
    
      The State, ex relatione John H. Heise vs. the Town Council of Columbia.
    
    An ordinance of the Town Council of Columbia, declaring that any retailer who shall sell or give any spirituous liquors to a slave without a written permit, shall forfeit his license, held void — the Council having no power to pass such an ordinance.
    The only penalties which the Town Council of Columbia can impose for violations of their ordinances, are fines not exceeding fifty dollars.
    A Town Council in granting a license to retail under the Act of 1849, must conform to the directions of the Act, and cannot impose conditions not therein prescribed.
    Tho Town Council of Columbia have no jurisdiction to adjudge a forfeiture.
    Several distinct fines, exceeding in the aggregate the extent of their jurisdiction, imposed by a Town Council, on the same person, for separate acts of retailing on different days, are not void because imposed at one sitting of the Council.
    
      Before O’Neall, J., at Columbia, Fall Term, 1852.
    This was a suggestion for a writ of prohibition. His Honor pronounced judgment as follows :
    O’Neall, J. In this case, the relator had a license from the Town Council to keep a tavern, and consequently to retail. In the course of its term, to wit, in July last, he was charged before the Town Council with selling spirits to a slave without the written permit of his owner — and upon an examination and trial before the Council, the relator was convicted, and his license adjudged to be forfeited. Subsequent to this, the relator continued to retail, and on being summoned before the Town Council, he was by them fined $19 50 for retailing on the 14th, 15th, 17th, 18th, 19th — and was subsequently fined for retailing on the 21st, 22nd, 23rd, 24th and 25th September, $19 50 for each day, making an aggregate of $97 50.
    By the 8th section of the Act of 1805, (see compilation of the ordinances of, and Acts relating to Columbia, p. 15,) the Town Council are, inter alia, authorized to establish such by-laws, as may tend to preserve the quiet, peace, safety and good order of the inhabitants.
    By the 2d and 5th section of the Act of 1819, (see idem., p. 26, 27,) it is provided that the Town Council may impose a fine or fines for the violation of such by-laws, provided no such fine shall exceed $50 ; but if any fine exceeds $20, the same is to be recovered in the Court of Common Pleas.
    By the 2nd and 3rd sections of the ordinance of the 16th of April, 1851, regulating the granting licenses to keep a tavern, (see compilation laws of Columbia, p. 74,) the person obtaining a license is required to observe the directions of the laws relating to slaves and free persons of color.
    By the 5th section it is ordained, that any person who shall violate the true intent and meaning of this ordinance, shall, together with his or her sureties, be severally fined in a sum not exceeding $50 for each and every offence; and if any person shall, after the passage of this ordinance, give, sell or deliver any spirituous liquors to a slave or free person of color, without express permission in writing from the owner, guardian, or person having charge of such slave or free person of color, such person or persons shall be fined not less than $5, nor more than $50, for each and every offence, and shall also forfeit his or her license.
    
    The 6th section makes the person retailing spirituous liquors without a license in the town of Columbia, liable to a fine not less than $5 nor more than $50.
    
      The Town Council having fined the relator as before set out, are proceeding by executions in the hands of their marshal to collect the same. The relator asks a writ of prohibition on the grounds : 1st. That the Act of the legislature against retailing, having fixed a penalty, the Town Council had no authority to impose another and further, fine. 2nd. That the Town Council had no such judicial power whereby they could declare a forfeiture. 3rd. That the aggregate of fines, $97 50, is more than they can collect otherwise than by action.
    1. That the by-laws of a corporation must be subordinate to, and not in conflict with the statute law, cannot be denied. I confess I don’t perceive how an ordinance imposing a fine for doing an act within the corporate limits, which the Legislature have declared to be unlawful, can be said to conflict with such law. Both can very well stand together, and both may be enforced, one as against a corporator, and the other against him, as a citizen. My great respect for any decision made by Judge Nott, has made me hesitate much on this point. Unquestionably the case of Schroeder vs. The City Council, 3 Brev. 533, did rule, that an ordinance imposing a fine for an offence, which had been by the Legislature subjected also to a fine, could not stand. On looking to that case, however, it appears that only three out of six Judges heard the case, and two gave the judgment, the third dissenting. Under such circumstances, as my judgment is clear against the decision, I am not bound to follow it. Upon this ground, therefore, I am against the prohibition.
    2. So, too, upon the second, I see no reason to grant the writ. For although, it may be that the Town Council had no right to pronounce the judgment of forfeiture, yet that cannot help the relator. For his license is, by the ordinance, forfeited from the fact of selling spirituous liquors to a slave without a permit from the owner, &c. No judgment of forfeiture is necessary — proof of the fact authorized the Council to treat the relator as retailing afterwards without a license.
    3. But upon the third ground, I am compelled to grant the prohibition as to the five last fines — $97 50. The fines imposed were imposed at one session, and in the aggregate amount to $97 50. This sum is more than the Council can collect otherwise than by action. The State vs. The Town Council of Moultrieville, Rice, 158, expresses my views of this matter. It is therefore ordered, that a writ of prohibition to restrain the collection of the fines imposed on the relator, amounting to $97 50, by the executions of the Town Council in the hands of their marshal, be granted.
    The relator appealed from so much of his Honors decision as refused a writ of prohibition to restrain further proceedings under the execution issued for the sum of $19 50, and moved this Court to reverse such part of said decision, and to order the issuing of the writ upon the grounds:
    1. Because a conviction of the offence of selling spirituous liquors to a slave, without a permit from his owner, does not, under the Acts of Assembly, work a forfeiture of license ; and no acts, whether legislative or judicial, of the Town Council of Columbia, did, in any manner, invalidate the relator's tavern license.
    
      2. Because the penalties annexed by the ordinance of the 16th of April, 1851, to the offence of selling spirituous liquors to a slave, without a permit from his owner, &c., and of retailing without license, are additional to the penalties imposed by Act of Assembly upon those offences respectively; and the ordinance is so far void.
    3. Because the penalties imposed by the 5th and 6th sections of the ordinance, are vague and uncertain : and the ordinance is so far void.
    4. Because the Town Council had no power to impose any penalties for violations of any ordinance, except penalties of a pecuniary character.
    5. Because the action of the Council was extra-judicial; and in conflict with the law of the land, and the rights of the relator.
    The respondent also appealed from so much of the decision of his Honor as granted a prohibition against the several executions issued by the Town Council for retailing by the relator, without a license, on the 21st, 22d, 23d, 24th and 25th days of September respectively, and moved this Court to reverse the same on the grounds :
    1. That each day’s retailing without a license by the relator, constituted a distinct offence, complete in itself, and not dependant upon any act of retailing previously or subsequently committed by the relator.
    2. That for each of said offences the relator was tried,separately — each case depending upon its own proof, having its own defence, conviction, sentence, judgment and execution; and the amount of the fine imposed in each case not exceeding twenty dollars, the Town Council of Columbia, under the powers granted by the Legislature, had the undoubted right to collect the same by their own execution.
    
      W. H. Talley, for relator.
    Consent of parties cannot give jurisdiction; Hurd vs. Tombes, 7 How. Miss. B,. 229 ; Bell vs. R. R., 4 Sm. and Marsh. 549; Leigh vs. Mason, 1 Scam. 249; Bents vs. Graves, 3 McC. 280. A by-law cannot give jurisdiction ; 2 Wheat. Sel. 1183; 1 Harris, 237; 3 Pen. and Watts, 259. Jurisdiction must be given in express terms; Bowers vs. Green, 1 Scam. 42; Bac. Ab. Tit. Courts and Their Jurisdiction, 102 ; Id. Tit. Statute, 393; 2 McC. 43. Therefore judicial power can be derived only from the express terms of the charter. Three Acts have given judicial power to the Town Council; (1) Act 1798, repealed by Act 1805; (2) Act 1805, § 8 (Comp. 15): this section limits the jurisdiction to $ 12 — the execution here is for $19 50: (3) Act of 1819, § 5 and 2. These sections give jurisdiction over all offences in violation of the valid bylaws of the corporation ; with these qualifications: (1) the fine must be imposed by by-law and must not exceed $20 : (2) the by-law must be valid. This fine $19 50 is not imposed by sect. 6 of the ordinance. The fine which that section imposes, differs from the fine for which this execution issued, in that it is uncertain, and cannot be ascertained, by sentence of the municipal court or otherwise. The 6th section is void by reason of the uncertainty of the penalty ; Ang. and A. on Corp., ch. 10, § 8; 8 Co. 127 b; Wilcock on Corp., 368 ; 3 Ala. 137. But if the 6th section be valid, there was no violation of it, for the relator had a license. That license was not invalidated by the previous proceedings for selling spirits to a slave, for their force and effect depend upon the validity of sect. 5 of the ordinance. That section, together with the 6th, is void — I. Because the oifences therein named are subjects proper for general legislation — as is evidenced by the fact of such legislation thereon ; and the power to pass the sections has not been conferred by the charter; 7 Stat. 142. Such power cannot be deduced from the power to grant licenses ; for the power of the Town Council in granting licenses is identical with that of- Commissioners of Roads ; A. A. 1849, § 13, 11 Stat. 560. It is not conferred by A. A. 1805, § 8, Comp. 15 ; 1 Cush. 493; 9 Miss. 92; 12 Johns. R. 122; ¡Schroeder vs. City Council, 2 Tread. 737; 8 Blackf. 341. Sections 5 and 6 cannot be sustained on the ground of contract; for (1) they undertake to confer judicial power; (2) they have at best only a constructive assent to support them ; (3) they are acts of penal legislation. But if the contract were admitted, it would be void. Wilcock, pt. 1, Tit. 349 ; 4 Shep. 121. If the contract were valid, the Town Council was a contracting party and could not determine whether there was a breach. II. Section 5 is void, because the penalty is not a sum certain. III. The designation in the charter of the mode of enforcing the by-laws, (by “.fine or fines,”) precludes the Council from adopting any other mode; Kirk vs. Nowill, 1 T. R. 118 ; Wilcock, Tit. 449; Ang. and A., ch. 10, § 8, 3; Com. Dig. Tit. By-Law, C. 7, note o; 2 Scam. 187; 5 Barb. Sup. Ct. 613 ; 1 Russ, on Cr. 49. The 2d sect. A.A. 1819, (Comp. 26, 7,) gives power to impose “ fine or fines ;” the 8th sect. A.A. 1805, “ fines and penalties.” Forfeiture of license is not a fine : neither is it a penalty within the meaning of the latter Act, for the penalty of a by-law must be pecuniary and certain. IY. A bylaw imposing as a penalty forfeiture of goods is void ; 1 T. R. 118; 2 Sid. 121; 1 Yent. 47; 2 Yent. 183; 8 Co. 127; 9 Wend. 571; 19 Wend. 42; Ang. and A., oh. 10, § 8; Wilcock, pt. 1, Tit. 10, 159, 222, 450, 445. A license possesses all the essential qualities of property. The Council had not the judicial power to vacate the license: 1. Because the value of the license was uncertain, the limits of the jurisdiction certain; and its value was beyond those limits. 2. The license was protected from forfeiture by any proceeding before the Town Council, by Art. 9, Sect. 2, Constitution of the State (1 Stat. 191). The license was a “privilege” in the nature of a right of property. As to the signification of the terms “judgment of his peers,” and “ the law of the land,” cited Zylstra's case, 1 Bay, 384; 1 Brev. 471; 1 McM. 502; 2 Sp. 767. The proceedings of the Town Council were not authorized by any statute, nor countenanced by the common law. Bac. Ab. Tit. Statute, 392. What is said in Rogers vs. Jones, l Wend. 237, is an obiter dictum. The Charleston cases do not apply, 'for the City Council of Charleston have express power to regulate the sale of spirituous liquors, and to enforce their by-laws in the municipal court. 7 Stat. 142.
    Arthur, contra, on respondent’s ground of appeal,
    cited and commented on State vs. Toton Council of Moultrieville, Rice, 158; 3 Rich. 174; 1 Rich. 190 ; 1 Bail. 1; Comp. 26. On relator’s grounds he cited 4 Strob. 385; 2 Bail. 186 ; 2 Bail. 164; 2 Mill, 214 ; Rogers vs. Jones, 1 Wend. 237; 2 N. and McC. 280, 475 ; 4 McC. 487 ; 2 McC. 465 ; City Council vs. Chur, 2 Rice Dig. 50; City Council vs. Johnston, MS. 1825; Comp. 8, 10, 14, 27 ; 3 Strob. 355 ; Jac. L. D. Forfeiture; 2 Bl. Com. 420 ; 2 Kent, 385; Jac. L. D. Franchise ; 3 Rich. 380 ; 4 Rich. 89 ; Ang. and A. 337; 2 Sp. 428 ; 17 Yes. 324; Wilcock, 143 ; 2 Bail. 165 ; 2 Bl. Com. 37 ; 1 Bay, 45; 5 Serg. and R. 510 ; Ang. and A. 364; 2 McM. 233.
    
      Gregg, same side,
    cited Act 1815, 7 Stat. 135 ; Act 1740, 7 Stat. 408.
    
      Moses, in reply.
    The whole question depends on the grant of power to the Town Council under its charter. A corporation has no legislative power, and is confined to its charter, from which it derives all its authority. The power to grant licenses is given to the Town not by the 8th sect, of the Act of 1805, but by the 9th, and this confers no higher right than is accorded by law to the Commissioners of Roads, who have the jurisdiction over licenses where it is not given to corporations. That the 8th sect, of the Act of 1805 was never considered as vesting unlimited jurisdiction, even by the Town Council, is evident from the fact, that from 1805 down to almost the present day, powers indispensable to a corporation of this kind have been asked for and granted — such as the regulation of the assize of bread, street work, auctions, &c. These have all been added to the Town by legislative grants since 1805. The whole extent of power is the right to punish for a violation of their bylaws by pecuniary fine, and where penalty is used it is in a synonimous sense. The term “penalty” always implies a money obligation. 2 Bouv. L. D. 308. A by-law must accord with the general laws of the State and the general principles of that law. Kyd on Corp. 107, 109. Now the general license Act of 1849 ordains two causes of forfeiture — neither of which is the cause alleged for forfeiture of Heise’s license, and corporations are required by the said Act of 1849 to conform to its requisitions. The grant is not from the Town Council, but from the Legislature — and the general law of the land prevents imposition of any forfeiture of the license, except as by that Act prescribed. A by-law cannot ordain that the goods, which are the subject of the offence, shall be forfeited, except power is given by statute. Clark vs. Tucker, 2 Vent. 183. But the ordinance undertakes to enforce the by-law by a mode different from that of fine, which the charter has provided to the exclusion of all other modes — and this it cannot do. 1 T. R. 125, 8 ; McRa vs. Cain, cited 1 McM. 328. The relator is not estopped by-implied consent. He claimed his license, not from the Council, but from the State. If it is put on the ground of contract: is one of the contracting parties competent to try the question, whether the grant has been violated ? He also cited 1 Lev. 17; 1 Mod. 676 ; Commonwealth vs. Turner, 1 Cush. 496.
   The opinion of the Court was delivered by

Frost, J.

The Town Council of Columbia had granted to the relator a tavern or retail license under the 'Act of 1849. By the 5th sec. of an Ordinance passed in 1851, it is provided that “ if any person shall give, sell or deliver any spirituous liquors to a slave or free person of color, without express permission in writing from the owner, guardian or person having charge of such slave or free person of color, such person shall be fined not less than five, nor more than fifty dollars for each and every such offence; and shall also forfeit his license.” The relator being charged with offending against this Ordinance, was summoned before the Town Council, and upon examination and trial before the Council, he was convicted and his license adjudged to be forfeited. By the 6th sec. of the same Ordinance, it is provided, that Any person who shall sell or retail any spirituous liquors within the corporate limits of Columbia, in any quantity less than three gallons, without having first obtained a license so to do, shall forfeit and pay, for each and every such offence, not less than five, nor more than fifty dollars.” After the relator’s license was adjudged to be forfeited, he was charged with retailing without a license on the 14th, 15th, 17th, 18th and 19th days of September; and for these offences was fined $19 50, by the Town Council. Subsequently, the ■relator was charged with having retailed, without license, on the 21st, 22d, 23d, 24th and 25th days of September. For each and every of these offences, the relator was summoned to appear and answer before the Town Council; and being by them convicted of the several offences, he was sentenced to pay a fine of $19 50 for each offence, making an aggregate of $97 50. The prohibition was granted against the collection of the fines, amounting, in the aggregate to $97 50 ; and was refused as to the fine for $19 50. From this judgment both parties have appealed.

The two controlling questions presented by the appeal are, first, Has the Town Council legislative power to impose the penalty -of forfeiture for a violation of one of its by-laws ? and secondly, Has the Town Council jurisdiction to adjudge the forfeiture-of a license 1 If, on either ground, the relator’s license was illegally forfeited, the prohibition must issue. If the relator’s license was not legally forfeited, then he did not retail without a license, and did not commit the several oifences for which he was fined.

By the Act of 1805, incorporating the Town of Columbia, theIntendant and Wardens are empowered to “ establish such bylaws as may tend to preserve the quiet, peace, safety and good order of the inhabitants thereof; and to fix and impose fines and penalties for the violation thereof; which may be recovered, in a summary way, by the Intendant and Wardens, or a majority of them“ provided the fines and penalties imposed do not exceed the sum of twelve dollars, for one and the same of-fence.” The second section of the A. A. 1819 repeals so much of the A. A. of 1805 as restrains the imposition of any greater fines by their by-laws than twelve dollarsand empowers the Intendant and Wardens to impose any fine or fines for the violation of any such rules, regulations or by-laws as they may think for the benefit and good government of the said town • provided no such fine shall, in any case, exceed the sum of fifty dollars.” It is further enacted by the fifth section, that “ when any fine, imposed by the said Intendant and Wardens, shall exceed twenty dollars, the same may be recovered in the Circuit Court for Richland District; and when such fines shall be under twenty dollars, they may be recovered before the Intend-ant and Wardens or any three of them.”

On the reading of these clauses of the Acts of Assembly, incorporating and amending the charter of the town of Columbia, it is too plain for argument, that, under the power which they confer, the Town Council can enforce obedience to their Ordinances only by fines, not exceeding fifty dollars. The Acts are either enabling or restraining Acts. If the Town Council derives from these Acts the power to punish, by penalties, of-fences against the by-laws, then, the nature and amount of the penalties which may be inflicted, are prescribed; and the Town Council can impose no other or greater penalties. If the Acts are not enabling, then they are restraining Acts; and any incidental power, which, before these Acts, may have been claimed by the Town Council to enforce its by-laws, by fines and forfeitures of any kind, has by the Acts been abridged ; and the Town Council must conform their Ordinances to the restrictions imposed.

The power conferred by these Acts is exhausted when, by the 5th section of the Ordinance of 1851, any person who sells or gives liquor to a slave is made subject to a fine of not less than five, nor more than fifty dollars. And yet, by the same section, the offender’s license to retail is also declared to be forfeited. If the plain terms of the Act are to govern, it is obvious that such additional forfeiture violates the charter; because it increases the penalty for the offence beyond the highest limit of the fine authorized by the charter. When the license is obtained it is worth fifty dollars and much more ; otherwise it would not be purchased ; and its forfeiture, at any time, inflicts an indefinite, and it may be, a very real loss on the retailer.

If the Town Council cannot derive the power to impose the penalty of forfeiture from the charter, they will, in vain, seek for it in the common law, as an incidental power of municipal corporations. Kirk vs. Nowill, 1 T. R. 118, is a leading case on the subject. It was an action-of trespass for taking and carrying away a number of forks. The defendant pleaded in justification an Act of Parliament, which incorporated the company of Cutlers, and a provision in the same Act, that no person, making cutlery, should omit to put steel in the edges, on pain of ten shillings for every offence, and the wares, so deceitfully made, “ to be seized and recovered by the Master and W ardens of the said Company,” to be employed for the poor of the company ; and that the company had made a by-law, by which the searchers ” of the company should seize and break up any such deceitful wares and sell the material for the benefit of the company; and that the defendants being duly appointed searchers, and empowered by the said by-law, did seize and destroy the forks in the declaration mentioned. Judgment was entered for the plaintiff. Lord Mansfield said, no such extraordinary power of making by-laws to incur a forfeiture appearing to have been conferred, it is impossible for the Court to say this by-law can be supported by the Act.” And Buller, J. — “ This by-law is bad, considered in every point of view. Taking it generally, as a by-law creating a forfeiture, the Act of Parliament not having given to the corporation power to make such a by-law, it is bad on that ground. The Act expressly negatives such a power; for the Act prescribes on what terms by-laws shall be enforced; namely by fine and amercement; therefore the corporation is precluded by the Act from inflicting any other kind of forfeiture.” In McRa vs. O’Cain, (MS ) cited in Kennedy vs. Sowden, (1 McM. 328,) a by-law of the Town Council of Camden, forfeiting any hog running at large, was adjudged to be void. It is unnecessary to multiply cases on this point when none to the contrary can be produced.

It has been argued that a distinction is to be made, between the forfeiture of a license and the forfeiture of goods and chattels. But a license is a thing of value. The oppression and hardship of a forfeiture does not depend on the nature, but the value of the thing forfeited. By this criterion, must the illegality of a forfeiture be adjudged. It may be better for the retailer to have his stock in trade forfeited than his license to retail.

It is also argued that the by-law does not create a forfeiture; but only regulates the retailing of spirituous liquors. It cannot be denied that the Town Council may lawfully adopt any regulations and impose any restraints on the retailing of spirituous liquors, which may be proper to prevent any nuisance or inconvenience. But the suppression of a trade is not a regulation. To be regulated, the trade must subsist. The Ordinance does not impose regulations or restraints on the relator’s trading, but prohibits it.

Cases have been cited of by-laws, not obligatory, which have been held to bind those who assent to them. These cases relate to corporations or joint stock companies, organized for some enterprise of profit; in which to some extent and in some particular transactions, the stockholders may be treated as copartners. But there is a manifest distinction between such companies and legislative corporations, established as a part of the government of the country. Such corporations exercise a delegated power of legislation over a limited territory and a portion of the citizens; and may be controlled or abolished by the legislature. White vs. The City Council of Charleston, 2 Hill, 571. The relation of the Town Council to the corporators of Columbia is that of governors and governed; having no analogy to a copartnership. Besides, in the cases cited, the members were charged with the obligations of a by-law, as a contract founded on their express consent. There is no such evidence in this case, to charge the relator with the penalty of the 5th section, by contract.

But it is contended that even if the Town Council cannot inflict a forfeiture of anything else, they may forfeit a license to retail. The ground taken is, that the license is granted by the Town Council, on the condition of forfeiture for any violation of the 5th section; and that the relator must be held to have accepted it on that condition ; and so, for any breach of the condition, the Town Council may revoke the license. If the license were, in fact, obtained from the grant of the Town Council, there would be some force in that argument. But it is not so obtained. The authority which grants the license must have the power to prohibit the selling of spirituous liquors. The license originates in such prohibition. The Town Council cannot prohibit the retailing of spirituous liquors in the town of Columbia, any more than the retailing of dry goods or groceries. It is the legislature which has prohibited all persons, not having obtained a license, to sell spirituous liquors; and it is from the legislative authority that the license is derived. Acts of the legislature regulate the sales of such as may take out a license, the term and price of the license, and the conditions on which it may be granted. A special authority is delegated by the State to municipal corporations and the commissioners of roads to grant licenses to persons who may apply for them, on their complying with the conditions prescribed. The Town Council cannot, any more than the commissioners of the roads, add to or alter the terms and conditions prescribed by the legislature. If there was any doubt on that subject, before, it has been removed by the Act of 1849. The 13th section enacts that, in the granting of licenses, every city or town corporate shall conform to the directions and be subject to the restrictions herein contained and provided for commissioners of roads in the several districts of the State.” It will not be affirmed that the commissioners of the roads can impose other conditions of forfeiture than such as the State has prescribed — nor can the Town Council. A license to retail spirituous liquors is a privilege granted by the State, on the payment of a valuable consideration to the State, by the grantee; for the price is paid to the State when it is paid to a town corporate or the commissioners of roads, by the order of the State. The Town Council cannot therefore forfeit it as a penalty, any more than other valuable eifects. If the Town Council can forfeit it for the offence of selling spirits to a slave, they may declare it forfeited for any other offence; and thus convert a license to retail into a recognizance of the retailer for the observance of all their by-laws.

There is another valid objection to the legality of the forfeiture of the relator’s license, from the want of jurisdiction of the Town Council to adjudge a forfeiture. By the charter their jurisdiction is expressly limited to the recovery of fines, not exceeding twenty dollars. In Zylstra vs. The Corp. of Charleston, 1 Bay, 383, Waties, J., says, “No power nor jurisdiction beyond what is expressly granted, can be claimed by a corporation, and for this, the authorities are too numerous to be cited.” In Pringle vs. Carter, 1 Hill, 55, Martin, J., says, When a tribunal, unknown to the common law, is established by statute, it is to be confined, strictly to the powers conferred.”

It is not necessary for the decision of this case, but it may be important to the Town Council, to notice the respondent’s ground of appeal. A majority of the Court are of opinion, that the proeeedings of the Town Council, when they imposed five fines on the relator for retailing on the 21st and subsequent days of September, were not irregular and illegal, because the fines were imposed at one sitting. Each act of retailing was a distinct offence, for each of which the relator was summoned to answer, and in each case a fine was imposed. The case of The State vs.- The Town Council of Moultrieville, does not conflict with this decision.

The motion to reverse the Circuit order, which' refused a prohibition against the fine for $19 50, is granted, and the respondent’s motion is dismissed.

Wabdlaw, WitheRS, Whitneb and Glover, JJ., concurred.

O’Neall, J. In this case, I do not concur; and adhere to my Circuit opinion.

Relator’s motion granted — Respondent’s dismissed.  