McRae v. Wessell, 28 N.C. 153, 6 Ired. 153 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 153, 6 Ired. 153

JOHN McRAE, QUI TAM, &c. vs. JACOB WESSELL.

The Act of Assembly, passed iu the year 3800, imposing a penalty on persons retailing spirituous liquors by the small measure, in the towns of Newbern and Wilmington, -without the permission of the Commissioners of those towns respectively, is a private act, and was not repealed by the general law upon the subject of retailers, passed in the year 1825, nor by tiie act passed in 1836.

‘ Appeal from the Superior Court of Law of-New Hanover Comity, at the Fall Term, 1845, his Honor Judge "Cai.dwell presiding.

This was an action to recover a penalty of #50, for retailing spirituous liquors, contrary to the provisions of an Act passed in the year 1800, in relation to the towns of Newbern and Wilmington. This Act imposed a penalty of fifty dollars upon any person retailing spirituous liquors in either of the said towns, without having first obtained permission from the Commissioners of the said towns respectively, as well as a licence from the County Court. The Act was offered in evidence as a private Act, and the retailing by the defendant fully proved. It was insisted for him in the first place, that the Act in question was a public Act, and therefore repealed by the Act of 1838: And, in the second place, that, if it were a private Act, it was repealed by the general Act of 1825 upon the subject of retailers. ' The jury found a verdict for the plaintiff, subject to the opinion of the Court on these questions. On consideration, the Court was of opinion that the Act of 1800 was a private one, and therefore not affected by the Act of 1836, and that it was not repealed by the general law passed in 1825 on the subject of retailing.

Judgment being rendered on the verdict, the defendant appealed.

Badger, for the plaintiff

No counsel for the defendant.

Daniel, J.

So much of the Act of Assembly of 1800 is to be considered a private Act, which prohibits any person, under the penalty of £25, from retailing spirituous liquors by the small measure in the towns of Wilmington and Newbern, without first having obtained permission, by a certificate from the Commissioners of the said towns, and also, thereafter, a licence from the County Court, because it did not relate to all the citizens of the State. No Judge could be expected ex officio to take notice of it. By the sixth section of the public Act, passed in the year 1825, entitled “ An Act to direct the manner in which licences shall be hereafter issued to retailers of spirituous Eiquors,” it is declared that this Act (of 1825) shall not affect the mode in which licences are now by law directed to he issued, in any of the incorporated towns in this State. We do not think, that this section of the Act of 1325 turned all the then private Acts upon this subject into public acts ; so as to be noticed and acted upon by the Judges, ex officio. We therefore think, that the private character of the Act of 1800, on the subject now before us, was not affected by the public Act of 1825. And in the year 1836, the Legislature declared, that no Act of a private or local nature, shall be considered repealed by ch. 1, s. 8 of the Rev. Statutes. Therefore, the private Act of 1800 is unrepealed, and now in force, so far as relates to the question before us. The judgment of the Superior Court must be affirmed.

Per Curiam. Judgment affirmed.