76 F. 554 | U.S. Circuit Court for the District of South Carolina | 1895
This case comes up by way of petition in the main cause. The petition, in substance, sets forth that the petitioner, some time after the order and injunction in this case, purchased from a merchant in Statesville, N. C., a package of whisky, and imported it into this state by the Southern Express Company; that the whisky was bought and imported and intended for his own personal use and consumption, in no way for sale, barter, or exchange; that he is a bachelor, living in.rooms, and, having no convenient home, he is a member of the Columbia Club; that, using his privileges as a member, he placed this package in one of the clubrooms, in the care of the steward, and, after using a part of ii for himself, he was converting the remainder into what is known as “cherry bounce,” to be used by himself; that, while it was so in this room of the club, the respondents, on or about the 17th of August last, seized and carried it away, notwithstanding that the labels and marks on the packages showed that its contents were the product of and imported from another state into this
Two of the respondents—Morehead and Strickland—are policemen of the city of Columbia. In their return they say that, under the instructions of the city council and of the mayor of Columbia, they obey all requisitions made upon them by state constables who are charged with the duty of enforcing the dispensary law, to the extent of accompanying them, and of seeing that the peace is preserved; that this was their position at the time of the seizure complained of; that they knew that their co-respondents had a search warrant; that they had no part of duty in the seizure. The other respondents—J. T. Speed, S. G. La Far, and A. T. Davis—are state constables; J. T. Speed being a chief constable. In tbeir return, after interposing a formal defense denying tbe validity of the order of injunction, and the right of the petitioner to the protection thereof, as be was not a party in tbe main cause, and disclaiming any attempt or desire to violate the order of this court, they proceed to state the facts connected with the case: That they had been informed that whisky was stored in the clubroom of the Columbia Club; that persons habitually resorted to these rooms for the purpose of drinking; that one of them,—S. G. La Far,—on this information, applied for and obtained a search warrant from Trial Justice Troy; that they executed the warrant by entering the rooms of the clubs; that they found rooms contained billiard and pool tables, and another room in which was a bar counter, bar fixtures, sideboard, and all appliances usually kept in a bar room; they found four bottles of whisky under the counter of the bar, and within tbe bar beer bottles on ice; that they found a large case, containing .small compartments, locked, and in many of these compartments were bottles, — one or more quart and pint bottles; that in a small room they found three kegs of cherry bounce, one marked in the name of the petitioner, and two in the name oí A. E. Gonzales; that, acting under the law, they took possession of all the liquor found, made an inventory of the same, and delivered them to F. M. Mixson, chief dispenser. F. M. Mixson, in his return, takes the same formal objection as bis co-respondents, the constables, and then goes on to say that he admits the delivery to him of the package of liquor marked in the name of petitioner; that this delivery was made to him as state commissioner, under the dispensary law of South Carolina; that he received it. in the discharge of his duty; that no demand has ever been made upon him for the package, and that he has never refused to deliver it to the rightful owner.
Ordinarily, the only questions which arise in cases of this character are: Was the liquor seized the property of the petitioner?
It has been earnestly insisted that the' Columbia Club comes within the provision of sections 21 and 22 of the dispensary law. Section 21 has no application to this case. It punishes criminally any one who, by himself or with others, keeps a club or other place where liquors are received or kept for use, barter, or sale as a beverage. It has no further application. But the proof is clear that the club has no connection whatever with the keeping, dispensing, distributing, furnishing, giving away, or selling of liquors, directly or indirectly, and that it is neither within the letter nor spirit of the mischief against which this act is directed. It is difficult to see by what motive this raid on the club was actuated. The excuse given by the constables,- or some of them, that one man or another asked why they raided blind tigers and brothels and did not raid the Columbia Club, and that, therefore, they raided the club, conceals some undisclosed motive. Be this as it may, in this case and in this jurisdiction the raid on the club cannot be noticed except so far as it bears upon the complaint of the petition, and may excuse the action of the respondents. Prom that point of view alone has it been discussed.
It appears, therefore, that the police officers went to this place on that occasion simply as peace officers, and that they took no part in the seizure. In their return they unnecessarily go out of their way to discuss other matters connected with the merits of the case and their co-respondents. It has somewhat the appearance of an excuse, which amounts to self-accusation. But it will be unnoticed. Let the rule be discharged as to them.
The return of P. M. Mixson shows that he received this package from the constables under the provisions of the dispensary law. This law gives him no control over the constables. He is not responsible for their seizure, and he seems to have acted within the lines of his duty holding the package awaiting a demand for it. Let the package of the petitioner be returned to him. When this is done, the rule as to P. M. Mixson will be discharged.
The respondents J. T. Speed, A. T. Davis, and S. G-. La Par, in taking possession of this package, labeled and marked as it was, and with the positive information that it was the private property of the' petitioner, violated the injunction and disobeyed the order of this, court; The fact that the package was seized with this notice and information is alone to be. considered. That it was seized
At the hearing, the attorney general being in court, his assistant, who represented the respondents, gave positive assurance that his office had instructed the constables to obey the order and injunction strictly; that of his own knowledge there was an honest apprehension on their part that the seizure was of contraband whisky, not protected by the order. As has been said, we can only discuss. The seizure of this package, the offense to the club, apd any invasion of its rights, cannot come within the supervision of this court. Taking everything into consideration, it is ordered that the marshal take into his custody the respondents J. T. Speed, S. G. La Far, and A. T. Davis, and that, upon the payment of all the costs of this case and the delivery of the package to the petitioner, they be discharged, and go hence without day.