53 S.C. 489 | S.C. | 1898
Lead Opinion
The opinion of the Court was delivered by
The case contains the following statement of facts: This is an action commenced November 8, 1897, upon an open account for liquors sold by plaintiffs, citizens of Maryland, to defendant, a citizen of Georgia. Amount of account, $1,575. The action was commenced by attachment upon certain stocks of liquors in the possession of J. E. Payne and F. M. Simmons, Greenville, and Cobb & Morris, in Abbeville. In August, 1897, the defendant, who was a large wholesale dealer in liquor in Atlanta, entered into several agreements with the said Payne, Simmons, and Cobb & Morris, by which each of them became the agent of said defendant for the sale of liquor in original packages in said localities. The defendant shipped large quantities of liquor to her said agents in original packages, and said agents conducted business for her under the protection of the interstate commerce law, and the decisions of the United States Court sustaining the same. That at the time said liquors were attached they were in the possession respectively of the said Payne, Simmons, and Cobb & Morris, in the original form in which they were imported into this State, and had not been distributed to purchasers within the State. The defendant, within due time, answered the plaintiff’s complaint, and .the case was placed on Calendar 1, for trial by jury. Before the Court convened, to wit: February 23, 1898, the defendant served upon the attorneys for the plaintiffs a notice of a motion to be heard by his Honor, Judge James Aldrich, at his chambers, for an order vacating the attachment in the said cause, upon the ground ‘ that the said liquors attached were exempt from sale under the dispensary law of this State by any officer of the Court, under mesne or final process, and, therefore, exempt from attachment. The motion was heard by his Honor, Judge James Aldrich. The attorney for the defendant stated that he would rest the entire motion upon the ground above stated. Argument was, therefore, directed to the issue thus made.
After argument,,the presiding Judge overruled the motion
The defendant appealed from said order upon three exceptions, but it will not be necessary to consider them in detail, as they raise practically the single question whether the said property could be attached. Section 1 of the dispensary act, 22 Stat., 123, of force at the time of said attachment, contains the following provisions: “That the manufacture, sale, barter or exchange, receipt or acceptance, for unlawful use, delivery, storing and keeping in possession, within this State, of any spirituous, malt, vinous, fermented, brewed (whether lager or rice beer), or other liquor, any compound or mixture thereof, by whatever name called or known, which contains alcohol and is used as a beverage, by any person, firm or corporation; the transportation, removal, the taking from the depot or other place by consignee or other person, or the payment of freight or express or other charges by any person, firm, association or
We have quoted from these sections of the act for the purpose of showing that the use and possession of the liquor, under the circumstances set forth in the case, are forbidden by law as against public policy; that it was contraband; and that the intention of the statute was to destroy the right of property therein by subjecting it to seizure without warrant and to forfeiture to the State. The' statute, in its efforts to prevent the mischief arising from the illegal use and possession, as aforesaid, has even gone to the extent of declaring null and void all obligations contracted in the sale thereof. For the Court to allow the use of its process in making the liquor liable to the payment of debts would be to lend its aid in thwarting the provisions of the act, and deprive the State of its rights arising from forfeiture. This distinction between statutes merely prohibiting the sale of liquor, and those that destroy the right of property therein, and declare the ownership illegal under penalty, is clearly pointed out by Mr. Justice Tittle, who, in delivering the opinion of the Court, in the case of Fears v. State (Ga.), 29 S. E. R., 463, uses the following language: “The object of this act was, as its caption recites, to prevent the evils of intemperance; and the means of preventing such evils was to prohibit the selling or giving away of the liquors enumerated. Further than this the act does not go. It is a valid and constitutional act of the General Assembly, and is entitled to have full force and effect; and in construing such acts, the spirit as well as the letter of the law will be
There was, therefore, error on the part of the Circuit Judge in refusing to dissolve the attachment, and it is the judgment of this Court, that the order appealed from be reversed.
Concurrence Opinion
concurring. I concur in reversing the judgment of the Circuit Court, on the ground that intoxicating liquors are, in this State, exempt from attachment for debt. Section 256 of the Code of Procedure, relating to attachments, provides that “all property in this State of such defendant, except that exempt from attachment by the Constitution, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.” The exemption here referred to is, doubtless, the homestead exemption. But the dispensary law, a later enactment, prohibits, under penalty, the sale of intoxicating liquors by anybody and in any way, except as provided for in that act; and it is nowhere in that or any subsequent act provided that an officer may sell intoxicating liquors under attachment or execution. The terms of the dispensary act are broad enough to forbid public sale by auction as well as private sales. Since the object of an attachment is to hold for sale, under the judgment that may be obtained, and since the public sale of intoxicating liquors under mesne or final process is clearly within the prohibition of the dispensary law, by necessary implication, intoxicating liquors are exempt from attachment for debt. I am not prepared to rest this case to any extent on the ground that the dispensary law destroys the owner’s right of property in intoxicating liquors, even where kept for an unlawful purpose. Until actual confiscation by the State, the “owner” has property therein, but subject to law. Otherwise, such property could not be the subject of larceny.- The owner could not maintain an action to recover the same against a trespasser. Nor could he claim the restoration of the same by dissolution of