
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1815.
    John Schroder, et al. v. The City Council of Charleston.
    A power to ascertain and define, does not include a power to regulate anew. Where the legislature had enacted that Charleston should be divided into thirteen wards, and by another act, the city council were authorised to ascertain and define those wards; instead of which, the city council divided the city into four wards; held, that this was illegal and void.
    The constitutional provisions of tenure, election, &c., apply to state judges, not to the judges of corporations.
    The city council of Charleston were, by an act of the assembly of 1796, authorised to increase the price of licences. They affixed a penalty of $100, to the offence of selling-without license. The penalty, by the act of assembly, for the same offence, was $50. Held, that the council had no right to impose the fine.
    A suggestion in this case was filed in the said court, praying, for the reasons therein contained, for the writ of prohibition, which the court refused to grant. From that decision, the said John Schro-der has appealed to the associate judges of the said State, on their meeting and sitting at Charleston. The suggestion is as follows: “ Be it remembered, that on this day, to wit, the 13th day of I'ebru. ary, in the year of our Lord 1809, before the associate judges of the said State, in the Court of Common Pleas now holding at Charleston, in atad for the district of Charleston, comes John Schro-der, by James Madan, his attorney, and gives the said court to understand and be ioformed, That whereas, the said John Schroder was impleaded, by virtue of a process or mandate, duly issued out and from the office of the clerk of the inferior court at Charleston aforesaid, in these words : “ The State of South Carolina, the city 0f Charleston, to Jervis Henry Stevens, Esq., sheriff of the inferior city court: You are hereby required to summon John Schroder, personally to be and appear before the city court, tobe holden at the Exchange at Charleston, on the first Monday in March next, to ' answer to a charge brought against him by the City Council of Charleston, for that he, the said John Schroder, on the 6th of February, in the year of our Lord 1808, at Charleston, in the said State, and within the jurisdiction of this court, did at his shop, No. -, Anson street, sell and retail spirituous liquors, and strong drink, in quantities less than three gallons, not being duly licensed, contrary to the form and effect of the ordinance of the said City Council of Charleston, ratified on the 18th day of March, A. D. 1806, entitled, an ordinance to revise the several ordinances, for granting licences to tavern keepers, and other retailers of spirituous liquors in the city of Charleston, and in such case made and provided ; it is therefore ordered, that the said John Schroder do appear at the time and place above mentioned, to answer to the aforesaid complaint; and that he do file his defence with the clerk of the said court, on or before the first day of the-; and it is further ordered, that the sheriff of the said court do have this mandate before the clerk of the said court, ten days previous to the next sitting thereof. Witness, Alexander Edwards, Esq., recorder of the said city, at Charleston, the 11th day of February, A. D. 1808, and in the 32d year of the independence of the United States of America. Signed, J. S. Cogdell, city attorney.” And which process or mandate was signed and sealed by William Lee, Esq., the clerk of the said court. Whereupon a verdict was afterwards given thereon, during the sitting of the said court, against the said John Schroder, for $100, and the costs of the said suit.
    And the said John Schroder, by his attorney aforesaid, further demonstrates and makes known to this honorable court, that in and by the first clause of the act, entitled an act to establish a court of inferior jurisdiction in the city of Charleston, &c., the said court was constituted, established, and authorised to be a court of record, possessing concurrent jurisdiction with the Court of Common Pleas, and Sessions, to the amount of $100 ; as is therein declared and limited; and which concurrent jurisdiction with the Court of Sessions, was to be confined entirely to such offences as might be against the by-laws of the corporation, &c.; but as no person could, at the time when the said inferior court was established, as aforesaid, be prosecuted in the Court of Sessions, for selling spirituous liquors without a licence, but through the medium of a grand jury; and as the said act, entitled an act to establish the court of inferior jurisdiction in' Charleston, &c., hath made no provision for the impannelling of a grand jury, as a constituent part of the said court, it is manifest that the'inferior City Court^ aforesaid, cannot, for that reason, and because the said defect in the said act of assembly cannot be made otherwise by intendment, have a concurrent jurisdiction with the said Court of Sessions; whereby the said verdict so as aforesaid given therein against him, the said John Schroder, is absolutely null and void ; and moreover, because it is declared by the sixth section of the ninth article of the constitution of this State, “ that the trial by jury as heretofore used,” that is to say, when the said constitution was established, “ should be inviolably preserved.” ■
    2d. And the said John Schroder further demonstrates to this honorable court, that in the recovery of the penalty mentioned in the above recited process or mandate, the City Council aforesaid are named as the party prosecuting the same; but says, that it is an established principle of law, that a corporation aggregate cannot sue as a common informer; for which reason the same process, or man. date, together with the verdict founded thereon as aforesaid, are null and void.
    3d. And the said John Schroder further demonstrates to this honorable court, that the power and authority to grant licenses for retailing spirituous liquors, was given to the City Council aforesaid, by the first clause of the act of the general assembly of the said State, entitled “ An act for levying and collecting certain duties and imposts, therein-mentioned, in aid of the public revenue,” &c., passed on the 26th March, 1784; the third clause whereof, among other things therein contained, enacts, that if any person, or per-, sons, not duly licensed, as therein before mentioned, shall, at any time, presume to retail any wine, rum, gin, brandy, beer, cider, punch, or spirituous drink whatever, in any quantity less than three gallons, he shall forfeit the sum of fifty pounds sterling, for every such offence, to be recovered by bill, plaint, or information, in any court of record in this State-, by any person who shall inform and sue for the same; one half thereof to be paid to the said informer, and the other half to the public treasury, for the use of the State, and which act of assembly has, from thenceforward been, and still remains unrepealed, and in full force and effect; that by the fourth clause of the act of the general assembly of the said State, entitled, “ An act to incorporate Charleston,” passed on the 13th of August, 1783, the City Council aforesaid, were restricted from making any by-law that should be repugnant to the law of the land ; and that 
      in and by the fourth clause of the before mentioned act of assembly, whereby the said Inferior Court of the city was established, it is enacted, that the jurisdiction oí the said court should only extend to the maintaining of all actions, suits, and prosecutions, for the recovery of any debt, or sum of money, &c., and for offences against the by-laws of the corporation of Charleston ; provided, that no verdict, or judgment of the said court, shall exceed one hundred dollars, in any one action, exclusive of costs and charges. Nevertheless, the City Council aforesaid, in order to draw the said offence, of selling spirituous liquors without a licence, within the jurisdiction of the Inferior City Court aforesaid, passed the city • ordinance aforesaid, which is mentioned above in the process recited, on which the1 prosecution in the said court was founded, and the verdict against him, the said John Schroder, was so as aforesaid obtained j and in order to-do so, the said City Council reduced the said penal, ty of £50, mentioned and contained in the act of Assembly aforesaid, tq the sum of $100, and instead of a moiety of the said penalty being appropriated to the use of the state, as] directed by the said act of the Assembly, the City Council aforesaid have appropriated the same to the use of the City of Charleston aforesaid, as by the said ordinance, when produced to this honourable court, will mai-festly appear, which the said John Schroder humbly insists is an usurped and unauthorized act by them done, and that the said ordinance and verdict thereon, as aforesaid obtained, are null and void.
    4. And the said John Schroder further demonstrates to this hon. orable court, that in and by the said act, entitled “ an act to incorporate Charleston,” it is enacted by the first clause thereof, that the said town shall be known hereafter by the name of the city of Charleston, and to be divided into thirteen wards, therein designated by geographical metes and bounds; that an act of the general assembly aforesaid, was passed on the 19th December, 1805, whereby it was enacted, that the intendant and wardens of the said city of Charleston’, should be thereby empowered to ascertain and define, either by commissioners, or any other means they may think expedient, the respective boundaries of the said wards; but what so relates to the respective boundaries of the said wards, the said John Schroder humbly insists can only be considered in a retrospective point of view ; that to ascertain can only be to clear up a matter that was in a doubtful or ambiguous state, and that to define, can only be applied to something that should have been already ascertained. But so it is that the said city Council, instead of complying with those self evident requisites, began to legislate, as if they possessed the sovereign power of doing so ; as if under the constitution of this State, there could be imperium in imperio; whereby they cut asunder the ligature that bound them as a body corporate, which will appear by the ordinance passed by them on the 31st of January, 1806, by setting different and other geographical metes and bounds to those wards, and whereby the election of intendant and wardens of the said city, has ever since then been conducted ; and the said John Schroder humbly insists, that those elections being null and void, there was no legitimate City Council of Charleston, to prosecute him for the supposed offence, for which he has been found guilty so as aforesaid, in the Inferior City Court aforesaid.
    5. And lastly, the said John Schroder brings to the recollection of this honorable Court, that by the first section of the first article of the constitution of this State, the legislative authority of this commonwealth is vested in a general assembly, consisting of a senate and house of representatives ; that by the 16th section of the same article, “ no bill or ordinance can have the force of law until read three times and on three several days in each house ; has had the great seal affixed to it; and has been signed in the senate house by the president of the Senate and speaker of the house of representatives and that it is declared by the second section of the ninth article of the said constitution, that “ no freeman of this State shall be deprived of his liberty or property, but by the law of the land.” Therefore, the said John Schroder, by his attorney aforesaid, humbly insists, that the penalty imposed on him in manner aforesaid, is neither authorized by the common law nor statute law of this State, and is consequently oppressive, illegal and unconstitutional. He therefore prays, that the Inferior City Court afore, said, may be prohibited by the judgment of this honorable Court from further proceedings therein ; and for that purpose, he prays for a writ of prohibition, &c.
    
    Madan, for the motion. Gadsden, contra.
    
   Nott, J.

The grounds on which it is attempted to support this motion, are : 1. That when the City Council was established there was an act of assembly of force in this State, which imposed a fine of £50 sterling on any person who should retail spirits without license, which penalty could not be recovered, but through the medium of a grand jury ; and, as the city has no grand jury, it could not take cognizance of the case. 2. That a corporation aggregate cannot sue as a common informer.

With regard to these two grounds, I will only observe that this Penalty may be recovered either by indictment or action of debt; and, admitting it to be an “ established principle of law,” as the suggestion states, that a corporation aggregate cannot sue as a common btformer, yet it is a principle of law as well established, that a corporation aggregate may sue and be sued in an action of debt, as well as an individual; the motion, therefore, cannot succeed on either.of these grounds.

3. It is contended that the act of assembly passed December, 1805, authorizing the City Council to ascertain and define the boundaries of the wards of the city, did not authorize them to lay off the wards in a different manner from what they were before ; and, therefore, the election of wardens according to the present di. vision of the city, and all the proceedings of the Council since, were null and void.

By the act of assembly passed the 13th day of August, 1783, the city of Charleston was divided into thirteen wards, which were designated by metes and bounds ; but not having been expressed with sufficient precision, the City Council were authorized by the act of 1805, to ascertain and define, either by commissioners or in any other manner they might think expedient, the respective boundaries of the said wards. The words “ ascertain and define” did not imply a power to alter or make new, but to make certain, some pre-existing fact, which was before doubtful. We must look to the act then, and see whether, from the contents, there is any thing from whence we can infer that the legislature intends to give them a more extensive signification.

The act is entitled, “ an act to ascertain and define in the preamble the words-are, “ to ascertain and adjustin the enacting clause, “ to ascertain and define the same words are then three times repeated, except that in the preamble, the word “ adjust” is introduced instead of “ define.”

The advocates for this power in the City Council, derive no aid from that substitute ; the word “ adjust” cannot be construed to extend the meaning of the word “ define on the contrary, it would seem rather to restrain than to extend its meaning. Suppose for instance, commissioners should be appointed to ascertain and define or adjust the respective boundaries of Great Britain, Spain and the United States ; would it be pretended that they were authorized to make new and arbitrary lines ? Would it not rather be understood to mean that they should ascertain by actual survey, and define by distinct and visible marks, lines already settled by treaty, but exis. ting only on paper. The case before us is exactly parallel. The legislature has settled the limits of the'wards ; but it is referred to the City Council to ascertain [and define them. If the city had never been laid off into, wards, I should have supposed that these words might have had the meaning now contended for, but under existing circumstances, I think the City Council have exceeded their powers.

Another ground taken is, that the constitution requires the judges of the superior and inferior courts to be appointed by the legislature, and commissioned by the governor ; whereas the judge bf the City Court is elected by the City Council, and commissioned by the intendant, and, therefore, his commission is void.

The words of the constitution which have relation to this subject, are, “ The judicial power shall be vested in such superior and inferior courts of law and equity, as the legislature shall from time to time direct and establish ; the judges of each shall hold their commissions during good behavior. Art. 3, sec. 1. The judges o-f the superior court shall be elected by joint ballot of both houses in the house of representatives. Art. 4, sec. 1. All commissions shall be in the name, and by the authority of the State of South Carolina, and be sealed with the seal of the State, and signed by the governor. Section the third.” «

These clauses of the constitution obviously relate to State officers, and not to officers of corporations. How far that part of the act, which confers on the City Court the power to try causes arising under the laws of the State, and not the by-laws of the City Council, may be considered constitutional, is a question which need not now be considered. I will, however, observe, that in my mind, it is a question of no little importance, and requires the early attention of those, who are interested in having it correctly decided. But I have no doubt, that the legislature has the power to establish corporations, and that they may confer on them the power of appointing judges, with full power to try all cases, arising under their own by-laws. This being a case of that description, was,unquestionably cognizable by the City Court, if the by-law itself is constitutional.

This brings me to the fourth and/last ground, to wit: that this is a public offence, created by an act of the legislature, for the commission of which a fine of fifty pounds is imposed; that it is, therefore, not cognizable by the City Council, and that they could not, by legislating upon it, bring it within the jurisdiction of the City Court.

By the act of 1784, Grimke, 341, it is enacted, that if any per-g0n, or persons, within this State, not duly licensed in manner above directed, shall presume to retail any wine, brandy, rum, &c., or any spirituous liquor, or strong drink whatever, he, she, or they, shall forfeit the sum of fifty pounds sterling, to be recovered in any court „ , , , . , , , . - J . of record m this State ; one half to be paid to the informer, ecc. The City Council have passed a by-law, imposing a penalty of one hundred dollars for the same offence. This by-law must either virtually repeal the act of the legislature, or it must impose an accumulative fine of one hundred dollars, on the penalty provided by the act of 1784. The first is too absurd to obtain any advocate; and the last, too extravagant to admit of argument, and has been abandoned by the counsel.

The whole case, then, at last resolves itself into a question, whether the penal clause of this act embraces the city of Charleston. The act contains three clauses only. By the first, it is enacted, that the price of licences in Charleston, shall be ten pounds per annum, and that they shall be granted by the City Council. By the second, it is enacted, that the price shall be three pounds in the other parts of the State, and the license be granted by the magistrates ; and the third, imposed a penalty of fifty pounds, on any person, or persons, within the State, who shall retail spirituous liquors, without being duly licensed, in the manner above directed that is to say, without being licensed by the City Council of Charleston, and by two magistrates, in the other parts of the State.

The words of this act are so plaip, that it is impossible to mistake them. There is no pretence for saying .the penalty does not extend to Charleston ; it extends to every person in the State. The most refined ingenuity cannot raise a doubt upon the subject. The act of 1796, 2 Faust, 101, authorises- the City Council to increase the price of licenses, at their discretion ; but it gives them no discretion, as to the penalty. The act of 1801, 2 Faust, 398, reduces the penalty to one hundred dollars; and although this may virtually repeal the act.of 1784, so far as regards the penalty, yet it must be recovered in the same way as before. No new or additional power is granted to the City Council; and the proviso which, it is contended, excepts the city of Charleston, merely reserves the powers at present granted by law, and now exercised by the corporation of Charleston. It does not legalize any act of the City Council, not before authorised by law.

It is also contended, that the power to grant licences to retail liquors, implies a power to impose a penalty on those who shall retail without; that when they are authorised to do an act, they must necessarily possess the means to carry that act into effect. This might be correct reasoning, if the legislature had not imposed a penalty, and furnished means, much more efficient than the Oily Council possessed, of enforcing it. I am aware of the necessity of giving extensive powers to these city corporations. There are many regulations of a local nature, in a large populous town, which are not of sufficient importance to the State, to attract the attention of the legislature, but which are, nevertheless, very important to the inhabitants of the town. All these fall within the peculiar province of the City Council; but they must not set about regulating the affairs of the State. It is an usurpation of the powers of the legislature, in which they are not to be indulged. The prohibition, therefore, ought not to be granted.

Bkevari», J., concurred. Bay, J., dissented.  