State v. . ThreadgillState v. . Threadgill
The defendant is indicted in the Superior '-'Court for the violation of an ordinance of the town of Wadesboro. The defendant insists that the Court has no jurisdiction of the offence charged, and that His Honor erred .in his instructions to the jury.
I. The jurisdiction. Thе ordinance was passed in May, 1873, and prohibits the sale of spirituous liquors within the ‘tоwn in the quantity of a quart or less, without the license «-of the Mayor and the paymеnt of twenty-five dollars, under a penalty of ten dollars or ten days imprisonment. The *18 State claims that the violation of this by-law is indictable-in the Superior Courts by virtue оf Bat. Rev., cli. Ill, § 81,., which section is thus worded: “Any person or persons violating any ordinаnce of any city or town of this State, shall be deemed guilty of a misdemeanor, and shall be subject to-the provisions of this chapter.”
Whether the Legislaturе meant by this act to confer upon the municipal corporations which created the offences, the-jurisdiction to try the offenders, or upon the Superior Co\xrts,v is a question admitting of no doubt. The penalty for violating the ordinаnce is fixed within the limits of the Justice’s, jurisdiction, and by consequence the jurisdiction оf the Superior Courts is expressly excluded by the Constitution,, Art. IV. §§ 83-15. But it is insisted by the State, and Ilis Honor so held the law to be, that when the Statute declared the violation of a town'ordinance to be a misdemeanor,, without limitiug the punishment within a Justices jurisdiction, that the punishment of the offence was at the discretion of the Court, and the Superior Court therefore had exclusive jurisdiction. If this be so, it was superflous in the-town to affix a penalty to the violation of the ordinance.. The cоrporation has no jurisdiction and therefore cannot enforce it, аnd the Superior Court, because it das jurisdiction,, cannot notice it! The jurisdictiоn cannot ie concurrent, because they have not the same pоwer of punishment. A plain: principle governs the case. • It is this: municipal laws must, bе executed by the municipality itself, miless some statute-provides expressly otherwise. This is a limitation which; rests upon municipal powers. The Legislature, in conferring; corporate powers, have selected the depository of the powers; which they intended should be exercised and, in doing so,, have by implication prohibited its exercise by any other-agency; Cooley, Const. Lim. 205. It wоuld be manifestly unjust, to impose on the State and County the expense of administеring the by-laws of corporations, enacted by themselves for *19 their own benеfit, as distinct from that, of the community at-large.
II. The evidence. The defendant denied the existence of' the corporation, or if it existed, he denied that there was conferred upon it the power tó enact the ordinancе in ’question. The ordinance was passed in May, 1873. The State-was unable to produce the original town charter, but to-establish its existence, offered in evidence what purported to be an amended charter of the town, ratifiеd in 1874-, and subsequent to the ordinance. This amended charter recites that the original charter was granted in 1825. Admitting that this was evidence of the existence of а charter, prior to the ordinance, it was not evidence, as His Honor hеld it to be, of the power contained in the lost charter to naake this ordinance. Municipal corporations can exercise no pоwers but such as are expressly conferred, or are essential to the declared purposes of the corporation. Dillon on Mum Corp. § 55.
The Stаte having failed to show that the original act of incorporation authorized the enactment of this-ordinance, failed to make out the case, and His Honor should have so instructed the jury. The Legislature never intended to makе the vmlat-ion of a void ordinance, an indictable misdemeanor. , 4
Other poit-j-s were presented, but it is unnecessary to review them. See Town of Washington v. Hammond, decided at this term. There is error.
Per Curiam. Venire de novo..