52 S.E.2d 705 | S.C. | 1949
March 23, 1949. This action was brought in 1948 for an accounting and dissolution of a claimed partnership between appellant and respondent which was alleged to have been formed about July 1, 1945 for the operation of a retail liquor store in the town of Johnston.
The appeal is from the refusal by the lower court to sustain a demurrer to the third defense of the answer, which is, in substance, that plaintiff (appellant) sold his Johnston liquor store to defendant (respondent) as of July 1, 1945 in order to operate a similar store in the City of Columbia, for which latter appellant procured licenses from the State for *366
the fiscal years ending 1946 to 1948, inclusive; and that subsection (c) (9) of section 4 of The Alcoholic Beverage Control Act of 1945,
The cited section of the statute is as follows:
"No retail dealer shall own, operate or have any interest whatsoever in any business, store or establishment dealing in alcoholic liquors except the store or place of business covered by his retail dealer's license granted under this Act. No license shall be issued to more than one member of any household in this State and only one license shall be issued to any licensee."
The demurrer to the stated defense was overruled upon the conclusion that the alleged partnership contract contemplated a transaction which is forbidden by statute and therefore unenforceable, for which there were cited our decisions of McConnell v. Kitchens,
There are two related decisions so recent that they had not been published at the time of the hearing of this case in the Circuit Court. They are Ex parte Rosenfeld (In re Langley's Estate),
The excellent brief of appellant is principally upon the contention that in view of the fact that the Act of 1945 contains no declaration that a contract in evasion of its terms is void and unenforceable and the Act is not designed to protect the public health and morals or to protect the public from imposition and fraud, a contract of evasion is not void but is enforceable in such a case as this.
By means of the foregoing contended distinction, the authorities relied upon by the lower court are differentiated by appellant. It is said that McConnell v. Kitchens resulted as it did because the pertinent statute there (requiring the labelling of fertilizer) was for the protection of the public from fraud and the defendant who invoked it was a person (farmer) specially entitled to its protection. It is argued that the authority of that decision is restricted by the subsequent case of opposite result, Tate v. Pegues,
Elder Harrison Co. v. Jervey,
A further obstacle to appellant's attempted distinction is that it overlooks or ignores the consideration that the Alcoholic Beverage Control Act of 1945 is a typical exercise of the police power of the State and is designed for the protection of the morals and welfare of the public. The universality of this conception of legislation looking to control of the liquor traffic was pointed out in Davisv. Query,
Earlier cases than the most of those in the foregoing A.L.R. annotations are collected in the note in
We are constrained to hold the principle applicable to this case. It would be anomalous, as many courts have said in the past, to permit judicial enforcement of contracts which are entered into in violation of law. As was said in Gilliland v. Phillips,
If the complaint be true and respondent make out his defense he may be unjustly enriched, as appellant says, but the answer is old and sound and is here restated from another opinion of Chief Justice McIver, that in Milhous v.Sally,
We conclude, therefore, as did the lower court, that the challenged defense is a valid one if established by the evidence.
Affirmed.
BAKER, C.J., and FISHBURNE, TAYLOR and OXNER, JJ., concur.