Lead Opinion
delivered the opinion of the court.
The records in these cases present the question of the validity, under the Constitution of the United States/ of the act of the general assembly of the State of South. Carolina, approved January 2, 1895, generally known as the state dispensary law, and a copy of which is in the margin.
Our inspection of these records does not satisfy us that this objection is well founded. The declaration- or complaint
The declarations contain allegations which, if true, bring
These allegations must, for the purpose of disposing of the present, question, be accepted by us as true or, at least, as susceptible of proof.
' Damages have been defined to be the compensation whic.h tbd law will, award for an injury done, and are said to be ".exemplary and allowable in excess of the actual loss, where a. tort is- aggravated by evil motive, actual malice, deliberate •violence or oppression. While some courts and text-writers, have questioned the soundness of this doctrine, it has been accepted in.England, in most of the States of this Union, and has received the sanction of this court.
In the case of Wilkes v. Wood, Lofft, 19, which was an action'of trespass for breaking into the plaintiff’s house and seizing his papers, under color of a general 'warrant by a secretary of State, Chief Justice Pratt, in charging-the jury, and in replying to the contention of the solicitor general that, damages nominal or merely compensatory were аll that could be allowed, said: “Notwithstanding what the solicitor gen
In the case of Huckle v. Money,
In Day v. Woodworth,
“ It is a well-established principié of the common law that, in actions of trespass and all actions on the case for torts, a' jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compeifsation to the plaintiff. . We are aware that the propriety of this doctrine has been questioned by some writers, but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.. T>y the common, as well as by-statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages- inflicted by way of penalty or punishment given to the party injured. In many civil actions, such as libel, slander, seduction, etc., the wrong done to the plaintiff is incapable of being measured by a’money standard, and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant’s conduct, and may properly be termed exemplary or vindictive rather than compensatory.
“In actions of trespass, where the injury has been wanton and • malicious, or gross and outrageous, courts permit juries to add to the ’measured compensation, of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called‘smart money,’ This has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend oh the particular circumstances of each case.”
Philadelphia, Wilmington & Baltimore Railroad v. Quigley,
This was likewise recognized as well-settled doctrine in the case of Lake Shore Railway v. Prentice,
The intentional; malicious and repeated interference by the defendants with the exercise of personal rights and privileges secured to .the plaintiff by the Constitution of the United States, as. alleged in the complaint, constitutes, as we think,' a.wrong and injury not the'subject of compensation by a mere money standard, but fairly within the doctrine of the cases wherein .exemplary damages have been allowed. Those allegations of the complaints,, though denied in the answers, have been sustained by the tribunal — in these cases the court, a jury having - been waived — which had to pass upon the issues of fact.
' That the amount of the recovery in. each case fell short of the sum of two thousand dollars did not withdraw the cases from the jurisdiction of the court. As the declarations alleged damages in the. sum of- six thousand dollars, and' as a jury would be at liberty to find any amount not in excess of .that sum, the jurisdiction, having once validly attached, would not be defeated by the fact that the recoveries were for sums less than two thousand dollars. As said in the case of Day v. Woodworth, above cited, “The amount has always been left to the discretion of the jury, as the degree of the punishment to be then inflicted must. depend, on the particular circumstances of «each case.”
Barry v. Edmunds,
Our inquiries thus far have proceeded on the assumption thаt the injuries complained of were inflicted in the enforcement of an unconstitutional law of the State. Sustaining the jurisdiction of the Circuit Court on that-Assumption, we are now brought to the more important and difficult question whether the so called dispensary law of the State of South Carolina is, indeed, as to some or all of its parts, invalid, as being in conflict with the Constitution of the United States and acts of Congress made thereunder? Is that statute a lawful exercise of the police power of the State?
In the .present discussion we do not deem it necessary or desirable to review the numerous cases in which this court has had occasion to consider similar questions. We shall find it sufficient to apply to the case before.us. the conclusions announced in several very recent cases.'
The difficulty of the subject is shown in the frequent and elaborate dissents in many of the cases. Still, it can be safely said that the differences of opinion thus manifested have not been so much upón fundamental principles, as upon questions of the construction and meaning of the various state statutes that have been under consideration.' Those statutes have covered almost innumerable subjects; such as the exclusion from the State of contagious or infectious diseases, or of criminals, paupers and others likely to become a burden or public charge; regulations requiring railroad companies to fence their roads; forbidding the manufacture and sale of oleomar•garine; the prohibition of Sunday labor, even by railroad companies partly engaged in interstate commerce, etc.
The evils attending the vice of intemperance in the use of spirituous liquors are so great, that a natural reluctance is felt-in appearing to interfere, even on constitutional grounds, with any law whose avowed purpose is to restrict or prevent the mischief. So long, however/ as state legislation continues to recognize wines, beer and spirituous liquors as articles of lawful consumption and commerce, so long must continue the duty of the Federal courts to afford to such use and commerce the same measure of protection, under the Constitution and laws of the United, States, as is given to other articles.
¥e cheerfully concede that the law in question was passed in the bona fide exercise of the police power. We disclaim any imputation to the law-makers of South Carolina of a design, under the guise of a domestic regulation, to interfere with the rights and privileges of either her own citizens or those of her sister States, which are secured to them by the Constitution and laws of the United States.
But, as we have had more than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the State from the evils of unrestricted importation, manufacture and sale of ardent spirits, cannot control the final determination whether the statute, in some of its provisions, is not repugnant to the Constitution of the United States. As was said in Mugler v. Kansas,
It is important to- observe that the statute. before us does not purport to prohibit either the importation, the manufac
Thus section three provides for the appointment of a state commissioner, who is required to purchase all intoxicating liquors for lawful sale in the State, and to furnish the same to such persons as may be designated as dispensers thereof, to be sold as thereafter provided in the act. Such commissioner is directed, before shipping the liquor to county dispensaries, to cause the same to be put up in sealed packages of not less than one half pint nor more than five gallons, in which packages they shall be sold by county dispensers.
The fifteenth section enacts that “ any person, firm, association or corporation desiring or intending to manufacture or distill any liquors containing alcohol within the State, shall first obtain from the state board á permit or license to do-so,” and said section further provides “that manufacturers of distilled, malt or vinous liquors who are doing business' within this State shall be allowed to sell to no person in this State except the state commissioner and to parties outside the State, and the state commissioner shall 'purchase his supplies from the brewers and distillers in this State when their product reaches the standard required by this act: Provided, Such supplies can be purchased as cheaply from such brewers and distillers in this State as elsewhere.” So, too, the twenty-third section provides that “ the state commissioner may enter- into
In view of these and similar provisions, it is indisputable that whatever else may be said of this' act, it was not intended to prohibit the manufacture, sale and use of intoxicating liquors. On the contrary, liquors and wines are recognized as commodities which may be lawfully made, bought and sold, and must therefore be deemed to be the subject of foreign and interstate commerce.
It is sought to defend the act, as an inspection act, within the meaning, of that provision of the Constitution of the United States which permits the States to impose excise duties as far as they may be absolutely necessary for executing their inspection laws.
The act does, indeed, contain provisions looking to the ascertainment of the purity of liquors, and to that extent may be said to be in the nature of an inspection law. But -those provisions, such as.they are, do not redeem the act from the charge- of being .an obstruction and interference . with foreign and interstate commerce. This aspect of the question has bb.en several times considered by ihis court in cases where similar attempts Tygye made to sustain state statutes as legitimate inspection laws.
In Railroad Co. v. Husen,
It was contended on behalf of the law that it was valid as á quarantine or inspection law, as its purpose was to prevent '.the introduction of cattle afflicted with contagious diseases. But the court pointed out that no provision was made for the actual inspection’of the cattle, so as to secure the rejection ■of those that were diseased, but that all importation of •cattle, whether sound or diseased, was forbidden for long periods; and .it was held that the statute was void as a plain -intrusion upon the exclusive domain of Congress.
Walling v. Michigan,
In Leisy v. Hardin,
In Minnesota v. Barber,
A statute of the State of Minnesota, entitled “ An act for the protection of the public health by providing for inspection, before slaughter, of cattle, sheep and swine designed for slaughter for human food,” in its first section prohibited the sale of any fresh beef, veal, mutton, lamb or- pork for human food in the State, except as subsequently provided in the act. Boards of inspectors were there provided for, whose duty it should be to inspect all cattle, sheep and swine slaughtered for human food. It was made a matter of fine or imprisonment for any one to sell or expose for sale for human food any fresh beef, mutton, lamb or pork which had not been so inspected.
This court, in an opinion delivered by Mr. Justice Harlan, while conceding that the statute was enacted in good faith, for'the purpose expressed.in'the' title, namely, to protect the health of the people of Minnesota, held that, as the necessaiy effect of the act was to deny altogether to the citizens of other ' States the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, mutton, veal or pork, from animals slaughtered outside of the State, and to compel the
“ A law providing for the inspection of animals whose meats are designed for human food cannot be regarded as a rightful exertion of the police powers of the State, if the inspection prescribed is of such a character, or is burdened with such conditions, as will prevent altogether' the introduction into the State of sound meats, the products of animals slaughtered in other States. It is one thing for a State to exclude from its limits cattle, shéep or swine, actually diseased, or meats that, by reason of their condition, or the сondition of the animals from which they are taken, are unfit for human food, and punish all sales of such animals or of such meats within its limits. ' It is quite a different thing for a State to declare, as does Minnesota by the necessary operation of its statute, that fresh beef, veal, mutton, lamb or pork — articles that are used in every part of this country to support human life — shall not be sold at all for human food within its limits, unless the animal from which such meat is taken is inspected in that State, or, as is practically said, unless the animal is slaughtered in that State. ... It is, however, .contended, in. behalf of the State, that there is in fact no interference by this statute, with the bringing of. cattle, sheep and swine into Minnesota from other States, nor any discrimination against the products and business of other States for the reason — such is the argument — that the statute requiring an inspection of animals on the hoof, as a condition of the privilege of selling, or offering for sale, in the State, the meats taken from them, is applicable alike to aH owners of such animals, whether citizens of Minnesota or citizens of other States. To this we answer, that astatute may, upon its face, apply equally to the people of.;all the States, and yet be a regulation of interstate commerce which a State may not establish. A burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States including the people of the St^te enacting such statute. Robbins v. Shelby Taxing District, 120 U. S. 489 , 497; Case of the State Freight Tax,15 Wall. 232 . The people' of Minnesota have as much right to protection against the enactments of .that State, interfering with the freedom of commerce among the States, as have the people of other States.. Although this statute is not avowedly, or in terms, directed against the bringing into Minnesota of the products of other States, its necessary effect is to burden or affect commerce with other States, -'as involved in the transportation into that State, for the purposes of sale there, of' all fresh beef, veal, mutton, lamb or pork, however free from disease may have been the animals from- which i.t was taken.”
The same reasoning prevailed in Brimmer v. Rebman,
After the decision in Leisy v. Hardin, and, perhaps, in pursuance of some observations contained therein, Congress passed the act of August 8, 1890, 26 Stat. 313, c. 728, enacting “ that all fermented, distilled or other intoxicating liquors, or liquids transported.into-any State or Territory, or remaining therein
In Plumley v. Massachusetts,
In the light of these cases the act of South Carolina. of January 2, 1895, must, as to those of its provisions which affect 'the plaintiff in the present suits, stand condemned.
It is not an inspection law. The prohibition of the importation of the wines and liquors of other States by citizens of South Carolina for their own use is made absolute, and does not depend on the purity or impu.ity of the articles. Only the state functionaries are permitted to import into the State, and .thus those citizens who wish to use foreign wines and liquors are deprived of the exercise of their own judgment and taste in the selection of commodities. To empower a
It is not a law purporting to forbid the importation, manufacture, sale and use of intoxicating liquors, as articles detrimental to the welfare of the State and to the health of the inhabitants, and hence it is not within the scope and operation of the act of Congress of August,. 1890. That law was not. intended to confer upon any State the power to discrimináte injuriously against the products of other States in articles whose manufacture and-use are not forbidden, arid'which are therefore the subjects of legitimate commerce. "When- that law provided that “ all fermented, distilled or intoxicating liquors transported into any State*or Territory, remaining therein for use, consumption, sale or storage therein, should, upon arrival in sucli 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 the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and should- not be exempt therefrom by reason of being introduced therein in original packages or otherwise,” evidently equality or uniformity of treatment under state laws was intended. The question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to -this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors and be valid. Or it may provide equal regulations for the inspection and sale of all domestic and imported liquors and be valid. But the State cannot, under the Congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which, are admitted to be •lawful.
Whether those provisions of the act which direct that so called contraband liquors may be seized without warrant by any state constable, sheriff or policeman, while in transit or after arrival, whether in possession of a common carrier,
This phase of the. subject is novel and interesting, but we do not think it necessary for us now to consider it. It is sufficient for the present cases to hold, as we do, that when a State recognizes the iiíánufacture, sale and use of ihtoxicating liquors as lawful, it cannot discriminate against the bringing •of such articles in, and importing them from other States; that such legislation is void as a hindrance to interstate commerce arid an unjust preference of the products of the enacting State as against similar products of the other States.
There has been filed in the record a suggestion by the-•attorney general of the State of South Carolina that, since the trials- of these-, cases in the court below, there has been passed by the general assembly of that State a further act approved by the governor on March 6, 1896,* which act it is ■submitted,-supersedes and repeals parts of the act which has been under consideration in these cases; and we are asked to consider the provisions of the moré recent act.
So far as these actions at law are concerned, it is, of course, -obvious that the-damages recovered were for acts committed under the alleged authority of the act of 1895, and cannot be ■affected by the provisions of the act of 1896, even if the invalidities of the former act were thereby remedied — a matter on which jve express no .opinion.
The judgments of the Circuit Court.are
Affirmed.'
Notes
An Act to further declare the law in reference to, and further regulate the use, sale, consumption, transportation and disposition of alcoholic liquids or liquors within the State of South Carolina; and to police the same.
Section 1.- Be it enacted by the Senate and House of Representatives of the State of South Carolina, now met and sitting in General Assembly, and by the authority of the same, That the manufacture, sale, barter or exchange, receipt, acceptance, delivery, storing and keeping in possession, within this State, of any spirituous, malt, vinous, fermented, brewed (whether lager or rice beer) or other liquors, or any compoilnd 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'corporation, upon any spirituous, malt, vinous, fermented, brewed (whether lager, rice or other beer) or other liquor, or any compound’or mixture thereof, by whatever name’called or known, which contains alcohol and is used as a beverage, except as is hereinafter provided, is hereby prohibited, under a penalty of not less than three (3) nor more than twelve (12) months at hard labor in the state’penitentiary, or pay a fine of not less than one hundred dollars nor more than five hundred dollars or both fine and imprisonment, in the discretion of the court, for each offence: All such liquors, except, when bought from a state officer author
Sec. 2. The governor, the secretary qf State and the comptroller general shall ex officio constitute the state board of control to carry out the provisions of this act. The state board óf control shall elect a clerk, who shall hold his, office during the pleasure of the board, and shall receive as com-, pénsation for. his services a salary of eight hundred dollars per annum.
Sec. 3. That the state board of control shall, at the expiration of the term of the present commissioner, and at the expiration of every two years thereafter, appoint a commissioner, which appointment shall be submitted to the senate at its next session for its approval; said commissioner shall be believed by the state board of control to be an abstainer from intoxicants, and shall, under such rules and regulations as may be made by the state board of control, purchase all intoxicating liquors for lawful sale in this State, and furnish the same to such persons as may be designated as dispensers thereof, to be sold as hereafter prescribed in this act. Said commissioner shall reside,'and have his place of business, in the city of Columbia, in this State, and hold his office two years from his appointment and until another be appointed in his stead. He shall be subject to removal for cause by the state board of control. He shall qualify and be commissioned the same as other state officers,' and shall receive an annual salary of twenty-five hundred dollars, payable at the same time and in the same manner as is provided for the payment of the salaries of state officers. He shall be allowed- a book-keeper, who shall be paid in the same manner a salary of twelve hundred dollars; and such other assistants as in the opinion of the board of control may be deemed necessary. He shalT'not sell to the county dispensers any intoxicating or fermented liquors except such ?s have been tested'by the chemist of the South Carolina college and dec ired to be pure: Provided, That said board of control shall have authority to appoint such assistants as they may find necessary to assist the chemist of the South Carolina college in making the analyses required by this .act; .and the said board of control may fix such reasonable compensation, if any, as they may deem proper for the services rendered by such chemist or such assistants. The state commissioner shall deposit all amounts received by him from sales to county dispensers or others with the treasurer of the State under such rules as may be made by the state board of control to insure the faithful return of the same, and- the state treasurer shall keep a separate account with said fund, from which the commissioner shall draw from time to time, upon warrants duly .approved by the chairman of .said board, the amount necessary to pay the. expenses incurred in conducting
Sec. 4. Said commissioner shall make a printed monthly statement, under oath, of all liquors sold by him, enumerating the different kinds and quality of each kind, the price paid, and the terms of payment and to whom sold; also the- names of the parties from whom the liquor was purchased and their places of business and- dates of purchase, which statement shall be filed with'the state-board of control.
Sec. 5. The state. commissioner shall, before shipping any liquors to dispensers, except lager beer, cause the same to be put into packages of not less than one hálf pint nor more than five gallons^ and securely seal the same, and it shall be unlawful for the dispenser to break any of such packages or open the same for any reason whatsoever. He shall sell by the
Sec. 6. It shall be the duty of the state, board'of control to appoint a county board of control, composed of the county supervisor ex Officio and *two other persons believed by the said board not to be addicted to the use of intoxicating liquors. The two persons so appointed shall hold their office for a term of two years, and until their successors are appointed, and shall be subject to removal for cause byHhe state-board of control. Said county board of control shall make such rules as will be conducive to the best management of the sale of' intoxicating liquors in their respective counties: Provided, All such rules shall be submitted to the state board and approved by them before adoption. The members of the county board of control shall qualify and be commissioned as are other county officers, without fees therefor.
Sec. 7. Applications for positions of county dispenser shall be by petition, signed and ^worn to by the applicant, and filed with the county board of control at least ten days before the meeting at which the application is to be considered, which petition shall state the applicant’s name, place of residence, 'in what business engaged, and in what business he has b’een engaged two years previous to filing petition; that he is a citizen of the United States and of South Carolina; that he has never been adjudged .guilty of violating the law relating to intoxicating liquors, and is not a keeper of a restaurant or place of public amusement, and that he is not addicted to the use of intoxicating liquors as-a beverage. This permit or renewal thereof shall issue only on condition that the applicant shall execute to the county treasurer á bond in the penal sum of three thousand dollars, with good and sufficient sureties, conditioned that he will well and truly obey the laws of the .State of South Carolina, now or hereafter in force, in relation to the sale of intoxicating liquors, that he will pay all fines, penalties, damages and costs.tliat may be assessed, or recorded against him, for violations of such lаws during the term for which said permit or renewal is granted, and will not sell intoxicating liquors under his permit at a price other than that fixed by state board of conttol. Said bond shall be for the use of the county or any person or persons who may be damaged or injured by reason of any violation on .the part of the obligor of the law relating to intoxicating liquors purchased, or sold during the term for
Sec. 8. There may be one or more county dispensers appointed for each county, the place of business of each of whom shall be designated by the county board, but the state board must give consent before more than one dispenser can be appointed in any county; and when the county board designates a locality for a dispensary, ten. days’ public notice of which shall be given, it shall be competent for a majority of the voters of the township in which such dispensary -is to be located to prevent its. Ideation in such township by signing a petition or petitions, addressed to the county board, requesting that no dispensary be established in- that township, whereupon some other place may be designated. The county board may in its discretion locate a dispensary elsewhere than in an incorporated town' in the counties of Beaufort and Horry an'd no others, except such as are' authorized by special act of the general assembly: Provided., however, That any county, town or ’ city wherein the sale of alcoholic liquors was prohibited by law prior to July 1, 1893, may secure the éstablishment' of a 'dispensary within its borders in the following manner: .Upon petition signed by one fourth of the qualified voters of such county, town or city wishing a dispensary therein being filed with the county supervisor or town or city council, respectively, they'shall order an election submitting the question of dispensary or no dispensary to the qualified- voters of such county, town or city, and shall prescribe the rules, regulations, returns, ballots and noti'ee of such election and shall declare -the result; and -if a majority of the ballots cast be found and declared to be for a dispensary; then a dispensary may be established in said county, town or city: Provided, That dispensaries may be established in the counties of Williamsburg, Pickens and Marion and at Seneca and other towns now incorporated in Oconee County without such election on compliance with the other requirements of this act: Provided, That nothing in this act contained shall be so construed as to prohibit persons resident in counties which shall elect to have no dispensary from procuring liquors
Sec. 9. If the application for the position of dispenser be granted, it' shall- not issue until the applicant shall make arid subscribe on oath, before some officer- authorized by law to administer oaths, which shall be endorsed upon the bond, to the effect and tenor following: “ I,-, do solemnly swear (or affirm) that I will well and truly perform all and singular the condition of the within bond, and keep' and perform the trusts confided in me to purchase, keep and sell intoxicating liquors. I will not sell, give or furnish to any-person any intoxicating liquors otherwise than is provided by law, and especially I' will not sell or. furnish intoxicating liquers to any. minor, intoxicated person or persons who are .in the habit of becoming intoxicated, and I .will make true, full and accurate returns to the county-board of control on the first Monday of each month of all certificates and requests made to or received by me, as required by law, during the preceding month; and such returns, shall show every sale and delivery of such liquors made by me or for me 'during the month einbraced therein, and the true-signature to every request received and granted;- and such returns shall show all the liquors sold or delivered to any and every person as returned.” Upon taking said oath and filing bond as hereinbefore provided, the county board of control shall issue to him a permit authorizing him to keep and sell intoxicating liquors as in this act provided, and every permit-so granted shall specify the building, giving the street and number or location, in which intoxicating liquors may be sold by virtue of the same, and the length of time in which the same shall be in force, which in no case. shall exceed twelve months. Permits granted under this act shall be deemed trusts reposed in-the recipients thereof, not as a matter of right, but of confidence, and may be revoked upon sufficient showing by'order of the county board of control; and upon the removal of any county dispenser, or upon demand of the' county board of control, he shall immediately turn over to the county board of control all liquors and other property in his possession belonging to the State or county. Said county board of control shall be charged with the duty of prosecuting the county dispenser or any of his employés who may violate any of the provisions of this act. On the death, resignation or removal of a county dispenser or -expiration of his term of office, the .county board shall appoint his successor.
Sec. 10. The county board of control shall use as their office ’the office of the county supervisor of their county, and shall elect one of their num
SEc. 11. Before selling or delivering, any intoxicating liquors' to any
Sec. 12. Bequests for purchase of liquor shall be made upon blanks furnished by the county auditor, in packages of one hundred each, to the county dispensers, from time to time as the same shall be needed, and .shall be numbered consecutively by the auditor. The blanks aforesaid shall be furnished to the county auditor by the state board of control, in uniform books, like bank checks, and the date of delivery shall be endorsed by the' county auditor on each book and receipt taken therefor and preserved in his office. The dispenser shall preserve the application in the original form and book, except the filing of the blanks therein, Until returned to the county auditor. When return thereof is made the county auditor shall endorse thereon the-date Of return, and file and preserve the same, to be used in the quarterly settlements between such dispenser and the county treasurer. All "unused or mutilated blanks .shall be returned or accounted for. before other blanks are issued to such county dispenser.
Sec. 13. On or before the tеnth day of each month each dispenser shall make full returns to the county auditors of all requests filed by him and his clerks during the preceding month upon blanks to be furnished by the state board of control for that purpose, and accompany the same with an oath, duly taken and subscribed before the county auditor or notary public, which shall be in the following form, to wit: “I,-,being duly sworn, state on oath that the requests for liquors herewith returned are alt that were received and filled at my place of business under my permit during the month of-, 189-; that I have .carefully preserved the same, and that they were filled up, sign’ed and attested at the date shown thereon, as-provided by law; that said requests were filled by delivering the quantity and kind of liquors required, and that no liquors have been sold.or dispensed under my permit during said month except as shown by the requests herewith returned; and that I have faithfully observed and complied with
Sec. 14. Upon failure of any dispenser to make returns to the auditor as herein required, it shall be the duty of said auditor to report such failure to the state.board of control, and the said state board of control shall immediately order the county board to summon said delinquent dispenser to appear before them and show cause why his permit should not be revoked; and if the cause shall not be shown to the satisfaction of the county board of control, they shall immediately annul said permit and give public notice thereof; and the circuit solicitor shall proceed to enforce the penalties prescribed in this act for such violation against said county, dispenser at the next succeeding term of court in the county in which such permit is held;. and any dispenser who shall sell or dispose of amj intoxicating liquors after Iris permit shall have been revoked shall, upon conviction thereof, be fined not less than five hundred (500) dollars and be imprisoned for six months. If any dispenser or his clerk shall purchase any intoxicating liquors from any other person except the state commissioner, or if he, or they, or any person or persons in .his or their employ, or by his or their direction, shall sell or offer for sale any liquors other than such as have been purchasеd from the state commissioner, or shall adulterate, or cause to be adulterated, any intoxicating, spirituous or malt liquors which he or they may keep for sale under this act, by mixing with same coloring matter or any drug or ingredient whatever, or shall mix the same with' other liquors of different kind or quality, or with water, or shall sell or expose for sale such liquors so adulterated, knowing it to be such, or shall Change the label upon any box, bottle or package, he or they shall be guilty of a misdemeanor and be fined in a sum of hot less than two hundred dollars or imprisonment for not less than six months. If any county dispenser shall misappropriate, misuse or otherwise wrongfully dispose of any moneys or other property belonging to the State, county, .or municipality, he shall, upon conviction, be punished as in case of breach of trust with fraudulent intent. .
Sec. 15. No person, firm, association or corporation .shall manufacture for sale, or keep fpr sale, exchange, barter or dispense any liquors containing alcohol, for any purpose whatsoever, otherwise than is provided in this act. Any person, firm, association or corporation desiring or intending to manufacture or distill any. liquors containing alcohol within this State shail first obtain from-the state .board of control a permit or license so tó do, and it shall be unlawful for any such person,-firm, association or corporation to manufacture- or distill any liquors containing alcohol within this State without having such permit or license. Any violations of the terms of the permit or license shall authorize and warrant the seizure of the product on
ntraband goods. Dispensers as lierein provided shall alone be authorized to sell and dispensé liquors containing alcohol, and all permits must be procured by such dispensers as herein provided from the county board of control: Provided, That the manufacturers of distilled, malt or vinous liquors who are doing business in the State shall be allowed to sell to. no person in this State except the state commissioner and to parties outside the State, and the state commissioner shall purchase his supplies from the brewers and distillers in this State when their product reaches the, standard required by this act -• Provided, Such supplies cat! be purchased as cheaply from such brewers and distillers in this State as elsewhere: And provided further, That the state commissioner shall have the right, and he is hereby empowered, to purchase malt liquors from breweries of this State, and also' from breweries outside of this'State, who may have agents representing them in this State. Every package, barrel or bottle of such liquor shippe4 beyond the limits of this State shall have thereon the certificate of the state commissioner allowing same, otherwise it shall be liable to confiscation, and the railroad carrying it shall be punished as in section three: And-'provided, That any person shall have the right to make wine, for his or her own use from grapes or other fruits. The inspector appointed by the state board of control, as herein provided, shall have the right to enter and examine, at any and all times not forbidden by the United States l.aws, any distillery, brewery or place where liquors containing alcohol are manufactured within- this State. Any.'manufacturer, distiller or brewer who may refuse to allow the inspector to enter and examine his place of business and its appurtenances at such times as the inspector may deem proper shall forfeit his permit or license.
Seo. 16. Every dispenser shall keep z. strict account of all liquors received. by him from the state commissioner in a book kept for that purpose, which shall be subject at all times 'to the inspection of the circuit solicitor, any peace officer or grand juror of the county, or of any other citizen, and such book shall show the amount and kind of liquors procured, the date of receipt and amount sold, and the amount on hand of .each kind for each month. Such'book shall be .produced by the party keеping the
Seo. 17. The payment of the United States special tax as a liquor seller, or notice of any kind in any place of resort,"or in any store or shop indicating that alcoholic liquors are there sold, kept or given away, shall be held to be prima facie evidence that the person or persons paying said tax and the parties displaying such notices are acting in violation of this act; and unless said person or parties are selling under permit as prescribed by this act they shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for a term of not less than three months nor more than twelve months. Conviction in the United States courts of illicit sales of liquor shall be taken as prima facie evidence of violation of the provisions of this act, and any distiller or manufacturer of liquors containing alcohol so convicted in the'United States courts shall, by reason of such conviction, forfeit the permit or license granted him by the state board of control in addition to the other penalties herein provided.
Sec. 18. Licensed druggists conducting drug stores and manufacturers of proprietary medicines are. hereby authorized to purchase of dispensers of the counties of their residence intoxicating liquors (not including malt) for the purpose of compounding medicines, tinctures and extracts that cannot be used as a beverage* The dispensers shall not charge such licensed druggists more than ten per cent net profit for liquors so sold. Such purchaser shall keep a record of the uses to which the same are devoted, giving the kind and quantity so used,-and quarterly they shall make and file with the county auditor and with the county board of control sworn reports, giving a full and true statement of the quantity and kinds of such liquors purchased and used, the uses to which the same have been devoted, and giving the name of the dispenser from whom the same was purchased, and the dates and quantities so purchased, together with an invoice of each kind still in stock .and kept for such compoundings. If said licensed druggist shall sell, barter, give awag, or exchange or in any manner dispose оf said liquors for any purpose other than authorized by this section, he shall upon conviction forfeit his license and be liable to all penalties, prosecutions and proceedings at law and in equity provided against persons selling without permit, and upon such conviction the clerk of the court , shall, within ten days after such judgment or order, transmit to the board of pharmaceutical examiners the certified record thereof, upon receipt of which the said board shall, strike the name of the said druggist from the list of pharmacists and revoke his certificate: Provided, That nothing herein contained shall be construed to authorize the manufacture or sale of any preparation or compound, under any name, form or device, which may be used as a beverage which is intoxicating in its character: And provided
Sec. 19. If any person shall make any-false or fictitious signature or sign any name Other than his or her own to any paper required to be signed by this act, without being authorized, so to do, or make any false statement in' any paper, request or application signed to procure-liquors under this act, the person so offending shall be guilty of-a misdemeanor,, and upon conviction thereof shall be punished by a -fine of not more than twenty-five dollars, or be imprisoned not more than thirty days..
Sec. 20. If any dispenser, or his clerk, shall make false oath touching any matter required to bé syvorn to under the provisions of this act, the person so offending shall, upon conviction, be punished as provided by law for perjury. If any county dispenser shall purchase or procure any.intoxicating liquors from other person than the state commissioner, or make any false return to the county auditor, or use any request for liquors for more than one sale, in any such case he shall be deemed guilty of a misdemeanor, and upon conviction, be punishéd by a fine of five hundred dollars or six months’ imprisonment.
Sec. 21. Every person who shall directly or indirectly keep or maintain by himself, or by associating or combining with others, or who shall in any manner aid, assist or abet in keeping or maintaining any club room or other place in which any intoxicating liquоrs are received or kept for use, barter or sale as a beverage, or for distribution or division among the members of any club or association by any means whatever, and every person who shall receive, barter, sell, assist or abet another in receiving, bartering or selling, any alcoholic liquors so received or kept, shall be deemed guilty of. a misdemeanor, and upon conviction thereof shall .be punished by a fine of-not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for a tqrm of not less than three months nor more than twelve months: Provided, That the state board of control shall have the power, upon a proper showing and, under such rules as they may adopt, to exempt hotels where tourists or health seekers resort from being considered nuisances or as violating this act by reason of any manager of such hotels dispensing liquors bought from the dispensary, by the bottle, either night. ,or day, but before any such exemption- shall be granted the state board of control shall require the manager of such hotel to give a good and sufficient bond, in the penal sum of three thousand dollars, conditioned for the observance of all the rules, regulations and restrictions prescribed and imposed by the said board and with all the requirements of this act, and it shall be lawful for'any constable or officer thus employed-under this act.to enter such hotel and search it at any time, day or night, without a-warrant, for contraband liquors.
Sec. 23. The state commissioner, under rules and regulations provided by the state board'of control, may enter into contracts with responsible
Sec. 24. In all places where liquors are unlawfully kept or stored, the-same not being in an open house or exposed to view, and a search being necessary, upon affidavit to that effect, or on informatiоn and belief that contraband liquor is in such place, a search warrant may be issued by a justice, judge or trial justice, or mayor or intendant of a city or town, to whom application is made, empowering a constable, or any person who may be deputized, to enter the said place by daytime or in -the night-time and to search and exaijaine the said premises for the purpose of seizing the said contraband liquors therein concealed, kept or stored, which said liquor wbdn so seized shall be disposed as hereinafter provided.
Sec. 25. That any of the liquors set forth in section one (1) of this act, which are contraband, may be .seized and taken without warrant by .any state constable, sheriff or policeman, while in transit or after arrival, whether in possession of a common carrier, depot agent, express agent, private person, firm, corporation or association, and reported to the státe commissioner at once, who shall dispose of the same as hereinafter -provided : Provided\ That liquors purchased outside the State, owned and conveyed-as personal baggage, shall be exempt from seizure when the quantity does not exceed one -gallon. '
Sec. 26. That the possession of said illicit liquors is hereby prohibited and. declared unlawful, and any obligation, note of indebtedness, contracted, in their sale or transportation is declared to be absolutely null and void, nor-shall any action orsuit for the recovery of the same be entertained in. any court in this State.
Sec. 27. That the proceeding against liquor so illegally kept, stored, sold, delivered, transported or being transported shall be considered a proceeding in rem, unless otherwise herein provided, elsewhere than at his or her residence.
Sec.'29: Thai all constables, deputy constables, sheriffs, trial justices <•> municipal policemen shall have the right, power aud authority, and it shall be their duty, whenever they are informed or suspect that any such suspicious package in possession of a common carrier contains alcoholic liquors or liquids, to detain the same for examination for'the term of twenty-fo.ur hours without any warrant or process, whatever. Any constable, deputy constable, sheriff or trial justice who shall neglect or- refuse to perform the duties required by this act shall be subject to suspension by the governor. Any sheriff or trial justice seizing any alcoholic -liquors or liquids, as required by this.section, shall be paid one half the value of such liquor or liquids so soon as the same shall have been received at the state dispensary, approved and disposed of according to law.
Sec. 30. That any interference by any person' with, obstruction or resistance of, or .abusive language to, any officer or person in the discharge of the duties herein enjoined, or the use of abusive language by any such officer or person to any other person , or persons, shall be deemed a misdemeanor, and the person or persons so offending shall, upon conviction, be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or imprisoned for a. term of not less than three months nor more than twelve months.-
Sec." 81. In all cases of seizure of any goods, wares or merchandise hereafter or heretofore made as being-subject to forfeiture under any provision of this act or the former act, which, in the opinion of the officer or person making the seizure, are of the appraised value of fifty dollars or more, the said officer or person shall proceed as follows: 'First.' lie shall cause a list containing a particular-description of the goods, wares or merchandise seized to be prepared in duplicate and an appraisement ■ thereof to be made'
Sec. 32. That all fermented, distilled or other liquors or liquids containing alcohol, transported into this State or remaining herein for use, sale, consumption, storage or other disposition, shall, upon introduction and
Sec. 33. That no person, except as provided in this act. shall bring into this State Or transport from place to place within this State, by wagon, cart' 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 offence, upon conviction thereof, as for a misdemeanor. Any servant, agent or employé of any persons, corporations or associations, doiiug business in this State as common carrier, or any person whatever (except an officer seizing or examining the same), who shall remove any intoxicating liquors from any railroad car, vessel or other vehicle of transportation at any place other than the usual and established stations, wharves, depots or places of business of such common carriers within some incorporated city or town where there is a dispensary, or who shall aid in or cpnsent to such removal, or attempt to remove, shall upon conviction be sentenced to pay a fine of not less than one hundred dollars nor more than five hundred dollars, or imprisonment for a term of not less than three months nor more than twelve months: 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, That this section ■does not apply to- liquors purchased from a dispensary and bearing the proper label -or certificate. All liquors in this State, except dispensary liquors and those passing through this State, consigned to points beyond this State, shall be deemed contraband, and may be seized in transit without warrant. And any steamboat, sailing vessel, railroad, express company or other common carrier transporting or bringing into this State for sale or use therein, except by the dispensary, shall suffer a penalty of. five hundred dollars and costs for each offence, to be’ recovered by the solicitor of the circuit, or the attorney general, by an action brought therefor in any court of competent jurisdiction. The state constable, sheriff, municipal police or any lawful constable may enter any railroad car, or express car, or depot, or steamboat, or other vessel, without warrant and make search for such contraband liquors, and may examine the waybills and freight books of said common carriers, and any one interfering-with or resisting such officers shall b'e punished by a fine of not less than one hundred dollars nor more thah five hundred dollars, or imprisonment for a term of not less than three months nor more than twelve months. - '
Sec. 34. That any person detected openly or in the act of violating any of the provisiohs of this act shall be liable to arrest without warrant': Provided, A warrant shall b’e-procured within a reasonable time thereafter.
Sec. 35. That violations of any of the sections of this act where pun
Sec. 36. Every person who.dispossesses or rescues from a constable or other officer, or attempts so to do, any alcoholic liquor taken or detained by such officer charged with the enforcement of' this law, shall,- upon conviction, be imprisoned, not less than three months nor more than twelve' months, or pay a fine of not less than one hundred dollars nor more than five hundred dollars.
Seo. 37-.' Any person handling contraband iiquor in the night-time, or delivering the same, shall be guilty of a misdemeanor, and on conviction shall be punished by imprisonment for not lets than three months, nor more than twelve months, or by a fine of not less than one hundred dollars nor more than five hundred dollars.-
Sec.' 38. Any. wagon, cart, boat or other conveyance transporting liquors, at night, other than regular passenger dr freight steamers and railway cars, shall be liable to seizure and confiscation, and to that end the officer shall cause the same to be duly advertised and sold and the proceeds' sent to'vthe state commissioner.
Sec. 39. Every dispenser when he sells a package containing liquor shall put a cross-mark in ink on the label or certificate thereon, extending from the’top ta the bottom and from side to side. When any liquor is seized because it has. not the necessary certificates and labels required by this act, the burden of proof shall be upon the claimant of. said spirits to show that no fraud has been committed and that the whiskey is not contraband.
Sec. -41. That it shall be unlawful for any persons to take or to solicit orders, or to receive money from other persons, for the purchase or shipment of any alcoholic liquors for or to such other persons in this State, except for liquors to be purchased and shipped from, the dispensary, and any person violating this section, upon conviction, shall be deemed .guilty of a misdemeanor, and shall be punished by imprisonment for a term of not less than three months nor more than twelve months, or by a fine of not less than one hundred dollars nor more than five hundred dollars.
Sec. 42. It shall be the duty of sheriffs, deputy sheriffs and constables having notice of the violation of any of the provisions of this act to notify the circuit solicitor of the fact of such violation, and to furnish him the names of any witness within their knowledge by whom such violation can be proven. If any such officer or solicitor shall wilfully fail to comply with the provisions of this .section, he shall, upon conviction, be fined in a sum not less than on'c hundred dollars nor more than five hundred dollars, and such conviction shall work a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the foTféiture of his said office.
Sec. 43. The governor shall have authority to appoint one or more state constables, at a salary of two dollars per day when on duty, and two chief' constables, at three dollars each per day and expenses, to see that this act is enforced, the same to be charged to the еxpense account of .the state commissioner, except as otherwise provided in this act.
Sec. 44. That chapter I, title VII, of the Code of Civil Procedure of this State, entitled “ Of provisional remedies in civil actions,” shall not apply to any officer or person having duties to perform under this act, and in no case shall an action lie against any such officer or person for damages to person or property as provided in said chapter.
Sec. 45. That when any bill of indictment shall have been' given out by any solicitor or by the attorney general or án assistant attorney' general to any grand jury in any county of this State at any term of' the court of general sessions therein charging any person or persons with any violation of any of the provisions of the statutes of this State relating to spirituous, alcoholic, malt or intoxicating liquors, such grand jury shall in the opinion of such prosecuting officer, from prejudice, caprice, undue influence or improper cause, refuse to find a true bill thereon, it sliall be then and there
.Sec: 46. That whenever in this act it is provided that process shall issue upon an affidavit based on information' and belief, the affidavit shall contain a statement setting forth the sources of information, the facts and grounds of belief upon which the affiant bases his belief: Provided, That it shall not be necessary to set forth the sources of information, the facts and grounds of belief in the affidavit upon which a warrant of arrest' shall issue, hut it shall only be necessary in cases of search warrants.
Sec. 47. That this act shall be a public- 'act, and shall go . into effect immediately upon its approval-by the governor, and that all acts or parts of acts inconsistent with this act be, and are hereby, repealed.
Approved January 2d, a.». 1895.
Dissenting Opinion
dissenting.
Í' am unable to concur in the opinion of the court holding the South Carolina dispensаry law to be unconstitutional,, as applied to the facts of this case. While I see no reason to question the propriety of our rulipgs in the cases analyzed in the opinion, of Railroad Co. v. Husen,
In Leisy v. Hardin,
The effect of this enactment seems to me to withdraw intoxicating liquors from the operation of the commerce clause of the Constitution, and to permit the traffic in them to be regulated in such manner as the several States, in the exercise of their police powers, shall deem best for the general interests of the public. The act is not limited in its operation, .as the' majority opinion seems to assume, to state laws forbidding the importation, manufacture and sale of such liquors; but declares that they shall be subject, upon their arrival within the State, to the operation of all its laws enacted in the exercise
¥e cannot fail to recognize the growing sentiment in this ' country in favor .of some restrictions upon the sale of ardent spirits, and whether such restrictions shall take the form of a license tax upon dealers, a total prohibition of all manufacture or sale whatever, or the assumption by the state government of the power to supply all liquors to its inhabitants, is a matter exclusively for the States to decide.
The first section of the dispensary law;' of South Carolina declares. that, the .manufacture, sale, receipt, acceptance or keeping in possession of alcoholic liquors, exceptfwhen bought from a state officer authorized to sell the samé, aré declared to be contraband, and against the morals, good health and safety of the State, and may be. seized' wherever found without warrant. Now, as Congress has expressly declared that such articles shall, upon their arrival in the State, become subject to its laws to the same extent'as if they had been, originally produced there, and, as the dispensary act does not declare them contraband as imported liquors, or because they were imported, but. because they were not bought from a state officer authorized to sell the same, and as the law makes no discrimination in that particular between imported and domestic liquors, it is impossible for me to see why Congress has not directly authorized the action that was taken by the state officers in seizing these liquors. The power to declare intoxicating'..liquors to be contraband and to prohibit their manufacture and sale m toto was affirmed by this court in Mugler v. Kansas,
Granting that the* act gives the State itself a monopoly of all traffic in' such liquors, it is not a monopoly in the ordinary or odious -sense of the term, where one individual or corporation is given- the right to manufacture or -trade which is not open to others, but- a monopoly for the benefit of the whole people of-' the State, the profits of' which, if any, are enjoyed by the whole peoplein short, a monopoly in the same. sense in which -.the Post Office Department, and the right to carry the mails, is a monopoly of the Federal government. Lowenstein v. Evans, 69 Fed. Rep, 908.
The only objections to the dispensary law which strike meas being of any force ate the^ provisions of the fifteenth and twenty-third, sections, requiring the state commissioner to 'purchase his supplies from the brewprs and distillers in the Sftate; but even this - provision, though perhaps unwise, is subject to two conditions : first,- that their product shall reach the standard required by the act; and, second, that such supplies.'"can ,be purchased as cheaply from such brewers rand
But even if it were conceded that this particular provision of the law were inoperative, and might be so declared in a case properly raising that question, it is not of the essence of the law, but a mere incident to the power of the commissioner, and surely should not have the sweeping effect of rendering the whole law unconstitutional and void. Thе main object of the act is to preserve the health and morals of the people by securing to them pure liquors, prohibiting .individual dealings in such liquors, and requiring all such traffic to be carried on through the agencies of the State. Such methods o'f dealing with this traffic are by no means unknown abroad. Indeed, I understand the act to be but the reproduction in this country of what is known as the Grothenberg system.
It is entirely well settled that the unconstitutionality of a particular provision will not hivalidate an entire statute, unless such provision embodies the main purpose of the statute, or is so connected with such purpose that it is inseparable from it, or, unless the court can see that the legislature would not have passed the act .without such provision. This doctrine has been repeatedly affirmed by this court. Bank of Hamilton v. Dudley,
I regard these words as' particularly applicable to the dealings by this court with the .proceedings of a state legislature, and that their, right to determine what-is for the best interests of their people should be carefully respected, except where it comes in manifest conflict, witfr the dominant law. Especially should everything be avoided-which carries the suggestion of a vexatious interference .with state action. . The manifest danger's to the future of. the country, which lurk in the inflexibility of. the Federal Constitution, can only be averted by carefully distinguishing- between such laws as practically concern the inhabitants of a particular. State only, and are intended bona fide for their* welfare, and such as are a mere subterfuge for" ah unlawful discrimination, and cannot be carried into effect without doing palpable injustice to citizenof other States. It shouldnot be overlooked in.this connec
I am unable to see wherein that section of the dispensary act of South Carolina, which authorized the seizure made in this case, conflicts in any particular with the Federal Constitution.