
    
      The City Council v. C. D. Ahrens.
    
    -An Ordinance of the City Council of Charleston, imposing a penalty upon re-' tail grocers for having spirituous liquors on their premises, without a license to retail the same, is not in derogation of the “ common rights” of the citizen, hut a legal restraint imposed on a few for the benefit of the many, and within the the Charter of the
    pass a any commerce on payment of a duty, or even without, no State can pass a law prohibiting the importation, yet as soon as the article ceases to be a part of the foreign commerce of the country, and passes into the hands of the retailer or consumer, it becomes a part of theproperty of the citizens of the State, and subject to the laws of the State; therefore an Ordinance of the City Council of Charleston, forbidding spirituous liquors, in the hands of the retailer or consumer, to be kept in certain places, is not an interference with the power of Congress to regulate trade.
    It is for ¡the Appeal Court, in which the cause is heard or opened, to determine whether there is a constitutional .question involved in the case.*
    
      Before the Recorder, in the City Court of Charleston, July, 1849
    His Honor makes the following report:
    This was an action of debt to recover the penalty imposed by the City Ordinance of 1st June, 1840, upon retail grocers, for having liquor on their premises, without a license to retail the same. The Ordinance is in the following words:
    “ Be it ordained, that no person or persons, now or hereafter, owning and keeping a retail grocery shop within the city, where meat, grain, fruit, provisions, or other articles, are exposed for sale, (not having a license from the City Council of Charleston, in force, to retail wine, malt, or spirituous liquors,) shall be permitted to keep in such shop, or in any room adjacent thereto, or on' the premises connected with such shop, any wine, malt, or spirituous liquors, in any quantity whatever: and if any such wine, malt, or spirituous liquors shall be found in any such shop, or in any inner room, adjacent thereto, or on the premises connected with such shop, the owner and keeper shall forfeit and pay, for every time when the same shall be so found, as aforesaid, a sum not exceeding three hundred dollars, nor less than fifty dollars, in addition to such fine as may be imposed by law, for retailing without a license.”
    The City Attorney introduced, on the part of the plaintiffs, the following testimony:
    * Vide rule 2d of the rules for the regulation of the Court of Errors, at the enci of this volume.
    
      
      G. Query, sworn.
    Witness is a police officer; the defendant keeps a retail grocery store at the corner of Queen and Mazyck-streets, in the City of Charleston. On the 20th of March last, witness went into the defendant’s shop ; saw no one in the front store : he then went into the back room, found defendant’s clerk there at a bar, upon which there were liquors of various kinds, gin or whiskey, also brandy: he tasted them — the bar-room opens on Queeu-st.; it is a back room connected with the front shop; the bar consists of a short counter; the clerk was behind the bar; a negro man was present, also a white man standing beside the clerk ; defind-ant is the reported owner of the shop; he keeps it; knows defendant to be the owner, from the fact of his having been fined as the owner for permitting negroes to loiter in the shop, and his having paid the fine.
    
      Cross-examined. — Cannot say if the bar-room is a separate building; don’t know of his own knowledge that defendant paid the money for the fine referred to ; the loitering case he speaks of occurred two days before the discovery of the liquor, (the ground of this suit;) defendant’s brother died about May last; on occasion of the loitering spoken of by witness, the defendant said he had no license; witness knows the fact that liquors are imported into Charleston.
    
      J C. Lawton, sworn.
    Is a police officer; has seen the defendant at the store corner of Queen and Mazyck-streets, apparently acting as the owner; witness understands him to be the owner; defendant paid witness a fine of ten dollars for negroes loitering in the same shop.
    
      Cross-examined. — The defendant’s brother formerly kept a shop at the corner of Savage street; he is now dead.
    
      W. H. Inglesby, sworn.
    Witness is City Treasurer; Chriss Ahrens had a license to retail liquors from 1st October, 1847, to 1st October, 1848; none subsequent; license-book produced by witness and referred to ; the license spoken of by witness is entered in the book in the name of Chriss Ahrens; it was for the shop corner of Queen and Mazyck-streets ; witness produces the bond and recognizauces given upon the granting of this license; (hey are signed in the name of C. Ahrens.
    
      F. Lance, sworn.
    Is Clerk of Council; produces a paper, printed application for license, No. 3; dated 22d September, 1848, signed C. P. Ahrens; the application was for a license beginning on 1st October, 1848, and ending 1st October, 1849 ; and was for No. 115, Queen-street; believes it was intended for the shop in rear of the front shop at the corner, and not for the front shop; the license was not granted; because Council had the alteration of the license law under advisement at the time, and subsequently, in January, 1849, repealed or abrogated, by Ordinance, all No. 3 licenses ; all applications for such licenses were suspended while the matter was before Council; Council fully determined not to grant any such licenses, and passed the Ordinance of January, 1849 ; the corner shop is connected with the one in the rear or next to it on Queen-street; .oue passes immediately from one into the other; there is no separation by yard between front and back shop; they communicate by a door from one to the other, as m one room leading by a door into another; witness referred to records of Council ; the proposed change of the law in regard to licenses was introduced and discussed as early as 14th November, 1848 ; second and third readings of the Bill on the 29th December, and finally passed in January, 1849.
    
      Cross-exambied. — Licenses No. 2, for public liquor rooms, have been applied for since March, and granted; a number of them, but not very many of this kind.
    
      In reply. — Chriss Ahrens applied for and obtained a license in November, 1847, for the store corner of Queen and Ma-zyck-streets.
    
      H. Cohen, sworn.
    Is the City Assessor; C. D. Ahrens made a return of capital invested in business on the 1st of January, 1849; return prod need; signed C. D. Ahrens, and sworn to by him; return states the sum of $400 invested in business at the corner of Queen and Mazyck-streets.
    
      F. Shuboe, sworn.
    Is a police officer; knows defendant; the defendant keeps a shop at S. W. corner of Queen and Mazyck-streets ; never heard that defendant had any other store; has often seen the defendant there; the grocery store is at the corner; on the west side or end there is a door leading from the front shop into the bar-room; nothing in the back room but liquor bar and liquots; don’t know what they were worth ; has seen the defendant in both stores appearing to have the management; defendant’s brother kept a shop at the corner of Savage and Broad-streefs.
    
      Cross-examined. — Witness cannot say positively that defendant is the owner; defendant paid fines to him for loitering in. July a year ago ; before his brother’s death he paid $>L0 in cash, and gave his note in his own name, signed C. D. Ahrens, for $10 balance, and paid it.
    Plaintiffs introduced the record of a case in the City Court, in the May term, 1849, in which a verdict had been rendered by the jury against the defendant in favor of the City Council for $>10. This appears to have been taken by consent of the defendant’s counsel at that time. The charge against the defendant was, that being the owner and keeper of a shop at the corner of Queen and Mazyck-streets, he had permitted a certain negro or negroes to loiter.
    
    Here the plaintiff closed.
    The defendant’s testimony was as follows;
    
      
      Peter Gowan, sworn.
    Witness owned the premises corner ,of Queen and Mazyck-streets in March last; Chriss Ahrens hired the premises from witness some years ago; he paid the rent, and continued to do so until his death ; since, the defendant has paid it.
    
      Cross-examined. — Chriss Ahrens hired the premises as one ; defendant has purchased it since.
    
      Abraham Tobias, sworn.
    Witness knew Chriss Ahrens ; he bought brandy at various times from witness; witness identifies a certain certificate produced, as showing the importation of the brandy referred to; witness knows the hand writing of the venders, Herckenwrath, Wragg & Co. Caldwell and others, showing receipts of bills for liquor bought by C. Ahrens from them ; some other certificates of importation were also exhibited and shown ; witness said that retail grocers sometimes unite and buy a large quantity of liquors, that is as much as a pipe, cask, or hogshead, and afterwards divide it among themselves in small parcels.
    
      Mr. Coppleman, sworn.
    He knew Chriss Ahrens ; he kept stove for three years at the corner of Queen and Mazyck-streets ; he died in,May last; he (Chriss Ahrens) bought liquors largely ; divided it between store in Savage-street and the one at the corner of Queen and Mazyck; the defendant was a clerk to his brother Chriss Ahrens.
    
      Cross-examined. — Witness keeps a store in New-street; Chriss Ahrens always kept at the corner of Savage-street; Chriss Ahrens always said the defendant should have the store corner of Queen and Mazyck-streets; before Chriss Ah-rens died, defendant had no other shop or place of business ; heard Chriss Ahrens say his brother should have the store; he said so several times before his death.
    Here defendant introduced the probate of the will of Chriss Ahrens, dated 8th May, 1849, and a certificate that the defendant had, at the same time, been qualified as executor.
    The will itself was afterwards introduced in evidence by the defendant, and read. Among other things contained in it, the testator bequeaths to his brother, the defendant, the store corner of Queen and Mazyck-streets.
    
      Coppleman, recalled.
    Said Chriss Ahrens always called his .brother, the defendant, “Diederich.”
    Here the testimony closed, and the case was argued by the counsel to the jury. The grounds taken by the defendant in his argument, were substantially the same as are now made the grounds of his appeal.
    Having reference to the issue made by the pleadings in this case, in my charge to the jury, I stated that they had simply to decide: First, whether the defendant was the owner and keeper of the grocery store at the corner of Queen and Mazyck-streets, on the 20th of March last. That this was a question 'entirely for them, and that if they were not satisfied by the proof, of the truth of this allegation, they should find for the defendant. Secondly, That if they to the conclusion that the defendant was the owner and keeper of the shop, the next inquiry would be, whether or not the proof satisfied them that liquor was found upon the premises, in violation of the City Ordinance of 1st June, 1840. This inquiry seemed to me to divide itself into two more specific questions. Assuming that liquor was found, which was not denied; first, was it in the grocery shop proper of the defendant, or, (in the language of the Ordinance,) in any inner room, or on the premises connected with such shop ? This, as a matter of fact, for the jury exclusively, was left entirely to them, upon the evideuce. The second presented the question, whether or not the defendant had a license to retail liquor, on the 20th of March, 1849.— As the defendant did not pretend to have had one at that time, but merely to have applied for one, I stated to the jury, upon this part of the case, that if, from the evidence, they believed the defendant to have applied in good faith for a renewal of the license to retail, (previously given to Chriss Ahrens for the same shop, and which did not expire until 1st October, 1848,) they might feel disposed to regard the possession of the liquor under such circumstances, as a venial, and not very gi'oss, though it might be a literal violation of the Ordinance, and they would be warranted in assessing the amount, (a matter committed entirely to their discretion, within the prescribed limits.) at the smallest sum called for by the Ordinance.
    It will be observed that the Ordinance passed in January, 1849, repealed or abrogated all licenses to retail called No. 3; or, in other words, rendered it impossible for one like the defendant, keeping a grocery store, to obtain a license to retail liquor to be drank on the premises. The liquor in this case was found in the possession of the defendant on the 20th of March, 1849. Looking at the repeal of licenses No. 3, in January, 1849, by public Ordinance, and the defendant’s having liquor on his premises on the 20th of March, 1849, so long after the passage of that law, in one point of view might not seem to entitle the defendant to so favorable a consideration as was suggested to the jury.
    But the same matter, piesented in another aspect, not distinctly suggested to the Court at the time, and not now made a specific ground of appeal, might furnish some reasons for hesitation, as to how far the City Ordinance of 1840 is now operative upon those who, at that time, and up to the passage of the Ordinance of January, 1849, might not only obtain, but were invited to apply for, a license; and the penalty upon which class of persons is imposed for having liquor on their premises, not having the license to retail., from, Council, which the law, then, offered to give; but which the Ordinance of January, 1849, abrogated, or rendered impossible to obtain.
    
    This embraces so much of the case as relates to the facts, covered by the first-and second grounds, taken in the defendant’s notice of appeal.
    With regard to my instructions to the jury upon the questions of law. made by the defendant’s counsel in his argument, and now.- substantiality repeated in his 3d, 4th, 5th, 6th, 7th, and 8th grounds of appeal, cajling in question the validity of the City Ordinance of January, 1840, I regarded all the^e questions as solemnly settled, or at least sufficiently so for-my government, and.that of the jury, in the case of the City v. Heisenbottle, (reported in 2d McMullan, 233.)
    That was a case arising under this' very Ordinance, and although its validity was assailed upon all the grounds, here taken, (except, perhaps, that of its violation of the Constitution of the United States, hereafter separately noticed,) it was pronounced bythe Court of Appeals to be an Act within the legislative authority delegated by the State to the City Council of Charlestpn, and as a municipal regulation not in conflict with any fundamental principle of our.system oí constitutional liberty and common law.
    
    This view of the iaw, as settled by the Court of Appeals in .this State, (though, ás contended for by the defendant’s counsel, still admitting of review in the; Court of Errors, as the ultimate arbiter and final authority in all strictly constitutional questions,) seemed to be for me an entirely sufficient and binding authority. I did not, therefore,.feel-myself called upon to vindicate the reasoning upon which the. Court appears to have founded its judgment in that case, nor could I regard the questions involved in it, and now renewed here, (for the present at least, and in the Courts of this State subordinate to the Court of Appeals in matters of law) as any longer open or unsettled. 1 appreciated the force of many of the arguments of the defendant’s'counsel, upon this branch of the case, and participated fully with him. in his admiration of those great landmarks in the' common law and Constitution of South Carolina, intended, in the wisdom and foresight of our fathers, for the safeguard and preservation of the individual liberty of the citizen, and as subordinate to, but consistently with, these great social landmarks, a wise, learned, but prudent and cautious legislation, • for the establishment of public peace, and the promotion of the public good.
    
    Although it seemed to me that if the validity of the Ordinance of the City Council of 1840, were now presented for the first time for adjudication, the consistency of such Ordinance with acknowledged legal principles, perhaps with con-, stitutional provisions, might not so easily be made to. appear yet as that point had been decided, neither the Court nor the jury had a light to indulge or act upon their private opinions, ( in disregard of the settled law of the land. That it was very clear, t.iat in passing upon, or being called upon to enforce, the acts of the law making power, no Court, much less the jury, could assume the province of determining whether they were wise or expedient merely, as that would invest the Court and jury with legislative powers, but that the true function of the Court was to decide whether the act was within the powers delegated to the Legislature, under the fundamental laws. If so, of course, there must be an end of judicial inquiry, and any further objection or opposition must be made, under our system, through the ballot box.
    The 5th ground taken by the defendant in his notice of appeal, and much relied on in the argument, was not taken in the case of the City v. Heissenbotlle. It is as follows: “Because, by the Constitution of the United States, brandy and gin, being lawful goods paying duty, any citizen is protected in holding the same.”
    I readily admitted, (of course,) that the Constitution of the United States, as the paramount law throughout the Union, must be preserved inviolate; and that any action, whether of the Legislature of a State, or of any other body or functionary, claiming under that authority, or under that of the General Government of the Union, or otherwise, must be consistent with and conformable to its provisions, to have the force of law.
    In reference to the question raised by the defendant’s counsel, it appeared to me very clear, upon genert.l principles, that while any legitimate article of commerce, permitted to be introduced into the. United States under the laws of Congress, for the regulation of commerce with foreign nations, or between the States respectively, was entitled to protection and immunity from State legislation, while it preserved its original character : that it was equally clear that when its original character, as an importation merely, was broken up, it was no longer free from State legislation and control. That when the original package became broken up and in the hands of retailers, it became subject, like all other property and persons, to the dominion and regulation of the sovereignty' of the State into which it was introduced. I had no doubt that the mere possession of a cask of brandy ox gin, in the hands of the original importer, could not be reached by any State or municipal regulation, and it appeared to me that this immunity would equally and necessarily protect it in the hands of the immediate, and perhaps any subsequent purchaser, while it remained unbroken; but that as soon as the original package was broken up for retail, the immunity ceased, the office of protection under the laws of Congress and the Constitution of the United States being, then, efE-ciently and thoroughly discharged. Decided cases to this effect were cited by the City Attorney, but neither upon the nor sjnc6) ilave i had an opportunity of examining them. The principle relied upon is, however, so apparent, that the authority of decided cases is scarcely necessary to sustain the proposition contended for.
    In the application of these principles to the facts of this case, it was left to the jury to determine how far the proof that the defendant had various liquors, as brandy and gin in decanters, in Ms bar room, (though it were conceded they might have been originally imported into Charleston by the brother of the defendant or any other person,) entitled him to the immunity from State and municipal legislation which the laws of Congress, under the Constitution of the United Stales, confer upon the importer or upon the imported article.
    
    The jury, under these instructions, found a verdict lor the plaintiffs for, $183 33.
    The defendant appealed:
    1st. Because the legal ownership of the premises was in Christopher Ahrens, deceased.
    2d. Becease the liquors having been bona fide bought with a view to continuing a lawful trade, might be legally retained.
    3d. Because the Ordinance upon which the declaration was founded, was unconstitutional in punishing an act which any citizen may, of common right, perform.
    4th. That the Ordinance was not within the competency of the City Legislature, is unnecessary and oppressive.
    5th. Because by the Constitution of the United States, brandy and gin being lawful goods, paying duty, any citizen is protected in holding the same.
    6th. Because the Ordinance is informal in not showing on its face that it was within the purview of any power delegated to the city.
    7th. Because the Ordinance punishes by a penalty, an act lawful in itself, and is in restraint of private right, and against the common law rights of the citizen.
    8th. Because it is in restraint of trade, and is unjust, and oppressive, and partial.
    
      B. F. Hunt,
    
    for the motion, proceeded to say, after reading the 2d section of the Ordinance of January 2d, 1849, which is in the following words, to wit:
    “Sec. 2. Every person desirous of obtaining a license No. 2, shall make application in the manner now provided in relation to License No. 3; and shall also state for what purpose the said license is desired, whether for a Hotel, Tavern, public eating house, or public liquor room; and no license shall be granted for keeping or selling, in any retail grocery 
      shop, wine, malt, or spirituous liquors, where the same are to be drunk or consumed at the place wheie sold.”
    This case presents (wo aspects, one of fact, the other constitutional law. The charge, and the only one involved in this case, is, that in March last, a city officer saw, in a room adjacent to the grocery store in Q,ueen-street, corner of Ma-zyck-street, a small quantity ot brandy and gin. This is the very head and front of the charge. There is no allegation of any act of retailing, or indeed of any act done in violation of any law, unless the fact of having a lawful article of merchandize in a man’s house, is an offence punishable by fine or penalty. But the City Council, in 1840, passed an Ordinance making it penal for any one who “ sold meats, fruits, groceries,” and the like, to keep on his premises or any adjacent one, liquor, wine, &c. in any quantity, under a penalty of not less than fifty or more than' three hundred dollars. — • At fiist view, this, in a free country, seems so clear and palpable a violation of the rights of private property as to shock all our notions. Why a man who retails innocent beef, pork, candles, and molasses, is to be mulcted in a penalty for having on his premises what halt his fellow-citizens not only keep, but use too, is passing strange. No Legislature of a State would venture such a partial law, so weak, so directly in opposition'to the rights of property and private liberty.— If it were liable to accident, like gunpowder, it might be guarded against, but then the law must apply to all, and not to a selected lew. There is no greater mistake than to suppose that the principles of sound legislation are not applicable to corporation bye-laws; that a City Legislature may do safely what a State Legislature invariably avoids. But the history of all inferior legislative bodies is full of petty regulations, monopolies, and restrictions, aimed at some obnoxious class of men, or containing some expedient, some cunning device, to arrest an alleged grievance, full of annoyance to the public. Even in Charleston, a citizen is liable everyday to break his shins over some Ordinance, that he never discovers until he is overhauled by a police officer. Under pre-tence of maintaining “order and good government,” the city Ordinances interfere with the most trifling matters. If a man catches fish, he must not sell them until they are brought to a public place and counted, and a toll exacted. All such things require officers, and officers require salaries. Then beef must be sold in one place, and persons who have no servants must go half a mile more, because we must have a market and clerks at a salary, and commissioners at a few dinners a year, stall hire and the like — all these cost money, and that money is all put on to the provisions, and is so much taken out of the people’s pockets, under the plea of maintaining “ order and good government,” when the people would much prefer to buy and sell just where and when they piease, under no other restraint than to keep the peace and commit do nuisance. Every four pence, exacted of the old vegelaye women, is so much added to the expense of a man’s table. But the idea is, that grocers, if they have liquor, will sell it to negroes; and to prevent that, they are not to keep it in any quantity. But selling liquor or trafficking with ne-groes at all, is a distinct'offence, and is punished as such, and it ought to Ire punished severely. I have never sanctioned or excused this offence. My negro is my property, and to give or sell him liquor is a trespass on my rights, as much so as to give my horse unwholesome fodder; it is actionable; and if every owner brought suit against everyone who corrupted his negro, by giving him or selling him ihe means of intoxication, it would stop the traffick. No one is more opposed to this interference with the rights of property, in this regard, than 1 am. I never have and never will sanction it — yet I will not violate the rights of private property, in any other respect, to prevent it. I do not admit the policy or the morality of “doing wrong, that good may come of it ;” I leave to city legislation the practical illustration of the anarchical maxim, that “theend justifies the means.” There are gieat fundamental principles of right and wrong which can never be violated with impunity. Any departure fiom abstract right, is a precedent which will, always be invoked to sanction injustice and oppression. That city legislation is generally injurious and oppressive, is admitted ; and that because the city law is passed, executed and adjudged by the same body. Formerly towns or buroughs were more restricted, but city regulations have gradually trenched upon the rights of the citizens, and imposed penalty for acts, in themselves, wholly innocent. Blackstone says: “ in all tyrannical government, the supreme magistry, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men, and whenever these two powers are united together, there can be no public liberty.” This is a graphic description of city government. The City Council make the laws; its constables or police become the informers, and its own Court adjudges the offender. But this is not so material as the fact, that its legislation is partial. One class of men are prohibited to do what is permitted to another, and of all classes retailers are singled out as peculiarly obnoxious. Now retaileis perform the most important function in commerce — they distribute to the consumer the articles of trade.
    In speaking of the working portions of society, Adam Smith says: “ Nothing can be more convenient for such a person, than to be able to purchase his subsistence from day to day, or even from hour to hour, as he wants it. He is, therefore, enabled to employ almost his whole stock as capí-tal. The piejudiees of some political writers, against shop-1 keepers and tradesmen, are altogether without foundation.” He adds: “So far is it thus from being necessary, either to tax ihem or restrict their numbers, that they can never be multiplied so as to hurt the public.” Such is the philosophy of city legislation, free trade; all being answerable only for their own offences. But until we have a City Legislature separated from a city executive, our laws will be partial experiments of unfledged law makers — palliatives and specifics — real quack remedies — such is the law prescribing venders of groceries from keeping — not selling — what most other citizens do keep and use also. It is legislating on suspicion ; and once permitted, there will be no end to the suspected individuals and partial laws.
    In this case the testimony establishes that the stock of liquor was legitimately on the premises; for two years a license was granted, which expired in October; a new application was made for the ensuing year; Council omitted to act on it, and in January made a law abolishing licenses to retail grocers. What was to be done ? was a valuable stock tobe emptied into the street? The city did not tender to buy it, but sends its officer, who informs of its existence on the piemises, where it was rightfully, and exacts a penalty. If that is not tyranical, every principle of law is delusive, and the only limit to corporate power, is the whims and fancy of this local Legislature.
    In Hobart’s Reports, published in 1641, it is ruled that the act of a subordinate corporation is void, “ because it is contra-rieut, repugnant and derogatory to the laws of the realm, and the aualogy of them.” That is good law now. To punish by penalty, not a crime, but the possibility of it, is contra-rieut to the laws of the realm, and “ the analogy of them.”
    I know no precedent in any State Legislature, and its absence is itself what is called “argumentum ab autkorilate negativa.” It is altogether adverse to the usage of legislator to itnoose penalties for innocent acts, because they may, if the party is so disposed, facilitate the commission of offen-ces ; as disarming the people, lest some one should shoot his neighbor. Now a penalty is different from a tax or license; one may take a license or not, as he pleases, and a tax, to be legal, must not distinguish individuals. But penalties are punishments, and should be reserved for offeuces committed. A penalty has well been called “a disseizin in law” — it ousts one of his property, and can only be lawfully exacted when imposed upon all who offend without distinction. See Angel &* Ames on Corporations, p. 182. In the case of Dunham v. The Trustees of Rochester, 5 Cowan’s Reports, 462, a similar law was declared unconstitutional, as all laws in restraint of trade.
    
      My next objection is, that as gin and brandy are lawful articles of trade, and pay duties to the United Stales, no city can make it penal to “keep them.” This avoids the question of retailing, and is not governed by the decisions on “ the three gallon law.” To keep what has paid duties must be lawful, or a city might destroy foreign commerce, by declaring it unlawful to keep any obnoxious article. Tire cause of temperance I have always fostered, as long as it was content with lawful and available means to enforce its practice.— But the instant it assumes to invade private rights and restrain private liberty, it becomes worse than intemperance itself. If the privacy of families is invaded, if the means of having one assailed by associated persecution, and most of all, if it interferes in either political or religions controversies, it strikes at the very foundations of the social compact, and will rouse the indignant opposition of all who value the free enjoyment of their rights and liberty. If the organization of temperance associations is broken and scattered to the winds, it will owe its ruin to that overreaching ambition which is the bane of all human success — which, in the flush of mctory, so often “over-leaps itself and falls on the other side.” Men’s habits as to eating, drinking or sleeping, are subjects of persuasion, the influence of example and reason, but not of force. The moment the Legislature pass a law that no wine or brandy shall be kept in the house of any man, worth less than a thousand dollars, because poor men are better without the tempter at hand, they seal the doom of the temperance cause; and yet, if all poor working men never saw liquor, they would not ruin their families and be kept poor. It would be a blessed law, and its praises would be chaunted in all the temperance halls of the land. It would be banishing the tempter from the hearths of the poor. It would save many a wife from a beating, many a child from want, but it would forever crush all temperance associations. The reaction, the return stroke, would be worse than the direct attempt to control the free action of men. No one appreciates more justly the legitimate influences of the temperance movement, and it is for that reason that I deprecate all infractions of piivate right, all efforts at rendering its associations instruments of political or electioneering schemes. My duty demands that I should, in this case, resist an infraction of the legal and constitutional privileges of a peisecuted c.lass of citizens, whom I will never aid to escape an actual violation of the law. During a life somewhat protracted, I have never abused the gifts of Providence by intemperance, but I think the causes of intemperance lie deeper, and its preventions require other appliances than inquisitorial laws, which annoy even the temperate themselves. It is a mistake to attempt to mend men’s habits by minute legislation. Want of employment tempts the wealthy, and want of reasonable recreation and amusement often induces the daily laborer to resort to the excitement of the bottle. In London the excessive labor of the week ces the fatigued and listless workman to spend his Sabbaths in the “gin palaces” of that metropolis. “Itis notthe multiplication of beer shops, but moral causes, that foster habits of intoxication.” So says the experience of learned philosophers — give the poor sufficient employment and recreations, and sobriety will be the result. Pride, self-respect, and the 'comforts of a happy home, will overcome the hankering after the excitement of liquor. But these matters belong to the benevolent who have assumed the honorable task of reform. All I deprecate is the abuse of those zealots whose objurgations are the portion of any one who, with a conscience as void of offence as their own, takes leave in any respect to doubt their infallibility.
    Porter, city attorney, contra,
    after discussing the facts of the case, said, that the main argument of the learned counsel, on the other side, had been directed against the legality of the Ordinance in question. This argument came rather late, for the Ordinance had already undergone the test of judicial examination. In the case of the Cityv.Heissenbottle, (2d McMullan, 233,) the Court of Appeals held it to be an exercise of legislative power within the competency of the City Council, looking upon it as one of that class of police regulations which, although they impose a restraint on the liberty of the citizen, must be submitted to as necessary to the security and well being of the community. The case was not referred to the Court of Errors, most probably because the Court did not regard it as involving a constitutional question. But although the argument of its being against common right was used on that occasion, the Law Court of Appeals sustained the Ordinance,- — and that judgment must stand as law until it has been modified or set aside.
    It is contended that the Ordinance is void because the laws of the United States allow the importation of spirituous liquors, and no State can forbid their being kept on the premises. The Acts of Congress allow the importation of spirits in casks of fifteen gallons ; and it is admitted that it would not be competent for the State or city to prohibit or lay a tax upon the sale of the original package by the importer. This is settled by the case of Brown v. State of Maryland, (12 Wheat, 419,) and this is the whole extent to which the protection of the laws of the United States goes. So long as the package is unbroken and remains in the hands of the importer, the right to sell it cannot be restrained or regulated by State authority. But the moment the import is broken up or passes out of the hands of the original importer, it becomes mingled with the other property oí the State, and is subject to its laws. This distinction seems to have been overlooked jjy ,¡)(? iearne(j counsel, but a reference to the License Cases, (5 Howard, 504,) will show that it rests upon the highest judicial authority. It is the retail trade that Council seeks to regulate ; and when they are taunted with not daring to touch the wholesale importers who would prove more dangerous adversaries than the petty retailers, die answer is, that the City Council have' no disposition to transcend the limits of their legitimate authority they know that they have no power to interfere with the importer, but they know equally well that they have the right to regulate the retail traffic of the city. This is matter of police, of internal regulation, and the legislation of Congress has and can have nothing to do with it. In relation to all such matters the authority of the Slate is complete, unqualified and conclusive. The License Cases just referred to, fully recognize this conservative power in the States. Self-preservation with a community, as wiih an individual, is the first great law, and all other considerations must bend to it. The Constitution and Laws of the United States were never intended to have any control over those municipal regulations which go to the protection of health, morals, life and property, and which lie at the very foundation of our social well-being. The States alone are competent to judge of the exigencies which call for such regulations — to measure the evil and apply the remedy.
    But it is said that this law, which prohibits retail grocers from keeping liquor upon their premises, is partial and unreasonable, and therefore void. The Ordinance of 1840 prohibits retail grocers from keeping spirituous liquors on their premises without a license; and the Ordinance of 1849 forbids the granting of any licenses for keeping or selling, in any retail grocery shop, wines, malt or spirituous liquors, when the same are to be drunk or consumed at the place where sold. The effect of these two Ordinances, taken together, is entirely to prohibit the keeping of spirituous liquors in any retail grocery shop, where liqours are to be drunk or consumed on the spot. Now the keeping of retail grocery shops, as well as the sale of aident spirits, are pursuits or occupations, and as such, are subject to regulation by the municipal authorities. No member of society has a tight to pursue any trade, calling or occupation, in a manner which injuriously affects society, or exposes it to serious danger. The interest of the many is paramount to the interest of the few. It is on this principle that the manufacture and sale of gunpowder are restricted. This is but one example — others might be mentioned were it deemed necessary. It is the end of society to protect, atid by far the greater portion of this protection consists in wholesome restraint and regulation.
    The object of these Ordinances is to prevent, if possible, the vending of spirituous liquors to slaves. That the evil aimed at is one of great magnitude, will hardly be denied in this community. The mode and manner of reaching evil and applying the remedy, must depend upon the public authorities, who have it in charge to provide for the security and welfare of the community. The City Council derives its authority from the State, and has no power beyond what the Slate can give and has given to it. The city charter authorizes Council to pass “every bye-law or regulation that shall appear to them requisite and necessary for the security, welfare, and convenience of the said city, or for preserving peace, order, and good government within the same.” This grant of power is sufficiently comprehensive for all municipal purposes. It is a 'mistake to say that the State itself has never exercised any such power as the one in question. On the contrary, the General Assembly has directed its legislation against these very evils here complained of, and in a foun very similar to that now under consideration. The Act of 1837 prohibits grocery shops and other shops, wherein spirituous liquors are vended, on Charleston Neck, from being kept open at any time on the Sabbath day, or on any other day after certain hours of the night; and it also prohibits the keepos of such shops from having blinds, screens, or other obstructions to the view of the front door. Here are restrictions upon this class of shops, that are not extended to others ; and that, too, confined to shops on Charleston Neck. This is certainly quite as “ partial” as the Ordinance of the city. The provision was not extended beyond the Neck, because the General Assembly was aware that the city, haviug a legislature of its own, could make provision for itself.
    It is for the municipal authorities to judge of the necessity and extent of the regulations called for by any evil existing in the community. This discretion must be lodged some where, and so far as relates to this city, the Legislature has lodged it in the City Council. The City Council look upon illicit traffic with slaves as a grievous mischief — and upon the sale of ardent spirits to them, as the main source of their moral and pecuniary depreciation. Many efforts have been made to arrest this evil, but in vain; and Council have, at last, been brought to the conclusion that the only effectual way to reach the mischief, and to put an end to it, is to prohibit the keeping of spirituous liquors in that class of shops to which slaves have the easiest access, and in which ardent spirits are sold to be druuk on the spot. The Legislature seems to have been desirous of investing Council with the amplest control over this matter. By an Act passed in 1821, the City Council were authorized to grant licenses under such regulations as they shall impose, or “ to refuse them at their discretion, to grocers oí the said city, selling at retailand as jf this were not enough, another Act was passed in 1823, whereby they were “ invested with full power to pass any Oidinance or Ordinances relative to the retailing of spiritu-0(JS |jqUOrs within the corporate limits of the City of Charleston, and to affix such penalties as may be necessary to prevent their violation.” In these grants of power, nothing seems to be wanting; and if the corporate authorities exercise this great discretion oppressively or unjustly, (as alleged to be the case here,) redress may be had on the part of those aggrieved, by an appeal to the justice of the people, through the ballot box; or if that fail, by an appeal to the Legislature of the State, which has reserved the power of revising and altering or repealing the bye-laws of the city.
    There is, then, no sufficient ground for impeaching the validity of the Ordinance upon which this suit is founded.— With its policy or its wisdom, neither the Council, the Court, nor the jury,’have any thing to do.' For that the City Council are responsible, and doubtless they are.willing to take upon- themselves all the responsibility that properly belongs to them. The object at which they have aimed — the protection-of the slave property of the city, against the most seductive of all temptations, and the most demoralizing and destructive of all influences, cannot fail to have the favor aud the sympathy of all sober-minded citizens. Whether they have been successful in devising an efficient remedy for a great and acknowledged grievance, time' will best determine. It is not with a view to “persecute” any class of men, but with a view to promote the greatest good'of the largest number, that they have put in force this prohibition of liquors-keeping against the petty retailers. A very small share of charity would suffice to give them credit for so much of good intention. At all events it is with entire confidence in the legal grounds upon which they stand, that the City Council submit their action to the judicial tribunals of the country.— The rest they are content to leave to the good sense and sound judgment of their fellow-citizens.
   Curia, per Evans, J.

This Court, of course, has nothing to do with the policy of the Ordinance. It may be very unjust, oppressive and partial, or it may be one of those wise measures of prevention, which experience has rendered necessary to circumvent the cunning of those who look more to their private gain than the interest of society. The questions, which it is proper for this Court to consider, are twofold ; first, of fact — and second, of law. As to the first, whether the defendant was the owner and keeper of the shop, that has been decided by the jury on evidence entirely satisfactory to this Court. The questions of law which seem to be embraced in the grounds of appeal, are:

1. That the Ordinance is in derogation of the common rights of the citizen.

2. That it is not within the powers delegated to the City Council.

3. That it.is in violation of the Constitution of the United States.

1 do not know that I exactly comprehend what is meant by the common rights of the citizen. I suppose it means rights which are common to all. That which is not prohibited may be lawfully done, but that which is prohibited by law, no one has a right to do. If there was no law interfering, the butcher might kill his beeves and his hogs in the street. If the butcher could do it any man might, and it might, therefore, be said to be a common right; but when the law prohibited it, it was no longer a common right.— Before the Ordinance of 1840, it was the common right of every citizen to keep spirituous liquors in his retail shop or any where else at his pleasure; but when it was found by experience that this was an easy method of violating the law prohibiting shop keepers front selling spirits to slaves and cab loafers about town; and an Ordinance was passed to piohibit such shop-keepers from keeping it in their shops and in secret back rooms adjoining, it was no longer a common right, but a legal restraint imposed on a few for the benefit of the many.

2. Is the Ordinance within the powers delegated to the Council by the charter of the city? If it were necessary to enter into that discussion, I think there would be no difficulty in making the affirmative very plain : but the question has been already decided in the case of The City Council v. Hieginbottle, where, the precise question was made and decided.

3. Is the Ordinance a violation of the Constitution of the United States ? But for what is said in the 4th ground of appeal, I should be at a loss to know what article of the Constitution of the United States is the one supposed to be violated. In that ground it is said that “ brandy and gin being lawful goods, paying duty, any citizen is protected in holding the same.”

By the Act of 1836, it is enacted “ that upon all constitutional questions arising out of the Constitution of this State or the United States, an appeal shall lie to the whole of the Judges assembled to hear such appeals.” The 8th section provides that the Judges so assembled shall form a Court for the correction of errors, and it shall be the duty of the said Judges to make all proper rules and regulations for the practice of the said Court of Errors, and for the mode of. bringing causes before them. As a Constitution is nothing more than an assertion of the great fundamental principles of government, the terms by which powers are granted or their exercise lestrained, musí be veiy general. It lollows from this that if every case which, in the opinion of the appellant’s attorney, involved some of the grants or restrictions of the Constitution, must go to the Court of Enors, there would be no end of the business of that Court. Accordingly when the case of Pell v. Ball was before the Court, it was found necessary to prescribe rules by which cases should be carried into that Court. The secoud rule provides that “ no cause shall be placed on the docket of the Court of Errors, unless by order of the Appeal Court in which the cause was heard or opened.” The rule, then, is, that the Appeal Court shall determine whether there is a constitutional question involved in the case. No one, I presume, will deny that the powers granted to Congress are exclusive, and that no State can pass laws to defeat or destroy the effect of any Act of Congress passed in pursuance of the Constitution. Congress has power to regulate commerce with foreign nations and between the States. If Congress should pass a law authorizing the importation of any article of commerce, on payment of a duty, or even without, no State can pass a.law prohibiting the importation. But this inhibition of the exercise of State sovereignty exists no longer than the article remains a part of the foreign commerce of the country. As soon as it passes into the-hands of the retailer or the consumer, it becomes a part of the property of the citizens of the Stale, and subject to the laws of the Slate. This doctrine is recognized in the case of Brown v. The State of Maryland, and is expressly declared in the recent cases decided by the unanimous opinion of the Supreme Court of the United States, involving the constitutionality of the laws of the States of Massachusetts, New Hampshire and Rhode Island on the subject of licenses to retailers of spirituous liquors. If, then, brandy and gin in the hands of the retailer or consumer, be subject to State legislation, I do not see how it can be supposed that the Ordinance forbidding it to be kept in certain places, can be said to be any interference with the power of Congress to regulate trade. As well might it be said that because gun powder was imported and subject to duty, the State laws which prohibit the vendors of it from keeping it in their stores was in violation of the Constitution of the United States. The motion is, therefore, dismissed on all the grounds. The case of The City Council v. Conig depends on the same principles, and must share the same fate.

Richardson, O’Neall, Wardlaw and Frost, JJ. con-purred.

Motion refused.  