, unanimously of opinion, that the clerks of the general sessions of the peace, in the different districts through the state, (in pursuance of the orders and recommendations of the commissioners of the high roads in each district,) were the proper persons to make out and issue all those licenses, and to receive and account for the fees, £kc. The clerks’ offices were public ones, where all the recommendations are to be filed, and all recognisances, and securities for good behaviour are to be taken and deposited, and all other documents are preserved, which go to the maintenance of peace and good order in the community, and where all prosecutions are carried on, and penalties received for breaches of the law.

The postea was therefore ordered to be delivered to the plaintiff, that judgment might be entered up in his favour.

Present, Grimke, Waties, Bay, Johnson, Rajisay and 'Trezevant.  