W. O. Muller & Co. v. Commissioners of Buncombe County

Asi-ib, J., after stating the facts. The only question presented by the appeal in this ease for our determination is, whether the board of commissioners of a county, under The Code, §3701, have any discretion in the granting license to retail spirituous liquors by a quantity less than - 'rt, when the applicant has complied with the requirements of the act by proving a good moral character. *175 In the investigation of the question it is necessary to review the history of the legislation-on the subject to come to a just and satisfactory conclusion. The first act on this subject was the act of 1825, oh. 1272, §§2 and 3, amended by the act of 1828, ch. 10, combined in the Revised Statutes, ch. 82, §7, -which enacts that every person ■yfishing.to retail spirituous liquors by a measure less than -a quart shall apply to the court of pleas and quarter sessions of the county iu which he resides, to obtain an order therefor, which -order shall be granted by the said court, seven justices being on the bench, only to such free white persons as. shall satisfactorily ■show to the court their good moral character by at least two witnesses of known responsibility, to whom the character of the applicant has been known for at least one year. This act was followed by the provision in the Revised Code, ch. 79, §6, which amended the Revised Statutes, ch. 82, §7, by requiring that the place should be designated in the -application for license-and omitting the residence of the applicant. Then came the act of 1872-’73, ch. 144, schedule B, §11, which omitted the designation of the place and the proof of good moral character, and provided that the commissioners may grant license at their option, and by section 8, schedule C, repealed all former'laws on the subject. And this act was amended by the act of 1881, ch. 116, §26, only in the particular of substituting the word “gallon” in place-of “quart,” and this act, as amended, was again amended by the act of 1883, ch. 10, which struck out- the word “gallon” and restored “quart.” Then, upon the x-atification of The Code, the act of 1872-’73, as amended by the acts of 1881 and 1883, was impliedly repealed by section 3701 of The Code, which declares that “every person desiring to sell spirituous or malt liquoi’s, wines, cordials or ■bitters in quantities less than a quart, shall, before engaging in the said sale, file his petition stating the place and house in which he proposes to retail, and obtain an order from the board of com *176 missioners of the county to grant him a license to retail at that place, which order they shall grant to all properly qualified applicants. From this brief history of the legislation on the subject of traffic in liquors, it will be seen that the law has been changed, from time to time, in accordance with the fluctuations of popular sentiment. But the last expression of the legislative intentioh, as declared in The Code, §3701, restored the law as provided in the Revised Code, oh. 79, §6. The Code, §3701, is so variant from and inconsistent in its provisions with those of the act of 1872 — ’73, and the several statutes amendatory thereof, that they ai-e necessarily repealed by implication; and the effect of that repeal is to revive section 6 of chapter 79 of the Revised Code, so far as the provisions of that section are not repugnant to those of the former. Upon comparing these sections, so far from there being any repugnancy, they are substantially the same in their provisions. In each section it is provided that the applicant shall obtain an order; in one case, from the county court, seven justices being present; and in the other, from the board of commissioners, designating the place where it is proposed to retail, and upon showing they are properly qualified (that is, by proving a good moral character), a license shall be granted, omitting in the last act the words “free white persons.” The two sections then, being in pari materia, are to be construed together. State v. Melton, Busb., 49; State v. Woodside, 9 Ired., 496. It will however be noticed that the section of the Revised Code here referred to is the same as section 7, chapter 82 of the Revised Statutes, with a slight modification. It is in fact a re-enactment of that section in toiidem verbis, except that the former act dispenses with a residence of the applicant in the county, and required that the place where it was proposed to retail should be designated. The change was immaterial so far as it affected the-substance of the section in the Revised Statutes. *177 This then brings us to the main point in the case. What is the proper construction of The Code, §3701, in reference to the question presented by the appeal? The section being substantially the same as that contained in Revised Statutes, chapter 82, §7, whatever construction was given to that section must be given to this, and a construction was given to it by Chief-Justice RuffiN in an able and elaborate opinion in the case of Attorney-General v. The Justices of Guilford county, 5 Ired., 315. And Sir Edward Coke has said: “ Great regard ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time or soon after it was made, put upon - it, because they were best able to judge of the intention of the makers at the time when the law was made.” In that case the applicant claimed that when lie complied with the requirements of the act by proving a good moral character, the justices were bound to grant him license, and they, on the other hand, contended that they had, by a proper construction of the act, an unrestricted discretion to grant or refuse a license. The chief-justice was of the opinion that neither construction was correct, that “the legislature meant neither extreme, but the mean between them.”' He said: “ It is clear, as it seems to us, that the justices have not, by the just construction of the law, the arbitrary power of suppressing all places for the retailing of spirituous liquors. On the other hand, we hold they are not entirely without discretion as to be bound to license any applicant, though he be qualified. It is true there is no express grant of discretion go nomine in the 7th section of the Revised Statutes, nor is it to be found in the acia of 1825 or 1828 which are combined in that section. But the very requiring a license, and the presence of so many magistrates at the granting of it, imports a duty of judging whether the supply of retailers is adequate to the accommodation of the public. Not indeed upon the arbitrary principle thatthe people ought not to be allowed any, but upon the principle of the legislative policy that they shall have those accommodations accord *178 ing to the demand the justices really believe will be made by those of the people who repair to such places ‘for their relief/ as the statute of Edward expresses it. So too, there are situations in which it would be so unseemly that a tippling-housc should be set up, that all men would be shocked at one’s being licensed there; as literally, at a church door or school-house, or even so near a court-house as to incommode the court in the dispatch of business.” So we here have what may be considered a contemporaneous construction of the section in question; and it is to the effect that the commissioners have a limited discretion; and in judging whether a license should be granted in any case, that they may take into consideration the questions whether the demands of the public require an increase of such accommodations, and whether the place where it is proposed to establish a retail shop is a suitable one. This is all the board of commissioners have done in this case. They had already granted license to some five persons or firms in the town of Asheville, which in their judgment was amply sufficient to afford accommodations to all such as might be disposed to seek “relief ” at such places, and they believed that the place designated in the petition was an unfit location for such an establishment, being situate on a street principally occupied by the inhabitants of the town for private residences, in sight of three churches, not more than one hundred yards from the nearest and not exceeding two hundred from the farthest: a street through which a large portion of the citizens passed in going to and from the churches on Sundays and on other days when divine worship is had in them; and the principal street in the town through which the children of both sexes passed in going to and from school. Besides these, which wo think were sufficient reasons for the exercise of their discretion by the commissioners, they offered other cogent reasons why they felt warranted in refusing the license to the plaintiffs. And being of opinion that the boaixl of commissioners exercised a sound legal discretion in refusing to *179 grant a license to the plaintiffs to retail spirituous liquors at the .place designated in their petition for a mandamus, we hold there was no error committed by the court- below, and therefore affirm the judgment. No error. Affirmed.