The opinion of the Court was delivered by
Mr. Chiеe Justice Gary. We approach the solution of the question under consideration with a full appreciation of our responsibility and its far-reaching consequences throughout the country. And we shall brush aside technical objections and endeavor to rest our conclusion upon such well settled principles as must be given recognition by all, except those in favor of judicial legislation.
This is an application to the Cоurt, in the exercise of its original jurisdiction, for an order enjoining the defendant from enforcing the following regulation adopted by the defendant, to wit: “No intoxicating liquors should be received for or delivered at destination in the State of South Carolina, except when addressed to- county dispensaries established by law. If any prohibited shipment should reach destination in South Carolina, they must be returned by first express to- consignor, subject to chаrge both ways.” * * *
The determination of 'the plaintiff’s right to relief for which he prays-, is dependent upon the construction of what is denominated the Webb Act, in connection with the statutes of the State, which was recently adopted by Congress, and is as follows:
“An act to- divest intoxicating liquors of their interstate commerce character, in certain cases.
“Be it enacted by the Senate and House o-f Representatives of the United States of America, in Congress assem *446 bled, That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, territory or district of the United States, or place noncontiguous to, but subject to the jurisdiction thereof, into any other State, territory or district of the United States, or place noncontiguous to, but subject to the jurisdiction thereof, or from any foreign country into' any State, territory or district of the United States, or place noncontiguous to, but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented or other intoxicating liquor is intended by any person interested therein, to be received, possessed', sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, territory or district of the United States, or any place noncontiguous to, but subject to the jurisdiction thereof, is hereby prohibited.”
Before proceeding to construe said act, it may be well to state, in a general way, the previous law in regard to the transportation of alcoholic liquors fronn one State into another.
In 1890 Congress passed an act, entitled, “An act to limit the effect of the regulations of commerce between the several States and with foreign countries, in certain cases.” This was known as the “Wilson Act,” and its provisions were as follows: “That all fermented, distilled', or other intoxicating liquors or liquids transported into any State or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or territory, be subject to' the operation and effect of the laws of such State or territory, enacted in the exercise of its police powers, to thе same extent, and in the same manner, as though such liquids or liquors had been produced in such State or territory, and shall not be exempt therefrom, by reason of being introduced therein, in original packages or otherwise.” 2G Stat. U. S. 313.
*447
In the case of
Rhodes
v.
Iowa,
In the case of
Scott
v.
Donald,
The Court in the case of
Vance
v. Vandercook,
“(a) Beyond dispute the respective States have plenary power to regulate the sale of intoxicating liquors within their borders, and the scope and extent of such regulations depend, solely, on the judgment of the law-making power of the States, provided, always, they do not transcend the *448 limits of the State authority by invading rights, which are secured by.thе Constitution of the United States, and provided, further, that the regulations as adopted, do not operate a discrimination against the rights of residents or citizens of other States of the Union.
“(b) Equally well established is the proposition that the right to1 send1 liquors from one State into' another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a State law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States.”
In reply to* the argument that the South Carolina statute then under consideration, was not discriminatory, for the reasons therein relied upon, the Court further said: “But the weight of the contention is overcome when it is considered that the interstate clause of the Constitution guarantees the right to ship merchandise from оne State into another, and protects it until the termination of the shipment, by delivery at the place of consignment; and this right is wholly unaffected by the act of Congress which allows State authority to attach to- the original package before sale, but only after delivery. It follows that under the Constitution of the United States every resident of South Carolina is free to receive for his own use, liquor from another State, and that the inhibitions of the Stаte statute do not operate to prevent liquors from other States from being shipped into such State, on the order of a resident for his use. * * * The right of persons in one State to ship liquor into another State, to a resident for his own use, is derived from the Constitution of the United States, and does not rest on the grant of the State law.’ (Italics added.)
In the case of
Louisville etc.
v.
Brewing Co.,
The Court said: “The legality of the attitude of the railroad company toward interstate shipments of intoxicating liquors to local option points in Kentucky, must turn upon the validity of that legislation as applied to' interstate shipments.
“By a long line of decisions, beginning even prior to
Leisy
v.
Harden,
“(a) That beer and other intoxicating liquors are a recognized and legitimate subject of interstate commerce.
“(b) That it is not competent for any State to forbid any common carrier to transport such articles from a consignor in one State to' a consignee in another.
“(c) That until such transportation is concluded by delivery to the consignee, such commodities do' not become subject to State regulation restraining their sale or disposition.
“The Wilson Act (26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), which subjects such liquors to State regulation, although still in the original packages, does not apply before actual delivery to such consignee, where the shipment is interstate. Some of the many later cases in which these matters have been so determined and the Wilson Act construed are Rhodes v. Iowa,170 U. S. 412 ; Vance v. W. A. Vandercook Co.,170 U. S. 438 ; Heyman v. Southern R. Co.,203 U. S. 270 , 7 A. & E. Ann. Cas. 1130; Adams Exp. Co. v. Kentucky,214 U. S. 218 .
“Valid as the Kentucky legislation undoubtedly was as a rеgulation in respect to intrastate shipments of such articles, it was most obviously never an effective enactment, in so far as it undertook to regulate interstate shipments to dry points.”
*450
In the case of
State
v.
Rookard,
87 S. C. 443,
' The Court said: “It seems clear that the statute can not lie so construed. Such a construction would make the act self-destructive; for other sections of this act, as well as portions'of'the dispensary statute of 1907, recognized by this statute as still of force, provide for the sale of liquor by county dispensaries; and certainly a legal sale and purchase carries the right to thе purchaser to keep in his possession the liquor he has purchased, provided he does not apply it to an unlawful use. In addition to this, one may lawfully keep- in possession liquor-purchased for personal use, under thé protéction of the interstate commerce clause of the Federal Constitution. An attempt by the General Assembly to interfere with this right would be futile, and the presumption is very strong against the legislative intention to make such an attempt. Indeed, the right to- keep in possession-liquor so purchased is expressly recognized in section 28 of the Dispensary Act of 1907, which has not been repealed.”
Under the laws of this State, each county is- empowered to exercise what is commonly known as the right of local option, for the purpose of -determining whether liquors or beverages may be sold therein, by the county, through an officer called a dispenser, in the manner provided by the statute.
Elections for the purpose of determining such question were held in the respective counties, and as a result the county of Richland (in which the city of Columbia is situate) and five other counties voted for the sale of alcoholic liquors, and there are dispensaries at this- time in those counties.
*451 This case arose in Richland county.
Section 794 of the Criminal Code provides that “all alcoholic liquors and beverages, whether manufactured in this State or elsewhere, or any mixture by whatsoever name called, which, if drunk to excess, will produce intoxication, are hereby declared to be detrimental, and their use and consumption against the morals, good health and safety of the State and contraband.” * * *
Section 814 of the Criminal Code is as follows: “All fermented, distilled or other liquors or liquids containing alcohol, transported into this State, or remaining herein for use, cоnsumption, storage, or other disposition, shall, upon introduction and arrival in -this State, be subject to the operation and effect of this law to the same extent and in the same manner as thought such liquors or liquids had been produced in this State.”
Section 835 contains the following provisions: “No person except as expressly permitted in this chapter, shall bring into' this State, or transport from place to place in this State, by wagon, cаrt or other vehicle, or by any other means or mode of carriage, any liquor or liquids containing alcohol, under a penalty of one hundred dollars, or imprisonment for thirty days for each offense, upon conviction thereof as for a misdemeanor. * * * Provided, That said penalty shall not apply to' any liquor in transit, when changed from car to car to facilitate transportation across the State: Provided, further, That this, section does not aрply to liquors in course of shipment to' a county dispensary, or purchased from a county dispensary and being' transported for a lawful purpose to some place in a county where there is a dispensary and their delivery is otherwise lawful. All liquors in this State, except those purchased from a county dispensary for a lawful use, and those passing through’ this State, consigned to points beyond this State, shall be deemed contraband, аnd may be seized in transit without warrant. And any steamboat, sailing vessel, railroad, express com *452 pany or other common carrier transporting or bringing into this State, alcoholic liquors for sale or use therein, except by the dispensary, shall suffer a penalty of five hundred dollars.” * * *
From the foregoing it clearly appears that the provisions of the dispensary law, in so far as they attempt to prohibit the importation of liquor into the Statе from another State for personal use, were unconstitutional when the statute was enacted. It was because of this fact that liquors for personal use have been permitted to be brought from another State into a county, even after the sale and use of liquor had been prohibited therein, as the result of an election, under the local option laws.
We next proceed to- determine whether the provisions of thе dispensary statutes which we have declared were unconstitutional, became operative after the adoption of the recent act of Congress.
The removal of the constitutional objections to a statute that rendered it null and void, does not, by operation of law, give it force and effect, nor can it be made valid by a subsequent statute.
One reason why vitality cannot be imparted to- an unconstitutional statute is, that after the objections that rendered it null and void are removed, it might have an entirely different effect from what it had when it was enacted. Eet us take the present case as an illustration.
When the elections were held under the local option laws of 1907, for the purpose of determining- whether the sale of liquor should be permitted or prohibited in the respective counties, the electors were presumed to- kno-w the lаw. Prior to that time the United State Supreme Court had rendered a decision in
Vance
v.
Vandercook,
Even when the liquor was imported for personal use into a county where the sale thereof was absolutely prohibited, the liquor was not subject to seizure.
The fact that an elector may have been willing to vote against the sale of liquor in a county, except when it was imported therein from another Statе for personal use, does not necessarily show that he would be willing' to vote against the sale of liquor therein, when he knew that he could not import it, for that purpose.
“When a statute is adjudged to be unconstitutional, it is as if it never had been. Rig'hts can not be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished fоr having refused obedience to it before the decision was made. And what is true of an act void in loto, is true, also-, as to- any part of an act which is found to be unconstitutional, and which, consequently, is to- be regarded as having never, at any time, been possessed of any legal force.” Cooley’s Con. Lim. 222.
“Courts are bound to treat unconstitutional enactments as void, in whatever proceedings they may be encountered. An unconstitutional statute, though having the form and name of law, is in reality no law.”
Ex parte
Hollman, 79 S. C. 9,
“The pivotal point in a healing or validating statute is, that it must be confined to- acts
which the legislature could previously have authorized.”
(Italics added.)
State
v.
Whitesides,
30 S. C. 579,
“Although necessarily retroactive, curative acts are not for that reason invalid; for the general rule is that the leg
*454
islature can validate any act which it might
originally
have authorized.” 26 Enc. of Raw, 698-9;
Hodge
v.
School District,
80 S. C. 518,
In the case of the
State
v. Tufty,
In denying the application for a writ of mandamus, the Court used this language:
“■It is a misnomer to call such an act a law. It has no binding authority, no vitality, no existence. It is as if it had never been enacted, and it is to -be regarded as never having been possessed of any legal force or effect. The act being void, no subsequent adoption of an amendment to the Constitution authorizing the lеgislature to provide for such investment would have the effect to' infuse life into a thing that never had an}? existence.”
In the case of
Vance
v. Vandercook,
It was not the intention of thе Webb Act to interfere with the policy of the State in regard to- the importation of liquors, but merely to- provide that the enforcement of a State statute would not be interfered with or hampered by the interstate commerce laws.
In other words, the act in this respect is passive, while it is incumbent on the States to enact legislation of an active nature if they are desirous of prohibiting- the importation of liquors for personal use or other purpose. But even if Congress had undertaken to give validity to an unconstitutional State statute, it would have been beyond its powers.
While the legislature cannot pass an act validating the provisions of the dispensary statute, which we have declared to be unconstitutional, so as to give it a retroactive effect, it nevertheless has the power to adopt a statute with similar provisions, having a prospective effect prohibiting alcoholic liquors from being imported into this State.
Such a statute would not contravene any provision of the United States Constitution. As we have already said, the recent act of Congress divests intoxicating liquors of their interstate commerce character, and invests the respective States with power, either to prohibit the importation absolutely or allow it only for sale and use through a dispensary. The classification of the counties, so as to allow *456 the sale of liquor in some of them, while it is prohibited in others,’ would not be violative of section I of the Fourteenth Amendment to the Constitution of the United States, which provides, that no- State shall deny to any person within its jurisdiction the equal protection of the laws.
The rule is thus stated in
Ohio
v. Dollison,
These conclusions render unnecessary the consideration of the question whether the Webb Act is constitutional.
It is the judgment of' this'Court that the petitioner is entitled to the order of injunction for which he prays.
I concede that the above statement so strongly made, is correct, but I dissent from the judgment. The regulation complained of in the petition refers exclusively to interstate commerce, and I think this Court has no* jurisdiction to interfere.