In re Oliver

• Decision Date: 26 June 1884
• Citation: In re Oliver, 21 S.C. 318 (S.C. 1884)
• Parties: INFORMATION v. OLIVER. SAME v. SAME. SAME v. SAME. SAME v. SAME.
• Court: South Carolina Supreme Court

21 S.C. 318

INFORMATION v. OLIVER.

SAME v. SAME.

SAME v. SAME.

SAME v. SAME.

Supreme Court of South Carolina.

June 26, 1884

1. Where, in an information in the City Court of Charleston for doing business without the prescribed license, it substantially appeared that the proceeding was in the name of the State, the objection that there was no plaintiff was properly overruled.

2. The proper time to object to evidence is when it is offered.

3. An ordinance of the City Council of Charleston may, without proof, be brought to the attention of the municipal courts of that city.

4. Under information for carrying on a business without the license required by a city ordinance, the prosecuting attorney proved that defendant had carried on such business but did not prove that defendant had no license. Held , That defendant was properly convicted, the burden of proof as to the license being on him.

5. An act of the legislature authorizing a municipal corporation to impose a license tax upon business occupations does not violate sections 12, 14, or 41, of article I., nor section 33 of article II. of the constitution of this state.

Before PRINGLE,Recorder, Charleston, July, 1883.

The opinion fully states the four cases.

Mr. W. M. Thomas , for appellant.

Mr. Geo. D. Bryan , contra.

OPINION

MR JUSTICE MCGOWAN:

These were informations in the City Court of Charleston for alleged violations of ordinances of the city, two for carrying on the business of publishing a newspaper and the other two for carying on the business of a job hand printer, without having paid the license required therefor. The cases involving the same points were heard together, and will be so considered, what is said in one being understood as applying to all the cases.

The report of the recorder was follows:

" STATE OF SOUTH CAROLINA,

County of Charleston,

City of Charleston.

In the City Court .

At a stated term of the City Court of the city of Charleston, for the city of Charleston, begun and holden on the first Monday of September, in the year of our Lord one thousand eight hundred and eighty-two, Geo. D. Bryan, corporation counsel for the city of Charleston, comes into court here, and upon his oath of office, gives said court to understand and be informed, that W. J. Oliver, late of the city of Charleston, state aforesaid, on the 28th day of February, in the year of our Lord one thousand eight hundred and eighty-two, and on divers other days in said year at Charleston, in said state of South Carolina, and within the jurisdiction of this court, was the publisher of a newspaper worked by hand, and unlawfully did carry on the business of publishing a newspaper worked by hand without having paid the license tax therefor, imposed by the ordinance of the city of Charleston, entitled ‘ An ordinance to regulate licenses for the year 1882,’ ratified the 27th day of December, A. D. 1881, as in that behalf required by the said ordinance, contrary to the said ordinance, and against the peace and dignity of the state of South Carolina.

" G. D. BRYAN,

" Corporation Counsel City of Charleston ."

Indorsed:

" THE STATE OF SOUTH CAROLINA

Charleston County, City of Charleston.

In the City Court .

On hearing the above information, and on motion of G. D. Bryan, corporation counsel,

It is ordered , That the same be filed and the case fixed for trial on the first Monday of November, A. D. 1882, at 10 o'clock a. m., and that a copy of said information and this order be forthwith served upon the said W. J. Oliver. October 14, 1882, W. Alston Pringle, recorder, **** The case was finally fixed for trial on July 2, 1883, and was tried before a jury empannelled and sworn according to law. The corporation counsel, in proving his case to the jury without objection, read the following sections of an ordinance, entitled ‘ An ordinance to regulate licenses for the year 1882’ :

Section 1. Be it ordained by the mayor and aldermen of the city of Charleston, in city council assembled, That every person, firm, company, or corporation engaged in, or intending to engage in, any trade, business, or profession hereinafter mentioned, shall obtain, on or before the 20th day of January, A. D. 1882, a license therefor, in the manner hereinafter prescribed. Any person, firm, company, or corporation, commencing business after the said 20th day of January, A. D. 1882, shall obtain a license therefor before entering upon such trade, business, or profession.

Sec. 3. If any person or persons shall exercise or carry on any trade, business, or profession, for the exercising, carrying on, or doing of which a license is required by this ordinance, without taking out such license as in that behalf required, he, she, or they shall, besides being liable to the payment for the license, be subject to a penalty equal to fifty per cent. of the amount required to be paid for the license, to be sued for and collected in this city court, or any other court of competent jurisdiction, or to imprisonment not exceeding thirty days, as may be adjudged by the recorder or court trying the case.

Sec. 11. Class 54. Papers worked by hand, $25.

The corporation counsel examined O. R. Levy and Sol Blank, who testified as to the defendant publishing the newspaper called the ‘ Charleston Mercury,’ and put in evidence copies of the said newspaper (of dates August 3, 1882, September 13, 1882, December 11, 1882, November 9, 1882, and August 12, 1882,) in all of which the name of W. J. Oliver was published and appeared as editor and manager. No evidence for the defendant. I therefore charged the jury that this was a question of fact, which remained with them to determine. That if from the evidence they found that the defendant did publish a newspaper worked by hand without a license, they would find him guilty, otherwise not guilty. The jury found a verdict of guilty.

On the 7th of July, 1883, the defendant, through his counsel, moved for arrest of judgment and for a new trial, both of which were refused and the defendant sentenced ‘ to pay the sum of thirty-seven dollars and fifty cents, or thirty days in jail-county jail of Charleston, & c.

(signed)

W. ALSTON PRINGLE,

" Recorder ."

From this sentence the defendant appealed to this court upon the following grounds: " 1. There was no plaintiff. 2. Because the city ordinance was not proved. 3. Because the defendant was not proved ‘ not to have paid’ for a license, or to have received none. 4. Because this license law is unconstitutional as in violation of article 1, sections 12 and 14, of the state constitution. 5. Because the information being lodged in 1883 and the offences alleged in 1882, another remedy was provided by the city ordinances. 6. Because the defendant having already been tried by a jury for these offences, and verdicts rendered, he cannot be tried a second time. Exceptions five and six were properly abandoned in the argument here.

First. It is claimed that there was no plaintiff. This objection goes more to the form than the substance. The proceeding was in the City Court of Charleston in a case arising under an ordinance of the City Council. In such case the City Council and the recorder have the right to regulate the practice under section 2131 of the General Statutes , which provides as follows: " It shall be lawful for the City Council and the said recorder to prescribe, and from time to time to regulate, the practice of the said court, and of the attorneys therein, conformably to this chapter, and as nearly as may be to the forms and rules used in the Circuit Courts of this state, and the proceedings shall be the same substantially in like cases, except in cases for the violation of ordinances when imprisonment is imposed in addition to, or in the alternative of, a fine, in which cases the prosecution shall be in the form of an information on the official oath of the corporation counsel." In accordance with the above provision this was an " information on the official oath of the corporation counsel."

An information is the declaration of the charge or offence against any one at the suit of the king, filed by a public officer, without the intervention of a grand jury. State v. Starling , 15 Rich. , 132. Although the title of the information was not endorsed on the information, there can be no doubt that it was in the name of the state. The information both commences and ends in the name of the state, and sets forth that the offence charged was " against the peace and dignity of the state of South Carolina." It has been held with reference to a writ of venire , which must issue in the name of the state, that " if it anywhere appears in the writ that it issued in the name of the state, there is a sufficient compliance with the constitutional requirement; and surely the mere location of the words upon the paper can have no special virtue. Nor can the addition in the caption of the words ‘ county of Spartanburg’ impair the validity of the mandate, for they may well be regarded as mere surplusage." State v. Hill , 19 S.C. 441; State v. Gilreath, Ibid , 603.

Second. The point is made that the city ordinance was not proved. In presenting the case to the jury, it was read without objection. The proper time to make objection is when evidence is offered. Burris v. Whitner , 3 S.C. 510. Besides, this proceeding was in the City Court of Charleston, and in that court it was no more necessary to offer proof of a public ordinance, under the seal of the city council, than in the courts of the state to prove a public act of the legislature. Municipal ordinances are private laws when brought before the superior judiciary of a state, but not when brought before a city court. 1 Whart. L. Evid. , § 293.

Third. Objection is...