The defendant is indicted in the Superior Court for the violation of an ordinance of the town of Wadesboro. The defendant insists that the Court has no jurisdiction of the offence charged, and that His Honor erred in his instructions to the jury.
I. The jurisdiction. The ordinance was passed in May, 1873, and prohibits the sale of spirituous liquors within the town in the quantity of a quart or less, without the license of the Mayor and the payment of twenty-five dollars, under a penalty of ten dollars or ten days imprisonment. The *Page 18 State claims that the violation of this by-law is indictable in the Superior Courts by virtue of Bat. Rev., ch. 111, § 31, which section is thus worded: "Any person or persons violating any ordinance of any city or town of this State, shall be deemed guilty of a misdemeanor, and shall be subject to the provisions of this chapter."
Whether the Legislature meant by this act to confer upon the municipal corporations which created the offenses, the jurisdiction to try the offenders, or upon the Superior Courts, is a question admitting of no doubt. The penalty for violating the ordinance is fixed within the limits of the Justice's jurisdiction, and by consequence the jurisdiction of the Superior Courts is expressly excluded by the Constitution. Art. IV. §§ 33-15. But it is insisted by the State, and His Honor so held the law to be, that when the Statute declared the violation of a town ordinance to be a misdemeanor, without limiting the punishment within a Justices jurisdiction, that the punishment of the offence was at the discretion of the Court, and the Superior Court therefore had exclusive jurisdiction. If this be so, it was superflous in the town to affix a penalty to the violation of the ordinance. The corporation has no jurisdiction and therefore cannot enforce it, and the Superior Court, because it has jurisdiction cannot notice it! The jurisdiction cannot be concurrent, because they have not the same power of punishment. A plain principle governs the case. It is this: municipal laws must be executed by the municipality itself, unless some statute provides expressly otherwise. This is a limitation which rests upon municipal powers. The Legislature, in conferring corporate powers, have selected the depository of the powers which they intended should be exercised and, in doing so have by implication prohibited its exercise by any other agency; Cooley, Const. Lim. 205. It would be manifestly unjust, to impose on the State and County the expense of administering the by-laws of corporations, enacted by themselves for *Page 19 their own benefit, as distinct from that of the community at large.
II. The evidence. The defendant denied the existence of the corporation, or if it existed, he denied that there was conferred upon it the power to enact the ordinance in question. The ordinance was passed in May, 1873. The State was unable to produce the original town charter, but to establish its existence, offered in evidence what purported to be an amended charter of the town, ratified in 1874, and subsequent to the ordinance. This amended charter recites that the original charter was granted in 1825. Admitting that this was evidence of the existence of a charter, prior to the ordinance, it was not evidence, as His Honor held it to be, of the power contained in the lost charter to make this ordinance. Municipal corporations can exercise no powers but such as are expressly conferred, or are essential to the declared purposes of the corporation. Dillon on Mun. Corp. § 55.
The State having failed to show that the original act of incorporation authorized the enactment of this ordinance, failed to make out the case, and His Honor should have so instructed the jury. The Legislature never intended to make the violation of a void ordinance, an indictable misdemeanor.
Other points were presented, but it is unnecessary to review them. SeeTown of Washington v. Hammond, decided at this term. There is error.
PER CURIAM. Venire de novo. *Page 20