42 S.C. 222 | S.C. | 1894
Lead Opinion
The opinion of the court was delivered by
The issues involved in this case are far-reaching in their consequences, and of gravest moment. An act of the legislature, which has for its object the solution of the vexed question of the liquor traffic, is before this court for review, and its constitutionality is contested. The scheme of the act is novel in its features, and the court is not able to get much light from adjudications bearing directly thereon. We are, therefore, compelled, from necessity, to reach our conclusions upon a consideration of the general principles of law, on which it is founded. We trust that we enter upon the consideration of the principles involved in this case with a proper sense of the responsibility which rests upon us. The conclusions at which we have arrived, were reached after mature deliberation and careful consideration.
The issues involved herein will be seen more clearly by a short statement of facts, out of which the case arose. The relators, who were operating a dispensary by State appointment
Judge Aldrich held, under the authority of McCullough v. Brown, 41 S. C., 220, that the act of 1893 was violative of the State Constitution, null and void; that the act is not in violation of the Constitution of the United States, the amendments thereto, or the interstate commerce laws of the United. States; but that the charter of the city of Aiken does not sustain, the ordinance, and that the same was illegal and void. He further overruled the objection that che relators had ample remedy at law, and ordered the writ of prohibition to issue. Both relators and respondents appealed — the first on the ground that the judge erred in holding the act of 1893 null and void, as violative of the State Constitution, and in permitting respondents to question the constitutionality of the act; and the respondents, on the grounds that the judge erred in not holding the Dispensary Act null and void, as violative of the Constitution of the United States and of the natioual interstate commerce laws, in not holding the relators had ample remedy at law, and so are
The act of 1892 was next brought in review before the Supreme Court of this State in the cases of State ex rel. Hoover v. Town Council of Chester, and State ex rel. Groesehel v. Same, 39 S. C., 307. In these cases (which were heard together) Mr. Justice Pope, in delivering the unanimous opinion of the court, says: “As to these several [joints embodied in these four objections, wherein it is claimed that the act we are now considering
It will also be seen by an examination of those cases that the doctrine of stare decisis did not prevail when the cases of State v. Platt, 2 S. C., 150, and State v. Hagood, 13 S. C., 46, were brought in review before the court. Mr. Justice Pope, speaking for the court, says: “There have been two decisions by this court, and both most unsatisfactory, there having been a strong dissenting opinion in each — Chief Justice Moses in the case of State v. Platt, 2 S. C., 150, and the present Chief Justice in the case of State v. Hagood, 13 S. C., 46.” After citing authorities to show that the principles announced in them were erroneous, he thus proceeds: “Therefore, however unpleasant it may be to reverse previous decisions of this court, still, after full and mature consideration, we feel it to be a duty we owe the State that the case of State v. Platt, supra, should be, and is hereby, overruled; and as the case of State v. Hagood, supra, was really decided upon the authority of Platt’s case, it follows necessa
Chief Justice Simpson, delivering the opinion of the court in Suber v. Chandler, 18 S. C., 526, overruling McGowan v. Hitt, 16 Id., 602, uses this language: “The judgment which we propose to announce is directly in conflict with McGowan v. Hitt, 16 S. C,, 602. The case was decided by a divided court, Mr. Justice McIver having dissented. It is a very recent decision. Judge Pressley, delivering the opinion of the majority, stated that in several of the States cases were found holding that the statute was suspended in cases like that. * * * Under these circumstances, and upon examination finding that it has no sufficient support, either in principle or authority, in our opinion, it should be overruled, and it is so ordered.” In Piester v. Piester, 22 S. C., 115, Mr. Justice McGowan, in overruling Edwards v. Sanders, 6 S. C., 316, says: “This is the case upon which the Circuit Judge rested his decree; but with all due respect, and an anxious desire to maintain consistency in the adjudications of this court, we are constrained to say that in our judgment the case of Edioards v. Sanders is not only unsustained by proper rules of construction, but is in direct opposition to the decided cases, and what was at that time considered the settled law of the State.”
In Willis v. Owen, 43 Tex., 11, the courtsaid: “Thequestions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power as safeguards against tyranny and oppression. Certainly it cannot be seriously insisted that questions of this character can be disposed of by the doctrine of stare decisis.” Chief Justice Bleckley, in Ellison v. Railroad Co., 87 Ga., 691, very forcibly says: “Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to and repeated indefinitely, but the only treatment for a great and glaring error affecting the correct administration of justice in all courts of original jurisdiction, is to correct it. When an
In the case of Crowther v. Sawyer, 2 Speer, 578, overruling Dinkins v. Vaughan, 1 McCord, 554, Judge O’Neall, in delivering the opinion of the court, said: “That case, as a precedent, until reviewed and reversed, of course, prevented any other decision than that given on the circuit. Here, however, if we think that the case was decided wrong, it presents no such obstacle; for, although the wisdom of the maxim stare decisis is acknowledged, and we rarely think it prudent to overrule a former decision, yet when it conflicts with other decisions, or has proceeded upon a plain mistake of the law, it is our duty to put it out of the way.” In Kottman v. Ayer, 1 Strob., 577, Evans, J., said: “The effect of this is a reversal of the case of Hillegas v. Hartley (1 Hill, 106). I feel the full force of all that •has been said on the rule of stare decisis, but the case of Hillegas v. Hartley has not settled any great principle of property under which rights have been acquired, which the reversal would defeat.” In Fulmer v. Harmon, 3 Strob., 580, Richardson, J., said: “I here take the occasion to remark that I was myself the presiding judge in the ease of Slider v. Myers, and it so happens that I am now to review my decision in that case; and I propose to show that it was erroneous and ought to have been overruled, as we now overrule the present Circuit decision, for the following reasons.” In Ex parte White, 33 S. C., 450, Mr. Justice McIver, in overruling Twitty v. Houser, 7 S. C., 153, says: “While, therefore, Judge Wallace, not having the power to overrule that case, may have been justified in following it, yet, when the question reaches a tribunal which is invested with such power, it seems to us that such power should be exercised, when the former decision is not only clearly erroneous, but likely to lead to evil results; especially where such decision establishes no rule of property, and is not otherwise entitled to be adhered to under the wholesome doctrine of stare decisis.”
Mr. Justice McGowan, in Ex parte Lynch, 16 S. C., 34, says: “It is a delicate thing to declare an act of the legislature unconstitutional. This section of the Constitution must be construed, if possible, as allowing full force and effect to section 1, article 2, vesting the full legislative power of the State in the General Assembly. Implied limitations of legislative power are only admissible where the implication is necessary, or where language conveying a particular intent cannot have its proper force without such implication. The General Assembly has the general power of legislation upon all subjects not prohibited by the Constitution. ‘The legislative department is entrusted with the general authority to make laws at discretion, and is only limited by express constitutional provisions.’ Cooley Const. Lim., 87-172. ‘The constitutionality of a law must be presumed until the violation of the Constitution is proved beyond all reasonable doubt, and a reasonable doubt must be solved in favor of legislative action, and the act be sustained.’ Id., 182.” Shaw, C. J., in speaking for the court in Ex parte Wellington, 16 Pick., 95, says: “When courts are called upon to pronounce the invalidity of an act of legislation passed with all the forms and ceremonies requisite to give it force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.”
The court, in Crowley v. Christensen, 137 U. S., 90, says: “It is urged that as the liquors are used as a beverage, and the injury following them, if taken in excess, is voluntarily inflicted, and is confined to the party offending, their sale should be without restriction, the contention being that what a man shall drink, equally with what he shall eat, is not properly matter for legislation. There is in this position an assumption of a fact which does not exist — that when the liquors are taken in excess, the injuries are confined to the parties offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But as it leads to neglect of business, and waste of property, and general demoralization, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors in small quantities, to’be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. * * * The police power of the State is fully competent to regulate the business, to mitigate its evils, or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with
-(Tit is because liquor is not regarded as one of the ordinary commodities that the act of 1892, prohibiting its sale, was, as to that matter, construed to be constitutional. We can not for a moment believe that the court would have declared an act constitutional that prohibited entirely the sale of corn, cotton, or other ordinary commodities. It is fallacious to argue, in the light of this distinction, so thoroughly sustained by the authorities, that if the government can take the exclusive control of the liquor traffic, it can do so as to any'other avocations in life. In Black Intox. Liq., §24, the police power is thus defined: “It cannot be doubted, however, that the origin of this power must be sought in the very purpose and framework of organized society. It is fundamental and essential to government. It is a necessary and inherent attribute of sovereignty. It antedates all laws, and may be described as the assumption on which constitutions rest; for the'State, whether we regard it as an association of individuals or as a moral organism, must have the right of self-protection, and the power to preserve its own existence in safety and prosperity, else it could neither fulfill the law of its being nor discharge its duties to the individual. And to this end it is necessarily invested with power, to enact such measures as are adapted to secure its own authority and peace, and preserve its constituent members in safety, health, and morality. Theories of the State, according as they tend to enlarge or restrict the legitimate sphere of its functions and activities, will create theories as to the proper limitations of the police power. But its existence in a measure proportionate to the rights and duties it is to guard, is implied in the recognition of the State as a factor in law and civilizatiou. ‘It is a power,’ as has been well said, ‘essential
We find the following in Trageser v. Gray, 73 Md., 250: “We are- unable to conclude that every one, citizen or alien, can acquire rights which can in any way control, impair, impede, limit, or diminish the police powrer of a State. Such power is original, inherent, and exclusive. It has never been surrendered to the general government, and never can be surrendered without imperilling the existence of civil society.” Mr. Justice Field, in his dissenting opinion in Slaughter House Cases, 16 Wall., 36, although he denied the application of the doctrine of police power to the cases then before the court, says: “If it really were a police regulation, it would undoubtedly be within the power of legislation.” Chief Justice Waite, in Stone v. Mississippi, 101 U. S., 814, says: “No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental powers is continuing in its nature, and they are to be dealt with as the special exigencies of the government may require. Government is organized wi.th a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.”
There are expressions of Mr. Justice McGowan in the case of Town Council v. Pressley, 33 S. C., 56, tending to sustain this view. That ease also shows that the court cannot question the discretion exercised by the law-making body in adopting such measures as, in its judgment, seemed best under its power of police. In that case he says: “Undoubtedly, as a rule, every man may cultivate .his own land in his own way, but even in that case he may use his land in such manner as to amount to ‘a nuisance,’ indictable at common law. That, however, does not touch the question under the ordinance passed by virtue of the powers conferred upon corporate authorities by the legislature ‘for preserving the health, peace, order, and good government of the town.’ The ordinance, by its declared purpose, was a police regulation for preserving the health of Summer-ville, a small town in the pines, about twenty miles out of Charleston, which afforded a convenient summer resort for health. Assuming, for the present, that the town council had the power to pass the ordinance, no question can be made whether ‘a nuisance’ had been created, nor whether the restrictions complained of were necessary to accomplish the purpose in view. It was their exclusive right to judge what was necessary and requisite to preserve the health of the town. 1 Dill. Mun. Corp., § 144, and authorities in note.” Again: “The State, through the law-making body, certainly possesses the police power, which, from its very nature, has no well defined limits, but must be as extensive as the necessities which call for its exercise. Judge Dillon describes it thus: ‘Every citizen holds his property subject to the proper exercise of this [police] power, either by the State legislature directly, or by public corporations to which the legislature may delegate it.’ ” Again: “If the legislature itself had passed the Summerville ordinance
It will be seen from that case that the power of police is so great that under its exercise a person may be restricted as to the area of land he shall be allowed to cultivate under certain circumstances; yet it is contended that the State cannot take control and management herself of the liquor traffic. In Muglar v. Kansas, 123 U. S., 660, the court says: “But by whom or by what authority is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public'? Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system, that power is lodged with the legislative branch of the government. It belongs to that department to exert what is
In the case of State v. County of Wapelo, 13 Iowa, 419, the court says: “Will it be said that the State can confer a police power which she herself does not possess? We do not believe that such is the theory or nature of the legislative department of our State government. We know that she may confer powers upon the judicial and executive departments, and authorize them to do acts which she herself could not do, for the reason that these are distinct and co-ordinate branches of the government, the functions of which cannot be performed by the General Assembly, but which, nevertheless, are to a certain extent under legislative control and regulation. When we say, therefore, that the legislature cannot bestow upon her subdivisions rights and powers reserved by the Constitution from her, we mean, of course, a police power. These subdivisions receive their corporate existence and all their corporate duties and powers from the legislature. They are intended as instruments of government in the hands of the legislature to aid it in the administration of its public regulations within certain prescribed localities. This being the case, it is competent for the legislature at any time to suspend these agencies and reclaim the powers which she had thus conferred, and execute them directly herself.” Cooley Const. Lim., p. 119, says: “The constituent, when he has delegated an authority without an interest, may do the act himself which he has authorized another to do, and especially when that constituent is the legislature, and is not prohibited by the Constitution from exercising such authority. Indeed, the whole authority might be revoked, and the
The act shows that the legislature had in view the protection of the “morals, good health, and safety of the State” in dealing with this question. Many safeguards are thrown around the sale of the liquor. The commissioner is to be an abstainer from intoxicants. The liquor is to be tested by the chemist and declared to be pure. The liquor is to be sold only by the package, which cannot be opened nor drunk where sold. The sales can only be made in daytime. Persons cannot be appointed on the
It has been argued that there was no necessity for this regulation by the State; that the same results could be accomplished by allowing private individuals to carry on the traffic, and for this reason the act is null and void. The necessity was a question exclusively for the legislative department, as shown by TlFeToregoing^aiithorities, particularly Town Council v. Pressley, 33 S. C., 56. The judiciary “cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking powers.” The State has the right, through its own officers — in fact, it is its primary duty — to enforce its police regulations, which right inheres in government itself, and is paramount to any right inherent in citizenship. But, referring to the foregoing objection, as matter of fact, it would not be as efficiently enforced by private individuals, because there would be the constant temptation to make as large profits as possible. Chief Justice McIver, in McCullough v. Brown (p. 241), says: “By its profit feature it holds out an inducement to every taxpayer to encourage as large sales as possible, and thereby lessen the burden of taxation to the extent of the profits realized.” Now, if the indirect profits in the case mentioned are sufficient
There is nothing in the act showing that its primary object is "the raising of revenue. The sales are to be made under rules .adopted by the county board of control, and approved by the State board of control. It is certainly possible for the objects of the act to be carried into effect under proper rules adopted for that purpose. It is within the power of the boards of control to eliminate the profit feature altogether. It is presumed that public officials will discharge the duties of office in a lawful manner, until the contrary appears. When a case is brought before this court contesting the legality of the rules adopted by the boards of control, it will be time enough then for this court to pass upon the revenue feature. Suffice it to say, no such question is now before usTJ
The second objection is that the act is in violation of sec. 2,
The court does use the following language in Feldman v. City Council, 23 S. C., 63, which is relied on to sustain the theory of implied limitations upon the legislative power: “When, in addition to this, we find that the Constitution of 1868, in art. I., sec. 41, expressly declares that ‘the enumeration of rights in this Constitution shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people,’ we think there can be no doubt that, even in the absence of any express restrictions upon the taxing-power of-the legislature, such power can only be exercised for some public purpose, and that whenever it is attempted to be exercised for a private purpose, it is the duty of the courts to declaresnch legislation void.” The very definitions of taxation, making it clear that it must be for a public purpose, showed
The cases cited in support of the doctrine of implied limitations upon the legislative authority were in regard to taxation, as to which it was not necessary to resort to such doctrine, for the simple reason, that the very definition of taxation shows it must be for a public purpose, and, therefore, an act of the legislature attempting to raise money for a private purpose is null and void. Mr. Tiedeman, in his Limitations of Police Power (page 468), says: “A tax is, in the most comprehensive sense, any charge or assessment levied by the government for public purposes upon the persons, property, and privileges of the people within the taxing district or State.” Black, C. J., in Sharpless v. Mayor, 21 Pa. St., 160, which is one of the leading cases against the doctrine of reserved constitutional limitations, shows that taxation necessarily means the raising of revenue for a public purpose. In that case he says: “The legislature has no constitutional right * * * to lay a tax, or to authorize municipal corporations to do it, in order to raise funds for á mere private purpose. No such authority passed to the assembly by the general grant Of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation, and becomes plunder.”
The case of Allen v. Jay, 60 Me., 124, 11 Am. Rep., 185, quoted with approval in the case of Feldman v. City Council, supra, defines taxation as follows: “A tax is a sum of money assessed under the authority of the State on the persons or property of an individual. Taxation, by the very meaning of the term, implies the raising of money for public uses, and excludes the raising if for private objects or purposes.” The case of
. To hold that there are reserved limitations of this nature is to make the Constitution give place to the will of the court upon legislative matters. Different judges might differ as to what was of common right, or against thespirit of civil liberty, and the law would thus be left in uncertainty. The unreasonableness of such construction is shown by the following illustration: It was formerly contended that “equity was not bound by rules or precedents, but acted from the opinion of the judge, founded on the circumstances of every particular case.” In a note to Bl. Comm. bk. 3, p, 432, note y, the annotator, commenting on the doctrine just stated, says: “This is stated by Mr. Selden (Table Talk, tit. ‘Equity,’) with more pleasantry than truth: ‘For law we have a measure, and know what to trust to; equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. ’Tis all one, as if they should make the standard for the measure the chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot, another a short, foot, a third an indifferent foot. It is the same thing with the chancellor’s conscience.’ ”
I. As we have said, if the act is not a police measure, it is unconstitutional. It is quite a different thing, however, when trade is simply an incident to a police regulation. Buying and selling on the part of the federal, State, and municipal governments take place every day, and as long as the buying and selling are in pursuance of police regulations, they are entirely free from legal objection. The federal government sells liquor and other articles that have been seized as contraband. Articles are purchased by the State to keep up the penitentiary and asylum and other public institutions and enterprises. We see it buying a farm to utilize the convict labor of the State, and selling the produce made on the farm. Municipal governments have the right to buy and dispose of property in administering their governmental affairs. The very distinction for which we contend is pointed out in the case of Mauldin v. City Council, 33 S. C., 1. In that case the court showed it was not wrong for the city to buy and sell for a public purpose, but that the act only became illegal when it was for a private purpose. We think the case was properly decided, and that the decision rested upon this distinction.'
The case of Beebe v. State, 6 Ind., 501, was upon the construction of a statute of Indiana somewhat similar to the act in question, and is relied upon as an authority to sustain the proposition that the State cannot take direct control and management of the liquor traffic. In that case the court uses the following language: “The business [the manufacture and sale of liquor] was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee, and rice, and the raising of potatoes” (italics ours). This caséis in conflicbwith the distinction made between liquor and the ordinary commodities of life, as enunciated in .the case of Crowley v. Christensen, supra; Black Intos. Liq., supra; State v. Turner, 18 S.C., 106; and other authorities hereinbefore mentioned. If liquor is to be placed on the same footing with the articles mentioned
The case of Rippe v. Becker (Minn.), 57 N. W., 331, is also relied upon to sustain the constitutional objection to the act of 1893. The title of the act construed in Rippe v. Becker was, “An act to provide for the purchase of a site, and for the erection of a State elevator or warehouse at Duluth for public storage of grain.” The syllabus of the case prepared by the court states: “The police power of the State to regulate a business is to be exercised by the adoption of rules and regulations as to the manner in which it shall be conducted by others, and not by itself engaging in it.” The language of the court, as applying to that case, was proper, and we think the case was properly decided in the light of the distinction between liquor and the ordinary commodities of life which we have pointed out. There was nothing in the business dangerous to the health, morals, and safety of the people, and the act should have been declared null and void.
On the one side it is contended that “arrival” means “destination,” or “the place to which the liquors are consigned;” on the other side it is urged that “arrival in the State” means “when the territorial limits of the State have been entered.” The act does not speak of the arrival of the liquors at their destination or the place to which they are consigned, but of their “arrival in the State,” which would seem to indicate the time when the liquors cross the borders and enter the territorial limits of the State. We are, however, unwilling to rest our construction on so important a question upon a mere quibble as to the meaning of a word which is susceptible of being used in more than one sense, but to construe the act in the light of the circumstances that led to its adoption. The subjects affected by the laws of interstate commerce are divided into two classes: first, those that are local in their nature; and, second, those national in character. This distinction is announced in the case of County of Mobile v. Kimball, 102 U. S., 697, in which Mr. Justice Field, delivering the opinion of the court, says: “The subjects, indeed, upon which Congress can act under this power are of infinite variety, requiring for their successful management different plans or modes of treatment. Some of them are national in their character, and admit aud require uniformity of
Under the decision of the Supreme Court of the United States, liquor was held to be a subject of commerce, and national in its character. It was settled at an early date in the history of the national government, that the State, under its police power, could legislate upon those subjects of local nature until Congress saw fit to interfere and supersede the State law. It was, however, a vexed question for a long time in the courts
The decision in this case caused the passage of the act of Congress of 1890, and the reasons leading to its adoption are well expressed in the dissenting opinion of Mr. Justice Gray (concurred in by Mr. Justice Harlan and Mr. Justice Brewer) in .that case, in the following words: “How far the protection of the public order, health, and morals demands restriction or prohibition of the sale of intoxicating liquors, is a question peculiarly appertaining to the legislatures of the several States, and to be determined by them upon their own views of public policy, taking into consideration the needs, the education, the habits, and the usages of people of various races and origin, and living in regions far apart, and widely differing in climate and in -physical characteristics. The local option laws prevailing in many of the States indicate the judgment of as many legislatures that the sale of intoxicating liquors does not admit of regulation by a uniform rule over so large an area as a sin
The intention of Congress was to deprive liquor of its national character as a subject of commerce, make it local in its
The first exception of respondent was, on motion of respondent’s attorney, withdrawn by a formal order of this court, and will not, therefore, be considered. The principles herein announced render it unnecessary to consider the other exceptions.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, for the reasons herein set forth.
Dissenting Opinion
dissenting. As I cannot concur in the conclusions reached by the majority of this court in this case, I propose to state as briefly as practicable the grounds of my dissent. Inasmuch as it is distinctly admitted in the opinion prepared by Mr. Justice Gary, uow under review, that while there are certain minor differences between the two acts of 1892 and 1893, relating mostly to the administrative features of the law, yet “that the principles upon which the act of 1892
A sufficient answer to this question is, in my judgment, the well settled and wholesome doctrine of stare decisis; for while no one, so far as I am informed (I certainly do not), doubts the power of this court to overrule a former decision, yet the wisdom or propriety of exercising such a power, presents a very different question. Text-writers, as well as courts of the highest authority, warn us against the exercise of this admitted power, even where the court may regard a former decision as erroneous in some respects. See Kent’s twenty-first lecture, which will not be quoted from here, as it is largely quoted from in a decision of this court which will presently be cited. In Wright v. Sill, 2 Black, 544, the Supreme Court of the United States uses this language: “Whatever differences of opinion may have existed in this court originally in regard to these questions, or might now exist, if they were open for reconsideration, it is sufficient to say that they are concluded by these adjudications.” In Minnesota Co. v. National Co., 3 Wall, 332, the same tribunal, in speaking of^e inififfiTaiKte of adhering to former decisions, used this language: “Parties should not be encouraged to speculate on a change of the law when the administrators of it is [are] changed.”
But I do not propose to rest my dissent solely upon the doctrine of stare decisis, but will proceed to consider whether the principles upon which the decision in McCullough v. Brown rests have been shown to be erroneous; for, until that is done, every one must admit, as Mr. Justice Gary frankly does admit, that such decision must be followed in this case. I do not, of course, propose to reproduce here the reasoning employed or the authorities cited in the previous decision, except in so far as it may be necessary to correct what appear to me to be certain misconceptions of the grounds upon which the former decision was rested. While, therefore, still relying upon, but not repeating here, such reasoning and authorities, I proceed to notice certain points in which, as it seems to me, the former decision has been entirely misunderstood. Inasmuch as it was
Another misconception of the grounds upon which the decision in McCullough v. Brown was rested will be found in the unwarranted assumption that the court in that case denied the power of the legislature to embark the State in a trading enterprise upon some vague ground that it is in violation of the fundamental theories of republican institutions, or, as it has
In that opinion the following language is used (p. 248): “Finally, the constitutionality of the Dispensary Act is assailed upon the grounds that the legislature have undertaken thereby to embark the State in a trading enterprise, which they have no constitutional authority to do — not because there is any expressed prohibition to that effect in the Constitution, but because it is utterly at variance with the very idea of civil government, the establishment of which was the expressly declared purpose for which the people adopted their Constitution; and, therefore, all the powers conferred' by that instrument upon the various departments of the governments must necessarily be regarded as limited by that declared purpose.” And again, after showing that this doctrine of implied limitations upon the legislative power had been recognized and applied in cases of taxation by the Supreme Court of the United States and by this court itself, as well as by the courts of other States, we find this language (p. 249): “Upon the same principle, it seems to us clear that any act of the legislature which is designed to, or has the effect of, embarking the State in any trade which in
If there is anything in this language which contains the gist of the argument upon w-hich the proposition that the legislature had no power to embark the State in a trading enterprise, that contains any hint or suggestion even that the majority of the court rested its conclusion upon this point in the case upon any such principles as have been unwarrantably assumed to be the basis of the former decision as set out above, I must confess my inability to perceive it. On the contrary, the conclusion formerly reached was rested solely upon the ground that, although the Constitution contained no express provision prohibiting the legislature from embarking the State in a trading enterprise, yet such a prohibition was necessarily implied by the terms used in the Constitution, expressly declaring the purpose for which that instrument was adopted, as well as by the express terms used in section 41 of article 1 of the Constitution.
This brings me to notice another misconception of the view taken of that section in the former case. It seems to be supposed that the majority of the court in the case of McCullough v. Brown construed that section as meaning that a portion of the legislative power had been reserved by the people, and, therefore, the portion so reserved could not be exercised by the legislature, and the case of State v. Hayne, 4 S. C., 403, is again cited to refute such supposed view. In the former case the majority of the court used the following language (p. 249): “It seems to us that the true construction of this clause is that, while there are many rights which are expressly reserved to the people, with which the legislature are forbidden to inter
Indeed, the construction placed upon this clause of the Constitution by the majority of the court in the case of McCullough v. Brown, is practically the same as that adopted by Willard, C. J., in State v. Hayne, supra, for he says: “The true effect of this declaration is that it reserves to the people whatever is not granted by the instrument, as, for instance, the right to make changes in the form of government is not granted, and under this clause remains in the hands of the people, capable of exercise when they may see fit to do so.” The form of expression used, “as, for instance,” shows that the right to change the form of government, used merely as an illustration, was not the only right reserved by this clause of the Constitution; and I may venture to add another illustration, as, for instance, the right to settle any disputed question of science by legislative act is not granted, and, therefore, is beyond the competency of the legislature, though not expressly forbidden, but is forbidden by necessary implication. Why? Because it is altogether outside of the declared purpose in forming the Constitution, and, therefore, beyond the purview of the legislative power therein granted. Other illustrations might be used, but, as time is pressing, I will, as Mr. Chief Justice Willard did, content myself with one. It is very obvious, therefore, why it was not deemed necessary to refer to the case of State v. Hayne in Feldman v. City Council, 23 S. C., 57.
In this connection, it may be well to notice the criticism of Mr. Justice Gary upon that case. His view, as I understand it, is that, while the decision .in that case was right, it was placed upon an erroneous ground; that the very nature and definition of the term “taxation,” necessarily implied that it
The next inquiry, therefore, is, whether this dispensary legislation can be regarded as a legitimate exercise of the police power. And first, it will be necessary to determine where such legislation is to be found. It certainly is not to be found in the act of 1893 alone, for that view is clearly negatived by the title of that act, as well as by the terms used in its repealing clause. The title of the act of 1893 is as follows: “An act to 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
The next question is, whether such legislation can properly be regarded as a legitimate exercise of the police power of the State. Without repeating here the reasoning and the authorities used in the majority opinion of this court in McCullough v. Brown, to show that this legislation cannot be regarded as a legitimate exercise of the police power, though still relying upon the same, I will proceed to consider some other views upon this subject presented in the argument of the case now before the court, and in the consideration of this case by the court. Before doing so, however, I must be permitted to advert to what I consider a very dangerous doctrine, asserted in the former case, and again insisted upon in this case. That doctrine, as I understand it, is, that the police power of the State is limited only by the will of the legislature, except, perhaps, in those cases where certain powers have been denied to the States by the provisions of the Federal Constitution. Hence, it is argued that when the legislature passes an act declaring it to be intended as a police regulation, the court have no right to inquire whether such act is, in fact, a police regulation, and, as such, a legitimate exercise of the police power. I cannot subscribe to any such doctrine, for it would subject the rights
These views, which it seems to me are fully supported by reasoning from the nature of the case, are also sustained by authority. To show this, it is only necessary to refer to the case of McCandless v. Railroad Co., 38 8. C., 103, and to what is said by Mr. Justice Harlan in the case of Mugler v. Kansas, 123 U. S., at pages 660, 661, a case quoted from in the opinion of Mr. Justice Gary. It seems to me that the use of the word “primarily” in the quotation is sufficient to show that the learned judge recognized the doctrine for which I contend— that while the legislature must of necessity “primarily” determine what measures are needful or appropriate for the protection of the public morals, &c., yet such determination is not final and conclusive. But if there is any doubt as to the true meaning of the sentence quoted, that doubt is effectually dissipated by the language immediately following, which is not quoted: “It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. * * * The courts are not bound by mere forms,
I proceed next to inquire whether the dispensary legislation can be regarded as a legitimate exercise of the police power. It seems to me clear beyond dispute that it cannot. As is said in the quotation from Black on Intoxicating Liquors, found in Mr. Justice Gary’s opinion, the maxim, “Sicuteretuoutalienum non Icedas,” furnishes the general rule for the application of the police power. In other words, that power can only be exercised for the purpose of restraining one citizen from so using his own rights or property as to work injury to the rights of another. To apply this abstract principle to the particular subject with which we are dealing, under the police power the law-making department of the government may throw such restraints around the traffic in spirituous liquors as may be deemed necessary to protect the health, morals, and safety of the community, and may even -go further, and absolutely prohibit such traffic, provided it is inherently and necessarily injurious to society. But this power is to be exerted for the purpose of restraining the citizen in the exercise of his rights to trade in any lawlul article of commerce, and cannot be so extended as to authorize the State to engage in a traffic forbidden to the citizen. The police power reaches its limit when it restrains or prohibits a citizen from engaging in a traffic regarded as hurtful to society, and cannot be exercised for the purpose of enabling the State to engage in such traffic.
This proposition has been distinctly decided in the only case, so far as I know, in which this proposition has been directly presented. In the case of Rippe v. Becker, 1 Minn., I find the following language in the syllabus, prepared by the
An attempt is made to draw a distinction between the application of the police power to the traffic in spirituous liquor and to other subjects, to which such a power may be applied. I am unable to discover any foundation for such a distinction, either in reason or authority. While it may be true that the mode of exercising the power may be different, according to the subject to which it is applied, and the regulation may be much more stringent in one ease than in the other, yet the foundation of the power, and the principle upon which it is exercised, is the same, no matter what the subject may be to which it is applied. The regulations which have, from time to time, been adopted by which the traffic in spirituous liquors has been controlled, are fully j ustified as a legitimate exercise of the police power,' because it is generally, if not universally, regarded as a traffic dangerous to society if unrestrained and unregulated by law. Upon the same principle the traffic in
It seems to me, also, an entire mistake to argue that, because the State may delegate the exercise of the police power to some subordinate governmental agency — as, for example, a municipal corporation — it may also delegate such power to a private citizen, and that it does so delegate it when it issues a license to a saloon keeper to sell spirituous liquors. While it is not doubted that the State may and has delegated the police power to some subordi nate governmental agency, such as a municipal corporation, within the limits of such corporation, I do most emphatically deny the power of the legislature to delegate any portion of its legislative power — police power or anything else — to a private citizen; and, so far as I am informed, neither this State nor any other has ever undertaken to do so. When the legislature passes an act forbidding the sale of spirituous liquors by any private citizen without a license, and prescribes the conditions upon which such a license may be obtained, this is done by the State, through its legislative department, in the exercise of the police power of the State; and when the person to whom the license has been issued sells any spirituous liquor, he does so not by virtue of any police power delegated to him, but by virtue of his compliance with the regulations prescribed by the State in the exercise of its police power. But, as was held in the case of Mauldin v. City Council, 33 S. C., 1, even where the State delegates the police power to a municipal corporation in the broadest and most unlimited terms, the corporation could not,
There is another consideration which conclusively shows that this dispensary legislation cannot be regarded as a legitimate exercise of the police power. Both of the acts of 1892 and 1893 manifestly contemplate that, as a part of the scheme, the State authorities shall sell spirituous liquors outside the limits of this State, and upon this construction of the act of 1892, the State authorities have acted, as may be seen by reference to the ease of South Carolina v. Seymour, 153 U. S., 353, where, in the oath of the governor in support of the petition for the registry of the trade-mark adopted by the State, it is stated, “that the said trade-mark is used by the said State in commerce with foreign nations or Indian tribes, and particularly with Canada.” This feature of this dispensary legislation, together with its profit features, commented on in the former decision, show to my mind very clearly that the whole scope and intent of this legislation was to enable the State to monopolize the liquor traffic, to the entire exclusion of the citizens, with a view to the profit of such traffic. This is made more apparent when it is seen that the same legislature which passed the act of 1893, passed another act on the same day, providing that the profits of the dispensary in the county of Clarendon should be applied to the past indebtedness of that county. See acts 1893, p. 452.
As a justification for the State entering into the business of buying and selling liquors, reference is made to the fact that the federal, State, and municipal governments buy and sell articles without question as to their authority so to do; and reference is made to the practice of the penitentiary and lunatic asylum, both of which institutions buy articles for the support thereof, and. sell the products of the labor of the in
But, without pursuing the subject further, it seems to me that it has been shown in this and in the opinion of the majority of the court in the case of McCullough v. Brown, that spirituous liquor is a lawlul article of commerce; and this is so acknowrledged by the Supreme Court of the United States even since the passage of the Wilson bill, as may be seen by reference to the case of In re Rahrer, 140 U. S., 545, cited by Mr. Justice Gary under the name of Wilkerson v. Rahrer — a case which arose after the passage of that bill — where Mr. Chief Justice Fuller uses this language: “Unquestionably, fermented, distilled, or other intoxicating liquors or liquids are subjects of commercial intercourse, exchange, barter, and traffic between nation and nation, and between State and State, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts” — that, this being so, every citizen of this State has a constitutional right to engage in such traffic, subject, however, to the right of the State government, in the exercise of its police power, to throw such restraints around such traffic by the citizen as may be deemed necessary to protect the morals, health, and safety of the community against the evils incident to such traffic, or, if such traffic is inherently and necessarily injurions to society, may
Having reached this conclusion, it is scarcely necessary to go further and inquire, especially in a dissenting opinion, whether the legislation which has been under consideration violates the Federal Constitution'. But I may add, without going into any discussion of the federal question, that it seems to me that so much of this dispensary legislation as purports to forbid a citizen of this State from importing, either from a foreign country or from another State of this Union, any spirituous liquors for his own use, is in violation of sec. 8, art. I., of the Constitution; for it will be observed that even the Wilson bill does not forbid such importation, nor does it authorize any State to do so. On the contrary, its language necessarily implies that liquor may be transported from one State into another, and all that such bill purports to do is to subject such liquor, upon its arrival in a State, to the laws of such State.
Judgments affirmed.
