#### *G. Heisembrittle ads. City Council.*

The City Council of Charleston have the right under the constitution of this State, of passing an Ordinance to prevent shop-keepers, (other than tiróse licenced by the city,) from keeping airy spirituous lipuors, wines, &c., in their shops or in any adjacent room.

*Tried in the City*Court, *before*J. Axon, Recorder, *at*Charleston, *November*Term, 1841.

This was a process for a violation of a City Ordinance, prohibiting the having of spirituous liquors in a room adjacent to his shop. There was no question as to the fact of the liquor being there. The only question was, whether the defendant was owner of the shop. The following is the testimony.

*Isaac A. Rutland*sworn, proved the liquor in shop, that defendant was in the charge and management of the store, that he went there as deputy sheriff to arrest defendant on civil process, he asked indulgence until he got some one to ■ put in charge of *his*shop.

*James A. Millar*sworn, said he saw defendant at the door of this shop, on 16th January last, has seen him serving at the counter; a charge was made by witness as Marshall, against the owner of this store, for exposing goods on pavement; directed the notice of this charge to Mr. Heis-embrittle ; the brother of defendant came and paid the fine. Plaintiff’s testimony closed.

*Defence.*

*M. II. Meyor*sworn, said that Henry Heisembrittle was the owner of that store, (corner of Church and Chalmers streets,) last January; was at Henry Heisémbrittle’s store in Meeting street, about that time, when the owner of the house where the shop is kept, brought a lease of it to Henry Heisembrittle. *Cross*examined, has known defendant 2 years, witness has been here since 1835, knew Henry about the same time; Henry owned a shop in Meeting street, saw him there week before last, knows that Henry slept at his shop in Meeting street; has been there with him until 11 o’clock at night, and left him there as his *234home, dont know if he owns that shop now. When he first knew defendant, he was clerk on South-Bay; has seen defendant at the shop, corner of Church and Chal-mers streets, for about 12 montlis ; has seen Henry sometimes in Meeting street, and sometimes at the comer of Church and Chalmers streets.

*Henry*Heisembrittle, sworn, said he owned the premises at the corner of Church and Chalmer streets, in January last; he paid the fine alluded to by Millar; has since sold the shop to *Buhoinkle. Cross examined,*he lives now in King street. Defendant is now clerk of Bulwinkle, at the same shop, he leased the House from Mr. Monzon; his brother, (defendant) was his clerk at that shop ; dont recollect how much he paid his brother; his brother owed him a great deal, settled with him when he sold the store, came to an account and paid him a balance ; his brother came here about 2 1-2 years ago; his brother was indebted to him for his passage out here, and for his board. Witness was here about 4 years before him ; on 18th January last, witness lived in Meeting street, at the corner of Light-wood’s Alley ; his brother managed the store at the corner of Church and Chalmers streets; witness owned that shop 3 or 4 months; had no other clerk there; did not set his brother up there.

*Charles Buhoinkle*sworn, said he now owns the shop at the corner of Church and Chalmers streets ; defendant is his clerk; bought it from Henry Heisembrittle, for $550, paid the money to him in his shop in Meeting street; he pays defendant $9 per month for wages. The testimony here closed.

The Court charged the jury, that the testimony of the city may be regarded as proving *prima*facie, that defendant was the owner; but it was submitted to them, whether the evidence of Henry Heisembrittle and Bulwinkle, did not rebut the presumption created by plaintiff’s testimony, and proved conclusively, that the defendant was not the owner, but the mere agent of his brother.

If he was the owner, he was amenable to the penalty of the ordinance; if not, he was entitled to an acquittal.

They found a verdict for the city; and the defendants appealed, on the annexed grounds.

*2351. That the penalty inflicted by the Ordinance can only attach to the owner and keeper of a retail Grocery store, and the defendant in this case was proved by two unim-peached witnesses, to have been only the clerk and not the owner and keeper of the store in question.

2. That the Council had no authority under the charter to pass the Ordinance in question.

3. That the verdict was contrary to law and evidence.

*Yeadon,*for motion,

cited City Ordinance, 1 June, 1840. He then commented on. the testimony, said the verdict was contrary to evidence. A clerk cannot be held to be the keeper and owner of a shop.

The Ordinance is against common right. Can the city authorities prohibit shop keepers from keeping liquor in their houses or on their premises *%*

*G. B.*Eckhard, City Attorney, contra.

The recorder submitted the case very fairly for the defendant, and it being a question of fact alone for the jury, this Court will not interupt their finding.

Mr. E. contended that this defence was a specious one, and but little reliance should be placed upon the evidence on the part of the defendant. Upon the 2nd ground he said, that the City Council had the right to pass the ordinance, and that it was constitutional. These shops are dangerous. Burglaries, arsons, (fee., are traced to these shops ; they are matters of record.

This ordinance was produced from necessity. Without this, an illicit traffic with slaves would be carried on by those shop-keepers.

Upon the powers of the City Council, under the City Charter, cited the City Charter, Stat. at Large, vol. 7, p. 8. 1 McM. 326, *Kenedy vs. Bowden.*

*Curia, per*

Evans, J.

As to the first ground in the brief, whether the defendant was the owner of the shop, that question was settled by the jury, on what I would regard satisfactory evidence. The second ground presents a grave question, as to the power of the City Council to *236pass the ordinance under which the defendant was convicted. I think there can be no question, that the restraints imposed by this ordinance, are within the ordinary powers of legislation. There is nothing in the restrictions imposed by the constitution of this State, or of the United States, which restrains the. Legislature from passing a general law like the one under consideration, or from granting the power to do so to the municipal corporations within the State; so that the only question is, whether the right to pass this ordinance has been granted to the City Council.

, By the Act of 1783, 7 Stat. 98, the City Council of Charleston, among other things, are vested with the power to pass “ every bye law or regulation that shall appear to them requisite and necessary for the security, welfare and conveniency of the said city, or for preserving peace, order and good government within the same.” All such bye laws are by a subsequent part of the same Act, subject to the revisal, alteration or repeal of the Legislature. Under this general power, the ordinance which *the*defendant has violated, was- passed. The ordinance is in these words*.*Be it ordained, (fee. that no person or persons, now or hereafter owning and keeping a retail grocery store within the city, where meat, grain, fruit, provisions or other articles are exposed for sale; not having a license from the City Council of Charleston in force, to retail wine, malt or spirituous liquors, shall be permitted to keep in such shop, or in any inner room adjacent thereto, or on the premises connected with such shop, any wine, malt or spirituous liquors, (fee ”

The general powers of legislation, on all matters connected with the security, welfare *and conveniency of the*city, and for preserving peace and order and good government within the same, it seems to me, are sufficiently comprehensive to cover the ordinance in question. It is, no doubt, one of the many restraints imposed on the liberty of the citizen, to prevent, if possible, the vending of spirituous liquors to slaves.. Such regulations are sometimes apparently tyrannical; but they must be submitted to as necessary police regulations. If they are tyrannical and unnecessary, the popular will can repeal them through the City Coun*237cil, or if redress should fail there, by an appeal to the Legislature.

The motion is dismissed.

We concur. J. S. Richardson, John Belton O’Neall, A. P. Butler.

*Wardlaw & Earle,*absent.