delivered the opinion of the Court:
This was an action brought by appellee, before a police magistrate, against appellant, to recover a penalty for the violation of a city ordinance. The ordinance declares that no person who is licensed to retail spirituous, malt or vinous liquors, shall sell or give away to any person under twenty-one years of age, any such liquors, or permit any minor to drink such liquors in his or her saloon, under a penalty of fifty dollars for each offence. A trial was had before the police magistrate, resulting in a conviction and fine. Several motions and objections were made on that trial, which were overruled by the court, but no exceptions were taken to the rulings of the magistrate.
On the trial in the Circuit Court, to which the case was removed by appeal, a motion was entered to dismiss the appeal, and to quash the proceeding, and also, a motion subsequently entered, for atrial de novo, which were overruled, but no exceptions were taken to these decisions. Appellant then offered witnesses to testify in his behalf, but the evidence was rejected by the court below, but no exceptions were taken to that decision. The bill of exceptions, as it is termed, taken before the police magistrate, was read in evidence without obj ection. The court below found the issues, for the city. A motion for a new trial was entered, but was oyerruled by the court, an exception was taken, and a judgment'was rendered against appellant for fifty dollars.
The second section of the fifth article of the charter of the city, (Private Laws, vol. 1, p. 651,) declares that, “the city council may, by ordinance, provide that in all suits brought for the violation of any ordinance, or the recovery of any fine under this act, before the police magistrate, or- other officer, the first process shall be a warrant for the immediate apprehension of the offender, and may further provide, that no change of venue shall be taken from such police magistrate, or justice of the peace, selected by the city as hereinafter provided, and that no appeal shall be taken from any judgment of any such justice of the peace, or police magistrate, except upon bond given, and the proceedings and testimony reduced to writing as a bill of exceptions, signed by said magistrate or other officer, and the appellate court shall try said appeal on the proceedings and evidence embodied in said bill of exceptions,- and none other.”
It does not appear that any ordinance was ever adopted, regulating the practice under this section. And, even if such power may be delegated to a city council, it has not been exercised by them in this case. The legislature has not, by this enactment, professed to prescribe such a practice, and it may be doubted whether, under the constitution of the State, a person can be deprived of the right, on such a trial, to be confronted with the witnesses to prove his guilt, or a jury; but this law only professes to empower the council by ordinance, to make these several changes in the practice; and it is not shown that it has been made. No ordinance'for the purpose appears in evidence. And a matter of such importance, as so radical a change in the general laws of the State, adopted to insure a fair trial, and to attain justice, should not be repealed, and a different mode of trial adopted, unless it appears that such was the legislative intention. But no such construction can be fairly given to this law. The language, from its plain and obvious meaning, does not change the practice, but manifestly says that the city council may. But the question was not preserved by an exception to the ruling of the court below, and is not therefore before us.
The only question saved and presented by the record, is, whether the evidence contained in the minutes returned by the Police Magistrate, sustains the finding of the Circuit Court. The evidence thus adduced, and to its admission no exception having been taken, must be regarded as legitimate and proper; and by it there would seem to be but little doubt that appellant did violate the ordinance. On more than one occasion, and to more than one person, he permitted persons under twenty-one years of age to drink beer in his saloon, contrary to the ordinance of the city.
It is, however, insisted that the evidence fails to show that the beverage denominated beer was malt liquor. It is true, there are various kinds-of beer that are not made by the use of malt, but still it was a question of fact, fairly to be left to the court to determine, whether it might not be inferred that the beer sold and drank was malt liquor. The court below found that it was, and we think the inference was warranted from the circumstances appearing in evidence. It strongly tended to prove that it was malt liquor.
It is again urged, that the evidence fails to show that Appellant had ,a license to keep a saloon, but that it was to his wife. The evidence shows that he applied for the license, that he executed the bond, and did not disclose the fact that the name he signed to the bond was not his, or that the license was for his wife. The city clerk swears that he believed, at the time, that he was issuing the license to appellant; and it appears that the personal pronoun occurring in the bond and license, indicates the masculine gender. We must, therefore, conclude that the license was, granted to him, without regard to the name in which he had it issued, or the name he signed to the bond. It was, no doubt, contrived for the purpose of evading the ordinance, or he would have disclosed the fact that he wished to procure the license in the name of his wife; but he is as fully bound by his acts, as though he had given his note or other obligation by the same name.
From all of the evidence in the case, we are of the opinion that the court below was warranted in rendering the judgment which it did, and it is affirmed.
Judgment affirmed.