Mathew O'Driscoll against Maurice Viard, 2 Bay 316

The Judges expressed their concern, that the clause in the act of 1799 was so obscurely penned, that it was really difficult to tell what the true intent and meaning of the legislature was ; whether it was to restore the old method of granting tavern licenses by the clerks of the courts of sessions in the districts, as established by the act of 1784, or to retain it under the sole authority of the commissioners of the highways, as directed by the act of 1789 ; one thing, however, is certain, that their intention was to retain the power of nominating and recommending fit and proper persons for keeping public houses in the hands of the commissioner of the roads, instead of restoring it to the magistrates who formerly possessed it; but the difficulty was, in determining who were the persons to make out and issue these licenses to publicans of every description.

It is to be observed, that the act of 1784 is a public law in aid of the revenue of the state ; it fixes the mode and manner of making out these licenses, and designates the clerks of the courts of general sessions of the peace, as the proper persons for that purpose. It also fixes and ascertains the fees to be paid upon every license, and likewise imposes a penalty for breach of the law; both the acts of 1789 and 1799 are silent on all those points.

The judges, therefore, were of opinion, that it was best to make some fixed and certain law upon the subject the rule of their decision, rather than to speculate upon new principles, which were in their nature hypotheticalas that the clerk of the board of commissioners of highways was meant and intended as the proper persons, to make out tavern licenses, See. who were persons unknown in law, and altogether dependant on the wili of the commisioners of highways for their appointment and continuance in office, and who were removable at their pleasure ; they therefore thought it the safest, and best way, to make the law of 1784 the rule of their decision, which was the only general law in force which fully embraced this subject.

They were, therefore, unanimously of opinion, that the clerks of the general sessions of the peace, in the different districts through the state, (in pursuance of the orders and recommendations of the commissioners of the high roads in each district,) were the proper persons to make out and issue all those licenses, and to receive and account for the fees, £kc.

The clerks’ offices were public ones, where all the recommendations are to be filed, and all recognisances, and securities for good behaviour are to be taken and deposited, and all other documents are preserved, which go to the maintenance of peace and good order in the community, and where all prosecutions are carried on, and penalties received for breaches of the law. The postea was therefore ordered to be delivered to the plaintiff, that judgment might be entered up in his favour. Present, Grimke, Waties, Bay, Johnson, Rajisay and 'Trezevant.