Jellico v. Conner

• Decision Date: 05 October 1909
• Citation: 65 S.E. 725,83 S.C. 481
• Parties: JELLIC0 v. CONNER et al.
• Court: South Carolina Supreme Court

65 S.E. 725

83 S.C. 481

JELLIC0 v. CONNER et al.

Supreme Court of South Carolina

October 5, 1909

Proceeding by Thomas M. Jellico to enjoin Henry W. Conner and others. Commissioners of State Elections for the County of Charleston, from holding an election. Dismissed.

W. A Holman and Logan & Grace, for petitioner. Nathans & Sinkler and M. L. Smith, for respondents.

GARY A. J.

This is an application to the court, in the exercise of its original jurisdiction, for an order enjoining the respondents from holding an election, for the purpose of determining whether the dispensaries located in Charleston county should be reopened under and by virtue of Act 1909, p. 60, the title and sections 1, 14, 15, and 16 of which are as follows:

"An act to prohibit the manufacture, sale, barter, exchange, giving away to induce trade, the furnishing at public places or otherwise disposing of alcohol, spirituous, vinous or malt liquors or beverages, or other liquors or beverages by whatsoever name called, which if drunk to excess will produce intoxication, except for sale of alcohol in certain cases upon certain conditions, and except the sale of wines for sacramental purposes, and to provide penalties for the violation thereof.

"Section 1. Be it enacted by the General Assembly of the state of South Carolina, that all alcoholic liquors and beverages, whether manufactured within this state or elsewhere, or any mixture by whatsoever name called, which if drunk to excess will produce intoxication, are hereby declared to be detrimental, and their use and consumption to be against the morals, good health and safety of the state, and contraband. That it shall be unlawful for any person, firm, corporation or association within this state to manufacture, sell, barter, exchange, receive, accept, give away, to induce trade, deliver, store, keep in possession in this state, furnish at public places or otherwise dispose of any spirituous, malt, vinous, fermented, brewed or other liquors, and beverages, or any compound or mixture thereof which contains alcohol and is used as a beverage, and which if drunk to excess will produce intoxication, except as hereinafter provided."

"Sec. 14. This act shall take effect on the first Tuesday in August, 1909, provided, that in the counties then having dispensaries, an election shall be held on the third Tuesday in August, 1909, for the purpose of determining whether the dispensaries located therein shall be reopened, and such election in each said counties, shall be held and conducted by the same officers, and under the rules and regulations provided by law for general elections.

"Sec. 15. At such election the election commissioners for such county, shall at each voting precinct therein, provide one ballot box in which the ballots must be cast. Any person who is a qualified elector of such county may vote in said election. Every voter who may be in favor of the sale of liquors and beverages in such counties, shall cast a ballot in the box provided therefor, on which shall be printed the words, 'For sale and manufacture of alcoholic liquors and beverages'; and every voter opposed shall cast a ballot upon which shall be printed the words 'Against sale and manufacture of alcoholic liquors and beverages.' If a majority of the ballots cast in such election be 'For sale and manufacture of alcoholic liquors and beverages,' it shall be lawful for such liquors and beverages to be sold in said county as hereinafter provided: Provided, that expense of these elections shall be borne by the state.

"Sec. 16. In case an election as herein provided, shall result in favor of the sale of liquors and beverages, the dispensaries in each county so voting, shall be reopened and conducted under the provisions of an act, entitled 'An act to declare the law in reference to, and to regulate the manufacture, sale, use, consumption, possession, transportation and disposition of alcoholic liquors and beverages, within the state, and to police the same,' approved the 16th day of February 1907, and acts amendatory thereof: Provided, that all of the provisions and limitations of the said act, not inconsistent with this act, shall remain in full force and effect, in all of the counties of this state; Provided, further, that in counties which shall reopen dispensaries therein, the county dispensary board and dispensers in office on June 30, 1909, shall continue to discharge their several duties, as if such dispensary or dispensaries had not been closed; Provided, that in the counties which have heretofore voted upon the question of dispensary or no dispensary, under existing or previous laws, and have no dispensary at this time, shall have the right at any time after the expiration of four years, from the last election on the liquor question, to hold an election upon the question of dispensary or no dispensary, as provided in an act entitled 'An act to declare the law in reference to, and to regulate the manufacture, sale, use, consumption, possession, transportation and disposition of, alcoholic liquors and beverages within this state, and to police the same,' approved February 16, 1907."

It is not necessary to reproduce the other sections of the act, as they do not relate to the holding of elections.

The following are the grounds upon which it is contended that the act is unconstitutional: "That your petitioner is informed and verily believes that the holding of such election would be illegal, unconstitutional, and utterly null and void, and without any proper warrant of law whatsoever inasmuch as sections 14, 15, and 16 of said act are in conflict with, and repugnant to, the Constitution of the state of South Carolina, in the following particulars, to wit: (a) All that part of section 14 after the words 'This act shall take effect on the first Tuesday in August, 1909,' and all of sections 15 and 16, are in conflict with and repugnant to section 17, art. 3, of said Constitution, which is as follows: 'Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title'--because said sections are totally at variance with the subject expressed in the title of said act, it being respectfully submitted that the plain meaning and intent of such title is to establish prohibition; whereas, under the provisions of sections 14, 15, and 16 certain counties shall have the right to abolish prohibtion and re-establish, within their respective borders, dispensaries to sell alcoholic liquors and beverages. (b) That the provisions of section 14, above quoted, is special legislation, and in conflict with and repugnant to subdivision 11, § 34, art. 3, of said Constitution, which subdivision is as follows: 'In all other cases, where a general law can be made applicable, no special law shall be enacted'--it being respectfully submitted that the force and effect of said part of section 14 would be to require and enable certain counties in South Carolina, within two weeks after the establishment of prohibition therein, to vote upon the question of whether or not liquor shall again be sold in such counties, while in all other counties in South Carolina the citizens and taxpayers thereof would not be permitted to vote one way or the other on such question until four years had elapsed from the time when, under other laws, they had voted upon such question, and would enable said latter counties, from time to time indiscriminately thereafter, and at no stated or fixed intervals, to vote upon such question, while never again would the former counties be permitted to vote on the question once it had been determined by the election of August 17th. (c) That said sections are repugnant and in conflict with article 1, § 5, of said Constitution, which is as follows: 'The privileges and immunities of citizens of this state and of the United States, under this Constitution, shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law'--it being respectfully submitted that under the provisions of said sections the citizen of the counties enumerated in section 14 is required to exercise his election, on the question of liquor or no liquor, on August 17th; whereas the citizen of counties not referred to in said section not only is not required, but is not permitted, to exercise his election on that day, and is permitted to exercise his election...