#### COMMISSIONERS OF RALEIGH vs. JOHN KANE.

Under the charter of the City of Raleigh, the power of the Commissioners to *294grant permissions to apply to the County Court, for a license to retail, and to collect a tax for such permission is to be exercised but once a year by the set of Commissioners in office, and can be acted upon only by a Court sitting with* in the same year.

No consent of a citizen, can authorize such permission otherwise, oroftener: *Held*therefore that a license, granted by a County Court of Wake, under a permission given by, and paid for, to a Board, not in existence at the time of its session, is void, and subjects the retailer to the penally given by the charter.

This was an action of debt, tried before bis Honor Judge Caldwell, at the Spring Term, 1855, of Wake Superior Court, brought before him by appeal from the judgment of the In-tendant of the city of Raleigh.

The action was commenced by a warrant, for a penalty of twenty dollars, given by an Act of Assembly of 1803, and amended in 1850, entitled “ an act for the government of the city of Raleigh.” The warrant is as follows :

“ State of North Carolina, 1 City of Raleigh. )

“ To any lawful officer of the county of Wake, (to execute and réturn within thirty days from the date hereof, Sundays excepted,) Greeting:

“ Whereas, by the fifth section of an Act of the General Assembly of the State of North Carolina, ratified on the 28th day of January, 1851, entitled “ an act to amend an act passed in the year 1803, entitled “ an act for the government of the city of Raleigh,” it was enacted as follows, to wit: *“*That it shall not be lawful for the justices of the county court of Wake, to grant any license to retail spirituous liquors within the limits of the city of Raleigh, without the permission of the board of commissioners first had ; and if any license shall be granted without such permission in writing, attested by the clerk of the board of commissioners, first filed with the clerk of the county court, such license shall be void and of no effect, and the person obtaining such license, shall be liable to indictment as. in other cases of retailing without license, and to a penalty of twenty dollars, for each and every offense, to be recovered by warrant, before the Intendant of Police, or any justice of *295the peace, in the name of the commissioners of the said city, for the use of said city.

“And whereas, complaint hath this day been made to me, that John Kane, late, of said city, on the second day of April, 1855, did retail spirituous liquors within the limits of the city of Raleigh : that is by a measure less than a quart, unto William Wythe of said city, without the permission of the board of commissioners first had, and under a license granted by the justices of the county court of Wake, without such permission in writing, attested by the clerk of the board of commissioners first filed with the clerk of said county court, contrary to the form of the fifth section of the act aforesaid, whereby and by means of the premises, and by force of the statute aforesaid, an action hath accrued to the commissioners of the city of.Raleigh, for the use of said city, to have and demand the said penalty of twenty dollars: These are therefore, to command you to take the body of the said John Kane, so that you have him before me, or any justice of the peace of the said county, at the city of Raleigh, within &c., to answer the above complaint. And have you then and there this warrant.

*“*Witness, the signature of our Intendant of Police, at the city of Raleigh, this second [seal oe the city.] day of April, 1855, and the seal of the said city.

W. D. Haywood, Int’nt.”

To which warrant, the defendant pleaded the general issue, license, and permit to retail spirituous liquors before, and at the time' of issuing said warrant, also that he exhibited the same duly proven in open court upon the trial.

Upon this warrant, there was a verdict for the plaintiffs, subject to the opinion of his Honor, upon the following statement of proceedings of the county court upon the granting of the license aforesaid :

*“*Court of Pleas and Quarter Sessions, ) February Term, 1855. [

“ John Kane, of the city of Raleigh, applies for a license to *296retail spirituous liquors in the city of Ealeigh by the small measure. The board of commissioners of the said city, by *Edward Oantwell, Esq.,*city attorney, objects to the said application, that he has not the permission of the said board to apply for the same. The said John Kane, thereupon, exhibits in open court a paper writing, previously filed with the clerk of said court, in the words following:

“ Ealeigh, January 6, 1865.

*“*Ordered by the board of commissioners of the city of Ea-leigh, that Mr. John Kane, be recommended to the county court of Wake, as a suitable person to have a license, to retail spirituous liquors by the small measure, at his old stand, in the city of Ealeigh.”

(Signed,) “ J. J. .Christophees, Clerk.”

He proved- the grant, and due issue of the same.

The board by whom this permission was granted, were elected in January, 1854, to serve for one year, and went out of office on the 15th January, 185.5, when a new board was elected in conformity with the city charter. On the ljtli January of that year, the newly elected board at their first meeting, passed the the following order:

“ *Resolved,*That the permission in writing, granted by the late board to John Kane and to John Sugg, to apply to the county court, at its next February Term, for licenses to retail spirituous liquors be, and the same is hereby rescinded, and that it be certified to the county court, that the said John Kane and John Sugg, have not the permission of the board to apply for a license to retail spiriuous liquors in the city of Ealeigh.”

This proceeding of the then board was duly certified to the county court, and notice thereof given to the said Kane and Sugg. The commissioners, by their attorney aforesaid, contended, 1st, That the power of the board of commissioners elected in 1854, expired with their term of office in January, 1855, and that they could not grant a permit to take effect in February, 1855, when they would be and were out of office. *2972nd. That if this was not so, then that under the chapter, the present board, having tendered back the tax paid by Mr. Kane for his permit, had a right to revoke, and did revoke the same; therefore that Mr. Kane had no recommendation from the board and was not entitled to a license.

The court, however, was of a contrary opinion, and thereupon ordered that he should receive a license, and accordingly, he was licensed to'retail for one year in the city of Raleigh from the 3rd Monday of February,’ 1855, which is the same license pleaded by him. Upon the foregoing case it was agreed by the counsel on both sides, that if his Honor should be of opinion that the action of the county court was legal, that judgment should be entered for the defendant, but otherwise, for the plaintiff for the penalty and costs.

And upon consideration of the said case, his Honor being of opinion with the plaintiffs, gave judgment accordingly ; whereupon the defendant appealed to the Supreme Court.

Cantwell, for the plaintiff.

1. Unlawful to license the defendant without plaintiff’s consent, A. A. 1803, E.. L. Raleigh, sec. 21, p. 24; lb. 1851; lb. sec. 5, p. 57. These acts amount to a prohibition in the county court to license without the permission of “ the board,” *State*v. Moore, 1 Jones’ Rep. 276.

2. The permit exhibited, not the permit of “the board” but of individuals who *once*composed it. The powers of each board expire with tho'year, *Corns, of Wil.*v. *Roby,*8 Ire. 250, and the commissioners of Raleigh cannot bind their successors, L. L. Ral. 1814, sec. 1, p. 36 ; lb. 1803, sec. 1, p. 17; lb. sec. 3,. p. 18.

*Q. W. Haywood Lewis*and *Moore*for defendants.

Battle, J.

The record in the present casé brings fairly before us, for revision, the order of the justices of the county court of Wake, made at the last February Term, by which they granted a license to the defendant, authorizing him to *298retail spirituous liquors for one year within the limits of the city of Raleigh; which order we have decided in another case, against the same defendant, cannot be reviewed by the writ of *oeriiorari.*If the license granted by the said justices be for the reasons assigned by the plaintiffs “ void and of no effect,” then the defendant is liable to them for the penalty claimed in this suit under the plain .provisions of the 5th section of the act of 1850, entitled an act to amend an act passed in the year 1803, entitled “ an act for the government of the city of Raleigh.”

The plaintiffs contend that the grant'of the license in question was void, because it was made without the permission of the board of commissioners then in existence; and the question is whether the persons who composed the board prior to the 15th January, 1855, and whose term of office expired on that day, or those who succeeded them and who therefore composed the board when the grant was made, were the board of commissioners whose permission 'was to be first had, before the grant could be lawfully made within the meaning of the act referred to.

We deem the question an important one, affecting, as it does, the power of the justices of the county court of Wake, the rights of the defendants and the good and orderly government of the city of Raleigh, and we have therefore given it our attentive consideration. The result of our reflections is that the board of commissioners, whose term of office had expired before the sitting of the county court, had no authority to give the permission upon which the justices acted, and that consequently their order, granting a license to the defendant, was void. The reasons which have brought us to this conclusion, we will now proceed to state.

The act of 1850 was passed, as appears from its title, to amend the act of 1803 ; and may, therefore, legitimately receive aid from it, whenever such aid may be necessary to ascertain its meaning. The fourth section of the amending act authorizes the commissioners of the city *“*to levy and collect a tax, not exceeding twenty-five dollars on every billiard table, nine *299or ten pin alley, victualing house or restaurant, and upon every permission granted to retail spirituous liquors within the limits of the said city.” The act does not prescribe in express terms, whether these taxes may be levied and collected annually, semi-annually, or bi-ennially. How then are the city authorities to know how often they have the power to assess and collect them ? The answer is to be found by referring to the 8th section of the.act of 1803, by which the taxing power is conferred upon them in the following words: “ In order to raise a sufficient fund for repairing the streets of the city, and for effecting other useful and necessary purposes, the said commissioners are hereby authorized to lay,, levy and collect annually a tax.” &c. We are then satisfied beyond a doubt, that the taxes authorized by act of 1850, are to be levied and collected *cmnually.*But when is the tax upon permissions to retail to be paid ? As to that, the act of 1803 cannot furnish any information, because the grant of a permission to retail is not of a nature to be listed like the taxable property and polls therein specified. The tax then may, in the absence of any provision to the contrary, be demanded when the permission is given. And it is reasonable that it should be so, because the permission may be applied for and obtained at any time during the year, with a view to apply for a license from the justices of the county court, provided the members of the board which gave it, shall continue in office until the court shall sit. Such too is the public law relative to the payment of the tax on the license which the sheriff receives as a part of the public revenue. (See 1 Eev. Stat'. ch. 102, sec. 20, and Act of 1854, ch. 3T, sec. 23, par. 14.) And such we learn is the practical construction which has been placed upon the said 4th section of the act of 1850. Having thus ascertained that the commissioners of the city of Baleigh have the power to levy and collect a tax upon the grant of their permission to retail every year, and not oftener, and to demand payment when the grant is made, we are prepared to understand the meaning of the Legislature in the enactment of the 5th section of the act. The words are, “ that it shall not be lawful for the justices of *300the county court of Wake, to grant any license to retail spirituous liquors within the limits of the city of Raleigh, without the permission of the -board of commissioners first had, and if any license shall be granted without such permission in writing, attested by the clerk of the board of commissioners first filed with the clerk of said county court, such license shall be void and of no effect.” The question is, what board ? — one, the-members composing which had gone out of office when the license was granted ? or one whose members are then in official existence? “The commissioners of the city of Raleigh” are a political corporate body having perpetual succession ; but that succession is.to be kept up by the annual election of competent persons to fill the office. The board of commissioners is the name by which they are more particularly called when met for the transaction of official business. Thát too is a body having perpetual succession, but the members composing it change every year; for though the same individuals may be re-elected for successive years, yet they, have to qualify, by taking the prescribed oaths, before they can act; just as any other persons would have to do. Hence we find the distinction between the *“*existing” and a “ former board,” as will be seen by a reference to the 16th section of the act of 1803.

It follows from this, that all such taxes as are *annual,*can be levied and collected once only, during the official existence of any one^ set of members composing the board of commissioners. We have seen that the board, or the members composing the board, which gives the permission to retail, may demand an immediate payment of the tax. The power to give the permission and the power to tax are thus shown to be co-extensive and must-therefore begin and terminate at the same time.

Now, let us see how all this applies to the case before us. No person will deny that the members who come into office, and compose, what we will call a new board, in the month of January in any year, have power to give a permission to one who wishes to apply at the next succeeding county court for-a license to retail within the limits of the city, and to demand the payment of the tax for the same. If so, their power, be*301ing a limited and special power, as in its nature must be, is exhausted and gone. As to that, the board is *functus*officio, and any further attempt to exercise the power, must be a nullity. But perhaps it may be said, that it does not appear that the board which granted the permission in the present case had ever before exercised the power, and that therefore the grant was valid. The clear and decisive answer is, that the Legislature did not confer the same power, which is necessarily limited to one year, upon two sets of commissioners to be exercised during the same year. Yet such would be the case if the action of the members who composed the board of 1854 could be sustained. Their power to grant a permission to the defendant for a license, and to tax it, commenced with their entry into office. They did, or might have authorised him to apply for a license at the February term, 1854, and for their permission have made him pay a tax. Their successors must have- the same power for 1855. And unless the power of the former set be confined to their official term of existence, it must necessarily trench upon that of the latter, which the Legislature certainly never intended. But it may be argued that the defendant was, for certain reasons satisfactory to himself, willing to take and pay for a permission from the board of 1854, and that he might, if he choose, waive the objection to the payment of the double tax. The réply is, that the question is one of *¡power*in the board, and his consent cannot confer what the Legislature has withheld.

"Viewing the case in every light in which it can be presented, it appears to us that the. late board of. commissioners did an act which amounted to the exercise of power, which properly belonged to their successors, and not to them, and that therefore, their act was null and void.

In favor of this construction too, an obvious policy may be urged. It is that the license, which the court may grant, must be in force, for a part, greater or less of the time during which the members of the board who gave the permission are in office; and they will, of course, feel a deeper interest in seeing that the.retailer does not abuse his privilege.

*302The objections to the sufficiency of the warrant are all untenable.

It sets forth every fact necessary to show that the penalty given by the act, had been incurred. It states that thereby an action had accrued to the “ commissioners of the city of Raleigh,” which is the name in which the act directs the penalty to be recovered.

Per CuriaM. Judgment affirmed.