#### STATE v. SAMUEL E. MOORE.

Where, hy a private act of Assembly, a County Court is forbidden to grant a license to retail spirituous liquors b'y the small measure, within the limits of an incorporated town, without a written- recommendation from the Board of Commissioners of such town, and it appears from the records of such Court that they granted a license thus to retail without such written recommendation, the person obtaining such license is not thereby protected from an indictment.

This was an indictment tried before bis Honor Judge Caldwell, at tbe Spring Term, 1854, of Edgecombe Superior Court.

By a private act of Assembly, entitled an act for tbe better regulation of tbe town of Tarboro’, it is provided that tbe County Court of Edgecombe “ shall not grant a license to any person to retail spirituous liquor by tbe small measure, witbin tbe corporate limits of tbe town of Tarboro’, without a written recommendation from tbe Board of Commissioners of said town.”

Notwithstanding tbe provision above mentioned, tbe County Court of Edgecombe did proceed to grant a license to tbe defendant, to retail spirits witbin tbe limits of tbe town of Tar-boro’, and a record was made and entered upon tbe Minutes of that Court, as tbe evidence of that proceeding, which is as follows :

“ Samuel E. Moore, a citizen of Tarboro’, comes into Court and moves for a license to retail spirituous liquor. He proves, by two respectable witnesses, that be is. a man of good moral character, and a suitable person to retail spirituous liquors. But, failing to produce to tbe Court tbe written recommendation of the Commissioners of the Town of Tarboro’, be in excuse alleges that there has been a fraudulent combination or purpose of tbe Commissioners aforesaid, to suppress all retailing of spirituous liquors in said town, by a measure less than a quart, by refusing a recommendation to- all persons who may apply to them. Tbe applicant then proved to tbe Court that each of tbe Commissioners bad been beard to say that they would not re*277commend any person for license to retail in said town. It was further proved that there are only two retail shops in the town of Tarboro’, and that the license of each would expire in a few days after the present term of this Court, and that there had been no other application to the Commissioners for a recommendation for license to retail, and that the applicant was the only person who had moved the Court for license to retail in the town, and that at least one retail shop in the town was necessary. Mr. Hugh B. Bryan, one of the Commissioners, being in Court, states that he had no objection to the character of the applicant — thought that he was a suitable person to retail, but, believing there was no necessity for a retail house in the town, that he would refuse to recommend any one who would apply. The applicant, by his counsel, insisted that he had proved a fraudulent combination on the part of the Commissioners to suppress retailing spirituous liquors, which was a sufficient ground for the Court’s hearing the case and granting a license, as in other cases. The Commissioners of the town, by their counsel, insisted that libere was no fraudulent combination or purpose, to withhold license, proven; but, if there was combination proven, the Court had no power to grant license, as they were forbidden to do so by act of the General Assembly, passed at the session of 1831-’2, chapter 66, sec. 6, without the written recommendation of the Commissioners of the said town.”

“ After hearing arguments of counsel, it is ordered by the Court, that the applicant have permission to retail spirituous liquors at his store in the town of Tarboro’, for twelve months.”

The defendant was indicted in a bill containing several counts: 1st. For retailing to one Littleton Walston, without a license to retail, against the form'Of the Statute, &c.; 2d. For retailing, in Tarboro’, to the same person, without a license granted by the County Court of Edgecombe, upon the written recommendation of the Commissioners, against the form of the Statute, &c.; 3d. For retailing to the same person, in the town of Tarboro’, without a license, against the form of the act of 1831; 4th. *278Por retailing with a license, but not with one obtained according to law, against the form of the act of 1881; 5th. As in the fourth count, but concluding against the “ Statutes,” in such case made and provided.

It was proved that the defendant did retail spirituous liquors within the year from the date of the license, within the limits of the town of Tarboro’, and the Court being of opinion that he was not protected by the license granted by the County Court, so instructed the jury, who found the defendant guilty.

Motion for a *venire de novo.*Motion over-ruled. Judgment and appeal to this Court.

*Attorney General,*for the State.

Moore, for the defendant.

Nash, C. J.

The defendant is indicted for selling spirituous liquors in the town of Tarboro’, and the question arises under a private act of the General Assembly, passed in the year 1881, entitled “ an act for the better regulation of the town of Tar-boro.” See Laws of North Caroling 1831, ch. 66, s. 6.

By the general law of the State, the several County Courts, seven Justices being on the Bench, are empowered to grant licenses to individuals to retail spirits by the small measure— that is, less than a quart, Rev. Stat. ch. 83, s. *7;*but they are not at liberty to grant such license to any one, who does not prove by at least two witnesses of known respectability that they have known the applicant’s character for one year at least, and that his moral character is good. This amounts to a prohibition to the magistrates to grant a license upon any other terms; and it is a gross violation of their duties as Judges, if they grant a license, without such proof of his good moral character. Tarboro’ is an incorporated town, and has a Board of Commissioners, invested with the usual powers to pass laws or ordinances for its regulation and government. At the request, no doubt, of the citizens of the place, the act of 1831 was passed. The power and right to grant licenses to retail spirits in *279the town of Tarboro’ was left in the hands of the County Court; but the evidence of the moral character of the applicant was changed to the Commissioners. The latter body, to whom the regulation of the police in other respects is committed, are chosen by the citizens themselves — men of integrity, information and discretion, and, it was'presumed, would be well acquainted with the moral character of every man who might apply for a retailing license. Being themselves citizens of the town, and clothed with an important office, it was presumed that their recommendation would, to the magistrates, be.a safer guide in the discharge of their responsible duties, than the evidence provided in the general law, in this respect. Upon this point, the language of the private act of 1881 is much stronger than that of the public act of 1836 — so strong that no one can mistake its meaning and obligation. In the latter act, the language is, “that the County Court *shall not*grant a license to any person, &c., without a *written recommendation*from the Board of Commissioners,” &c. Not from the Commissioners, as individuals, but as a board of public officers — not simply that the applicant is a man of good moral character, but must be recommended — not proved to the Court orally, but it must be in writing, that the Court may have upon its files the evidence upon which they have acted — thus placing the responsibility of their action where the law intended it should rest. Has this command of the law in this case been obeyed ? On the contrary, the action of the Court has been in direct violation of it. It is said, however, that we cannot look behind the license, as it was granted by a Court having jurisdiction. Where a competent tribunal acts within the scope of its authority, their action cannot be questioned in a collateral way. Until reversed, it is not to be controverted. But, when such a Court does act, and their own record shows it had no power to do the act, their judgment is void, and conveys no authority. In the case before us, the record of the County Court shows that it was made known to them that the defendant had applied to the Commis*280sioners for a recommendation, and they had refused it. The record then proves they had no authority to grant the license, and it was void, and conveyed to the defendant no authority to retail spirituous liquors by the small measure, in the town of Tarboro’.

It was also insisted, that the Commissioners were guilty of a fraud in not agreeing to issue license to any one. There is no evidence of any fraud whatever, and the charge is fully answered as to the agreement, by the cases of Young v. Jeffers, 4th Dev. and Bat., and the ATTORNEY General against the Justices of Guilford, 5th Ired. 315.

The objection as to the conclusion of the indictment was not pressed here.

This opinion will be certified to the Superior Court of Edge-combe, t.o the end that the Court may proceed to sentence according to law.

Judgment affirmed.