
    M’Mullen against The City Council of Charleston.
    
    
      July 9, 1787.
    "Where tiie «.•ouit of ¶-ar-dens of the kúor. under-viefs man°of der'S'tíc/'o/’ the sute, and to commit 3dm foi a pe-nulty under such att, the confined™! ter tcftiere" eovery (ffines and peralties only, mdcr manees nade okhe'chirteit
    THE plaintiff was convicted by the court of wardens - ...... .. .. tor selling spirituous liquors without license, contrary to the. act °f assembly ; fined 50/. and committed to gaol for non-Payment* He was afterwards brought up before the court uPon a habeas corpus, and a motion was made for his discharge, upon the ground that the court of wardens had not . ... 1 . iurisdiction of this offence, and consequently no power to J r convict and imprison him.
    The counsel for the plaintiff, in this motion, mentioned, this was a new case, and it became, of course, necessary ÍO cons^er’ hrst, The nature of corporations and their limited jurisdictions, with some of the incidents attached to . them. 2. To take a view ox the corporation of the city of Charleston, and the powers of the court of wardens. And, 3. To observe upon the conviction, fine and imprisonment, and see how far they correspond with the powers assumed by them, and those of the common law.
    1. With respect to a corporation, it was argued, that it was an artificial body of men, or body politic, which had no natural rights, but such as were given it by the supreme power which gave it existence. 1 Bac. 499. That corporations were originally intended for cities and large towns, for the encouragement of their manufactures, trade and commerce, and for the regulation of their police and internal government; but were never calculated to superintend the general interests of the community, or to go farther than the domestic l-egulations of the city or town incorporated. Russ. Mod. Europe. Rob. Hist. Charles F. That it was j(to make use of the language of the law) the creature of tlie charter, which exists only in supposition or intendment of law. That this charter prescribes its utmost limits and hounds, beyond which it cannot pass. That all the privileges and powers it enjoys, are not rights, but bounties given by the supreme authority which gives the being or thing existence. Co. Lit. 130. 3 Mod. 13. 10 Co. 306. In England, there are a great variety of corporations, all differing irom their local circumstances, numbers, opulence, and places where they are created. Some are vested with large, others with very limited powers. But in general, there are some incidents common to them all, such as suing and being sued; having a common seal; having courts of limited and confined jurisdiction of certain matters mentioned in their charters. Some of these courts are courts of record, some not. Where no authority is given to fine and imprison, in that case, such inferior court is not a court of record: on the contrary, where there is a power to fine and imprison, it makes it a court of record. Co. Lit. 1 IT. 1 Bac. 559. One uniform rule, however, runs through the whole of them, viz. That nothing shall ever be intended to belong to any of them, or to be within their jurisdiction, but what is expressly given. Id. 562. Whenever, therefore, they proceed to take cognizance of things not cognizable bv them, or not expressly given them by charter, such proceedings are coram nonjudice, and void, and all persons acting under, or in obedience to their assumed authority, are trespassers. They cannot justify under such supposed jurisdiction. Salk. 201, 202. Holt 186. 2 Mod. 30.196. That illegal judgments of a superior court were only void-able by a writ of error ; but, of an inferior court, absolutely void. Salk. 674.
    
    2. That the 4th clause of the act incorporating the city of Charleston, passed in If83, ascertains its powers ; and, among other things, authorises the city council to make bylaws, and to affix and levy fines for the breach of them. The act of lf84, enlarging their powers, gives them authority to commit to close prison for the breach of their ordinances, which makes the court of wardens a court of record, and it enlarges their jurisdiction, in civil matters, to 20/.
    3,jys to the conviction, this was for the offence of selling spirituous liquors ; an offence neither cognizable by them, either by their charter, or the act of 1784, any more than homicide or manslaughter. It is not an offence against any of their by-laws ; therefore, their power to commit did not extendió this offence. It is an offence against the public revenue act of the state. This act is not one of the by-laws of the city corporation, but a public law, cognizable only by the supreme court throughout the state. The second clause of the revenue bill, passed in 1784, it is true, gives the license money, arising from licenses for taverns and billiard tables, within the limits of the city, to the corporation. It inflicts the fine of SOL for selling spirituous liquors, or keeping billiard tables; and it enacts that this fine shall be recovered in any court of record -within the state. Here dren is the power grasped at by the court of wardens — -any court of record in the state. And say the wardens, our court being one of record, we have the power to levy this fine or forfeiture. But this would be a very wrong construction ; for, by “ any court of record in the state” must be meant the supreme court. This is a forced construction; it can never apply to inferior jurisdictions, for nothing shall be intended to be -within their jurisdiction, but -what is expressly given. 1 Bac. S62. The law is clear upon this point, that wherever a statute prohibits a thing, and appoints that it shall be determined in any court of record, it can only be proceeded against in one of the supreme courts in Westminster, or court of oyer and terminer; because, these being the highest courts of record, shall be intended to be meant and spoken of, secundum excellentiam, and not inferior ones. 2 Hawk. 21. Salk. 178. 2 Hawk. 268. Gre-gorys case, in 6 Co. Rep. 19, 20. is also in point. All these cases shew, that this being an offence against a public revenue act, the fines can only be recovered in the supreme courts at Charleston, or in the circuit courts in the country districts. Besides, the sum here is 50/. and the power of the court of wardens, to sue and recover, is confined to 20/. but as this was not an offence against any of their bylaws, even were it under 20/. they had nothing to do with it. Lord Holt says, these trials in a summary way deprive the subject of the inestimable trial by jury, and therefore ought to be strictly watched. They are against Magna Charta. Holt’s Rep. 215. These summary jurisdictions, says Lord Mansfield, ought to be kept within strict bounds. 4 Burr. 2208. 2281.
   The Court,

after hearing the recorder in reply, and considering the whole of the arguments, were of opinion, that the proceedings in the court of wardens were irregular and void. Whereupon the plaintiff was discharged.

Present, Burke, Heyward, and Grimjce, Justices.  