Spirit of the age. [volume] (Raleigh, N.C.) 1849-1865, 1855-07-25
Opinion of the Supreme Court.

Ihe record in the. present case brings
fairly before US for revision the order ofthe |
justices of the County Court of Wake, |
made at the last February Term, by which
they granted license to the defendant, au.
tsorizlng him to retail spurious liquors for
one year within the limits of the City of Rail-
e'gh (which order we have decided in another
case against the same defendant cannot be
reviewed by the writ Of Certiorari. If the
rora gga1ss.sa b. the ns.ioes be
:" void and of'no y g effect" then The deIen-
dant is liable to them for the penalty claimed
in this suit under the plain provisions of
the 9th section Of the Act of 1850, 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 compos-
ed the Board prior TO the l3lh January 1856.
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 over the Board of Commis-
sloners 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 defendant and the good and orderly.
government of the City of Raleigh, and we
have therefore given it our attentive consid
Grafton. The result Of our reflections is
that the Board commissioners whose term
of office had expired before the sitting of
the County Conrt had no authority to give
the permission upon which the Justices ac-
ted, and that consequently their order gran
ting 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 1903 :;
and may, therefore, iegitimately receive aid
from it, whenever such aid may be necessary
to ascertain its meaning. The fourth sec.
tlon of the amending Act authorizes the
Commissioners the City "to levy.and col
,lect tax not exceeding twenty-five dollars
on every billiard table, nine Or ten pin alley,
victualling house or restaurant, and every
permission 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, g, u 29p9puaIly. How then
az. az .s4ae n : a'tb- er is know how often
ferring 10 the 9Th section $3.50 and col!2es
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 Com
missioners are hereby authorized to lay, levy
and collect annually sax &c. We are
then satisfied beyond doubt that the taxes
authorized by Act of 1850, are to be Levied
and collected annually. But when is the
tax upon permissions to retail, to be paid
As to that, the Act Of 1893 cannot furnisl
any information, because the grant of pei
mission to retail is not of nature to
listed like the taxable property aud poll
therein specified. This tax then may, i
the absence of any provision to the contrary
be demanded when the permission is given
And it is reasonable that it should be SC
because the permission may be applied fo
and obtained at any time during the year
with view to apply for license from th
Justices Of the County Court, provided th
members of the Board which gave i, sha
continue in Office until the court shall sit
Such too is the public law relative to IL
payment Of the tax on the license which Il
Sheriff receives as a part of the public rev
nue.. (See l Rev. Stat. ch. I02, sec 90, az
Act Of 1854, ch. 81, sec, %. par. IA. J An
such we learn is the practical constructie
which has been placed upon the said 4
section of the Act Of 1850. Having thl
ascertained that the Commissioners of Il
City of Raleigh have the power to levy ar
collect tax upon the grant of their perm
sion to retail every year, and not oftene
and to demand payment when the grant
made, we are prepared to understand t
meaning Of the Legislature in the enactme
of the 5th section of the Act. The words a
that it shall not be lawful for the justices
the County Court Of Wake, to grant a
license to retail spirituous liquors within
limits of the City of Raleigh, without t
permission of the Board Of Commission,
first had, and if any license shall be grant
without such permission in writing, attest
by the Clerk Of the Beard Of Commission
first filed with the Clerk of said CouI
Court, such license shall be void and of
effect. The question is, what Board y
the members composing which had g
out of office when the license is granted,
!, one whose members are then in official
istence The Commissioners of the
of Raleigh are political corporate b
having perpetual succession, but that
:, esson is to be kept up by the annual e
s ton of competent persons to fill the OF
,, The Board of Commissioners is the name
u which they are more particularly ca
It when met for the transaction of official t
+ ness. That too is body having perpe
% succession, but the members composir
2 change every year, for though the same
"a dividuals may be re elected for succes
Ii years. yet they have to qualify by Ia
the prescribed oaths before they can
= just as any other persons would have t'
le, Hence we find the distinction between
:. s existing" and "former Board as
nc be seen BY reference to the 18th sectit
'Se the Act Of 1903.
y 1t follows from this, that all such tax
~, are annual can be levied and collected
NJ