27 N.C. 315 | N.C. | 1844
The relator, Caldwell A. Gillespie, obtained a writ of mandamus, directed to the justices of the court of pleas and quarter sessions for Guilford County, and commanding them to make an order that he should receive from the sheriff of that county a license to retail spirituous liquors by the small measure at his shop in the town of Greensboro, in that county.
The writ was granted on the affidavit of Gillespie, in which he stated that he was a free white inhabitant in Greensboro, of good moral character, and, as such, had been licensed by the county court for (316) several years next preceding February Term, 1844, to retail, and that he had during that period retailed spirituous liquors at a shop in Greensboro; that at February term aforesaid the justices of the court, a majority of them being present, resolved that the retailing of spirituous liquors was a practice injurious to good morals and against the public policy, and, therefore, that they would not pass an order for a license to any person. He further stated that at May term following he moved the said court, more than seven justices being present, to grant him an order for a license to retail spirituous liquors at his shop as aforesaid, and in support of his motion produced more than two credible witnesses of known respectability, to whom his character had been known for a number of years preceding, who deposed and satisfactorily proved to the court on oath that he, the relator, was a man of good moral character; but that the said court refused the motion, resolving to adhere to the said resolution of the preceding term, and holding that it was at their choice whether they would order a license to any person or in any case. Nevertheless, the court ordered the said motion to be entered of record, and also that relator was duly proved to be a person of good moral character, and also that the court refused the motion, and the reason therefor, as above stated. To this writ many of the justices (upwards of thirty) returned that the relator had applied to the court, ten magistrates being present, and was refused, as stated in his affidavit, and that he had then duly proved that he was a person of good moral character, and that the court had ordered the whole matter to be entered of record so as to facilitate his remedy in the premises; that the reasons for the refusal of the application were as follows: that the court had resolved at February Term, 1844, a majority of all the justices being present, that thereafter no license should be granted to any person, as the said justices entertained the opinion that the retailing of spirituous liquors was against the public policy and a hurt to the morals of the people, and especially to the young, and had observed many evil effects from tippling houses in the county, and particularly in the town of Greensboro, in (317) which there is a flourishing grammar school that is much resorted to *229 by the youth from many parts of the State; and although the relator had shown himself to be of good moral character, yet the justices thought that the business of retailing would, of itself, in that place produce the same evil effects that would occur if men of bad character were licensed to carry it on; and, moreover, the inhabitants of Greensboro had generally petitioned the court to refuse orders for retailing in that place; and they insist that they are advised that, by the law, the granting of orders for such licenses or refusing them is a matter entirely in the discretion and free choice of the justices of the county court, and submit whether they could be compelled to grant a license to one, though of good moral character, for a tippling shop at the door of a church or an academy.
On the foregoing return a motion was made on behalf of the relator for a peremptory mandamus, and each side, waiving all error and irregularity in the proceedings, desired that the motion should be decided on its merits, as depending upon the question whether the justices have or have not the right to enter into a resolution that they would not grant a license to any person, and, upon the ground of that resolution, refuse a license to a person admitted to be, otherwise a proper person and entitled to a license if one were to be granted at all. The court held the justices had no right to refuse to license any free white person who proved a good moral character in the manner prescribed by the statute; and that as the relator had established those qualifications in the county court, he was entitled to a license, and therefore, the peremptory mandamus was awarded. From that judgment the justices appealed. The conduct of those gentlemen who have brought up this question seems to have been fair and honorable throughout, for they have not covered their refusal to license this man under any unfounded suggestion of personal objections, but, with the candor of persons conscious of an intention to do right, they put the truth upon their own record, with the view, if they were wrong, that there should be no improper impediment to any redress the law would afford. They have returned the same matter in substance to the alternative mandamus, in order that the question in its most general form might obtain the opinion of the court of the last resort as to their powers and duties, with the view assuredly, to their due exercise and performance when known. For the sake, too, of the character of the law, as being everywhere equal and uniform in its administration, it is fit this case should have been brought here, that an end may be put to a conflict of opinion and *230 (320) action on this subject among this respected body of magistrates in different parts of this State; for, while in the greater part of the State the justices license tippling houses, according to the demand by those who discreetly resort to them, and according to the probability of an interference with each other, so that none may yield a livelihood, yet we learn that in some few countries they consider themselves bound to license every one who comes with the requisite qualifications, and that in some few others, of which Guilford seems to be one, they hold that they are not bound to license any person, but may refuse every one, without giving any reason for the refusal but their own will, or their opinion that it is mischievous to allow of the sale of spirituous liquors by the small measure.
Upon the proper construction of the statute the Court entertains no doubt. The two opposite extremes — that there is an absolute right in every person to follow the calling of a retailer, if he chooses, and that the justices are bound to license him, with only the condition that he be free, white, and of a good moral character, and, secondly, that there is an absolute and arbitrary authority in the justices to refuse all persons, however unexceptionable in their lives, and however much such accomodations [accommodations] may be desired by the public or any considerable portion of the public for their convenient refreshment, are, like most extremes, both erroneous, as it seems to us, are founded on a mistake of the intention of the Legislature. We cannot say that they are equally mischievous; for we should, if acting as legislators, much prefer to allow no tippling house, rather than multiply them to the enormous extent of giving a license to every one who could make out to find two men who would give him a good character. But we think the Legislature meant neither extreme, but the mean between them.
The claim of the justices of an unlimited and uncontrollable power to grant or refuse a license is founded on the idea that the act confers on them a discretion; and then they hold that discretion, in its nature, is the liberty of those to whom it is confined of acting according to their personal pleasure. It is to be noted that the part of the act which (321) relates to retailers has not the word "discretion" in it. But for the present we will assume it to be meant; and such is our opinion. Yet it remains to be considered what kind of discretion is conferred — a partial, absolute, and arbitrary personal discretion to refuse all applications, or a legal, regulated, and reasonable discretion to grant the applications of such persons as the Legislature declares fit to possess the privilege, as far as the necessity or convenience of the public require such places as accommodations allowed by the Legislature, and beyond that to refuse them. The very stating of the questions furnishes their proper answer. The law abhors absolute power and arbitrary *231 discretion, and never admits them but from overruling necessity. And there is no arbitrary power that would be felt to be more unreasonably despotic and galling than that under which a small body of inferior court magistracy should undertake, upon their mere will, without any plain mandate from the lawmaking power, to set up their taste and habits as to meat, drink, or apparel as the standard for regulating those of the people at large. For ages past sumptuary laws have been abandoned. The Legislature does not affect to assert that policy. On the contrary, the Legislature allows the indulgence of the inclinations of individuals in the use or disuse of spirituous liquors, as of other articles of sustenance; and for those who choose to use them it further allows of the vending of them in such quantities and at such places as may be suitable to their convenience. The toleration of ordinaries and tippling houses is conclusive that the Legislature does not deem them evils in themselves, or, if so, that they are deemed necessarily evils. They are not against the legislative policy; and that is the only thing courts can look at as the public policy. By the Legislature, therefore, they are permitted, authorized, and approved, at least to some extent. It requires but little thought to perceive that it could not be otherwise. In the act under consideration, Rev. Stat., ch. 82, the first part is a regulation of ordinaries, and it is express that licenses for them may be ordered "at the discretion of the court." Now, every one sees that the Legislature could not but know that the public necessities (322) absolutely require ordinaries or inns for the accommodation of wayfaring people, those called from home by private business or public duty, who must have some fit place for lodging, and where they may, for a reasonable price and without injurious delay, procure their accustomed refreshment of meat and drink, and then proceed on their business. Can anybody believe that in giving the justices a discretion in licensing ordinaries the intention of the law was that they might in the form of refusing all licenses, arbitrarily suppress all such needful establishments, leaving the travelers to sleep out of doors and to buy and cook his victuals as he could? If not, then that shows the kind of discretion that is conferred in such cases. It is a reasonable, salutary, discretion to be exercised as appears in the act, by not licensing any person who is grossly immoral, or in such poor circumstances that he cannot, probably, keep such a house as will accommodate the public, and as we think, from the nature of the subject, by also not licensing more ordinaries than custom or probable number of guests will justify, so that they shall not interfere with and break each other down, and, for the want of good company, the keepers be driven, for a livelihood, to entice the unwary into idle courses, and entertain the dissolute in their houses, not maintaining good order and rule therein. *232 Although keepers of ordinaries are not obliged by their bond to provide liquor for travelers, as they are diet and lodging, yet there is no doubt they were expected to do so, so as a matter of course, to subserve their own interest, and, moreover, the act of 1755 requires the justices once a year or oftener to rate their prices of liquor, diet, lodging, and corn, fodder, and pasturage for horses. We say, then, that it is impossible the Legislature meant to trust any body of men with the uncontrollable power of putting down all such ammodations [accommodations]. The people, for instance, are called, not only from all parts of Guilford County, but from different parts of the State to the town of Greensboro six times a year, in attendance upon the courts of that county; and did the Legislature intend they should have no place of rest, recreation, or refreshment, or (323) to put it in the power of the justices of the county absolutely to deny them such accommodations? And here it may be proper to notice an argument contained in the return — for we do not understand it literally to state, as a fact, that the relator's shop is at the door of a church or a schoolhouse. But it is asked whether the law obliges the justices to license an ordinary or tippling house at the door of a church or academy? We answer, certainly not; for, although not necessarily evil or disorderly, yet, probably, all sorts of persons would be drawn there in such crowds as would disturb a congregation in their devotions, or draw off the boys from their books, and lead them into disorder, when of an age at which they have neither the capacity nor the right to judge or act for themselves. But, on the other hand, it is certainly not a reason why an ordinary should not be licensed in a town that there are a church and a school in the town. It is to be hoped that there are a church and school in every town, at least in every one of much size; and their existence there, instead of increasing the ills to which ordinaries tend, are the very best means of correcting them. If the place be of sufficient population to maintain a church and a school, it will commonly be of sufficient extent to allow of places of accommodation in situations not so contiguous to either church or school as to interfere with the proper avocations at either. There is no doubt but the young may be led astray at such places. But the Legislature has not, for that reason, thought proper to suppress them altogether, because they are needful to many citizens, but relies on the authority, diligence, and discipline of the parents and teachers of the young, and of the pastors of the people, to restrain them from the abuse of such establishments, and on the punishment inflicted by law for actual excesses and disorders.
Precisely of the same character are the powers and duties of justices in licensing persons to retail without keeping ordinaries. There is no distinction in the act, supposing the discretion as to ordinaries to extend also to retailing. Unless it does, there is an end of this pretension of the *233 justices; for, instead of their having the arbitrary power to refuse all licenses, the citizen would have the absolute right to a license, (324) if of good character. But we admit the license rests in the discretion of the justices; yet we say it is a discretion of the same nature and to be exercised on the same grounds and to the same extent as in the case of ordinaries. It is not arbitrary, but must have some reason for its exercise. It is not a case in which voluntas stat pro ratione. One may act on that maxim in his private affairs; but for one acting under public authority, and as a minister of the law, it is no answer to the citizen, to the community or the Legislature. It is said there is a great difference between the utility of places for repose and the supply of food, and of tippling shops; for the former are requisite for the comfort and subsistence of the guests, while the latter are often so abused that it is a kindness to the people to suppress them. The answer is, it may so; but it is for the Legislature exclusively to determine it. As the Legislature allows ordinaries for the accommodation of travelers in all their wants, so it authorizes and, in effect, directs that there shall be places of convenient resort for people in humble circumstances to assemble for business, conversation, and refreshment, if they choose. Because persons may not be able to keep house, or lay in large supplies, the law did not intend to deprive them of the social enjoyments that are usual among men; and, therefore, it provides places for their gathering and for the sale of the accustomed liquors in such quantities as are suitable to the occasions and the means of the people who generally resort thither. That there may be as little prejudice to those persons as possible, and as little disturbance of the public peace, the Legislature established such guards as to it seemed meet by requiring an annual license from seven justices upon the annual proof of a good moral character. Now, it is not for the justices to say that the Legislature has guarded the public morals inadequately, and improperly allows a nuisance, and, therefore, that they will step forward to supply the shortcoming of the Legislature, and, contrary to the intent of the Legislature, suppress such accommodations altogether. That would be not only to make the law instead of administering it, but to make a law in opposition (325) to the one enacted by the Legislature. The first restraint upon retailing by all who choose was by the act of 1825, which requires a license from seven justices, upon proof of good character. Under that act the justices seem to have gone beyond the intention of the Legislature in too liberally licensing improper persons, including, it may be inferred, free negroes; for in 1828 they passed "an act to restrain the justices of the country courts in granting licenses to retail spirituous liquors" which alters the act of 1825 in two particulars only — the one, that none but free white persons should be licensed, and the other, that *234 the good moral character should be known by at least two witnesses of known respectability, to whom the charcter [character] of the applicant had been known at least one year. It is clear, therefore, from these acts that the practical evil apprehended by the Legislature was that licenses would be granted to irresponsible and loose persons, and that the main object was to prevent that evil. But the Legislature did not intend, of themselves, to put down the sale of spirituous liquors, and still less did they intend that the justices should do it, or expect that they would ever think of doing it; for the scope of the Legislature is to guard against the opposite error of licensing unfit persons. Upon the whole, then, we conclude that the justices have not, under their discretion to regulate the retailing of spirituous liquors by granting licenses, the arbitrary power of prohibition. They ought not to have it. No body of men ought to possess it that is inferior to that body which can make, modify, and abrogate the law at their pleasure, and through which the general popular will propagates and exhibits itself. There are good persons who think it would be conducive to the happiness of men to refrain from the use of spirituous drink; and no one can dispute the shocking evils often produced by the excessive use of them. Therefore, it is very fit that benevolent persons who entertain that opinion should by persuasion, example, forming associations, and other moral means endeavor to induce men to (326) renounce it; and in that all may wish them success, however, much many may despair of it. But that is very different from an attempt by a court arbitrarily, and without the injunction of the Legislature, to compel mankind to desist from even the moderate and accustomed use of it as an enjoyment of life, by suppressing all places for the convenient sale of it. However much we may desire to promote the virtue of temperance — and it is, certainly, a noble object of Christian benevolence — we cannot use as a means to that end, even if it were likely to effect it, a discretionary power conferred by the law for a purpose totally different. The justices cannot convert a discretion to refuse a license to unfit persons, or, after enough have been already granted, to refuse further applications, into an arbitrary discretion and despotic resolution to grant a license to no person under any circumstances.
We are not without judicial precedents as to the proper construction of statutes vesting justices with discretionary powers, and, indeed, with this very discretion of licensing tippling houses. The statute, 5 and 6 Ed. VI, ch. 25, recites that "forasmuch as intolerable hurts and troubles to the Commonwealth of the realm do daily grow and increase through such abuses as are used in ale houses and tippling houses," enacts that none shall keep such houses but such as shall be allowed in open sessions of the peace, or by two justices, as by their discretion shall be thought necessary and convenient; and that the said justices *235 "may put down the selling of ale or beer, in any ale house or tippling house, where they shall think it meet or convenient." Now, before that act all might in England keep a tippling house, as here before 1825, for it was a means of livelihood which every one was free to follow. And under the act it was held that the discretion vested in the two justices was so far personal and peremptory that no appeal would lie from them to the sessions. Stephens v. Watson, 1 Salk., 45. And a mandamus has since been often refused, as we shall have occasion hereafter to state more particularly. Yet, it was held, notwithstanding the express grant of a discretion to the justices, that they had not the arbitrary discretion of refusing an applicant. In Young v. Pitts, 1 Bur., 556, upon an application for an information against justices for refusing a (327) license, the Court said "that it must not be permitted to them to exercise an arbitrary and uncontrolled power over the rights of the people; that if they had no reasonable objection against the applicant, they ought to license him; and if they had, they ought to give it." Lord Mansfield disclaimed any power to review the reasons of the justices by way of appeal from their judgment (in the particular case) or overruling the discretion intrusted to them; yet held that if they were partially, maliciously, or corruptly influenced in the exercise of their discretion, and abused the trust reposed in them, they were liable to prosecution by information, indictment, and, possibly, even by action. It is true, in that case the rule for an information was discharged, but it was because the justices had exercised their discretion honestly and likewise correctly, as regarded the fitness of the person and the necessity of his ale house, there being one already in a small place. But the principle is clearly declared that the discretion of the justices is not merely personal and arbitrary. And in the subsequent cases, Rex v. Williams and Rex v. Davis, 3 Bur., 1317, informations were sustained against justices for refusing to license persons because they would not vote in an election as the justices wished, not merely for refusing the license, which was in their sound discretion, but for the unjust and oppressive abuse of their discretion in refusing for that reason.
So it is clear, as it seems to us, that the justices have not, by the just construction of the law, the arbitrary power of suppressing all places for the retailing of spirituous liquors.
On the other hand, we hold that they are not so entirely without discretion as to be bound to license every applicant, though he be qualified. It is true, there is no express grant of discretion, eo nomine, in section 7, Rev. Statutes, nor is it to be found in the acts of 1825 and 1828, which are combined in that section. But the very requiring a license, and the presence of so many magistrates at the granting of it, (328) imports a duty of judging whether the supply of retailers is *236 adequate to the accommodation of the public. Not, indeed, upon the arbitrary principle that the people ought not to be allowed any, but upon the principle of the legislative policy, that they shall have those accommodations according to the demand the justices really believe will be made by those of the people who repair to such places "for their relief," as the statute of Edward expresses it. So, too, there are situations in which it would be so unseemly that a tippling house should be set up that all men would be shocked at one's being licensed there: as, literally, at a church door or schoolhouse, or, even, so near a courthouse as to incommode the court in the dispatch of business. Besides those considerations, which tend to show that in some cases there must be a reasonable discretion lodged in the justices, the incorporating the acts of 1825 and 1828 with that of 1798, in the Revised Statutes, under the general title of "An act for regulating ordinaries," and the different parts of the act in relation to the two subjects of ordinaries and retailing being so completely in parimateria, compels us, upon every principle of construction, to carry forward the discretion expressly given in reference to ordinaries and apply it to retailing likewise. Why should there be discretion in one case and not in the other? Immorality of the applicant is equally a positive bar in either case. Then, to what is the discretion directed in respect to ordinaries? There are but two things upon which it can be exercised. They are the place where the ordinary is situate and the demand and need for it there. A like discretion is requisite as to licensing a retailer; for, in reality, the mischief principally to be apprehended from licensing an ordinary arises from the retailing at it. Besides there may be already a sufficient number licensed for the occasion of those who resort to such places. We, therefore, think the justices have a reasonable discretion to deny a license upon those grounds, as well as for the unfitness of the person.
But we cannot affirm the judgment, although all objection to the form of proceeding was waived in the Superior Court, and the justices (329) put their case upon the simple point of their power being absolute. But the consent of parties cannot confer a jurisdiction on the court to proceed in a manner forbidden by the law, more than to decide the matter of right contrary to law. Now, a mandamus lies only for one who has a specific legal right, and is without any other specific remedy. 1 Chitt. Genl. Pr., 790; S. v. Justices,
Yet it is not to be supposed that there is no redress in such a case. What redress the party may have by action in a case of gross malice towards him, as suggested by Lord Mansfield, it is not our province how to determine. This is not a proceeding of that sort, and it is very clear that these gentlemen were actuated by no ill-will towards the relator personally. But the occasion is a fit one to say that there is no doubt the justices would be amenable to the law criminaliter, by indictment, for obstinately persisting in refusing to license any person whatever, after being informed of their mistake of the law hitherto, as also for a refusal to license a particular person from corruption, or with a view to oppress him from spite. The cases have already been adverted to on this point. Rexv. Nottingham, Rex v. Young, Rex v. Williams and Rex v. Davis. The distinction between the different methods of proceeding is perfectly intelligible. The mandamus will not lie, because by law the justices, with local knowledge, are to judge for themselves, and the judges of a higher court are not to dictate to them. But the indictment will lie, because, although the law allows the justices to judge for themselves, it requires an honest judgment, in subordination to the law, and punishes a dishonest one, that is, one given in opposition to the known law. If it be said these gentlemen really believe that there ought to be no spirituous liquors retailed, the reply is that they are not to be guided in their decision by their own belief on that point, but they are to *238
found their judgment on what they believe the Legislature intends on it; in other words, they are to act on what they believe the law to be, and not what they think it ought to be. It is a criminal perversion of power to use it for a purpose for which the Legislature did not confer it and with the view of defeating the end the Legislature had in intrusting the power to them. In fine, in this case, it would amount to an attempt by a few individuals to set up their will against the general sentiments and habits of mankind and the legislative authority of the country. There are other cases of discretionary power which stand on the (331) same legal reasons with this, about which there would be no difference of opinion as to the question of criminality or mode of redress. For example, before the act of 1813 the whole subject of roads vested in the discretion of the county courts; and no appeal lay from their decision. Hawkins v. Randolph,
The above observations are not made in reference to any expected action of the gentlemen now before the Court, for it is obvious their conduct arose from the belief that they were acting according to law, and from no actual corruption. But they will now know that they mistook the law; and if magistrates, fully informed that they have a discretion to regulate a branch of the public police, should perversely abuse their discretion by obstinately resolving not to exercise it at all, or by exercising it in a way purposely to defeat the legislative intention, (332) or to oppress an individual, such an intentional, and, therefore, corrupt violation of duty and law must be answered for on indictment. *239
But because this is not a case for a mandamus, the judgment of the Superior Court must be reversed, and the motion of the relator for a peremptory mandamus refused, with costs.
PER CURIAM. Reversed.
Cited: S. v. Moore,
(333)