Cantini v. Tillman

• Decision Date: 01 March 1893
• Parties: CANTINI et al. v. TILLMAN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

54 F. 969

CANTINI et al. v. TILLMAN et al.

United States Circuit Court, D. South Carolina.

March 1, 1893

Von Kolnitz & Bacot, for complainants.

The bill contained the following averments:

'(1) That your orators are subjects and aliens and citizens of the kingdom of Italy, and have been since the year 1874 and now are, copartners under the firm name of G. & A Cantini, residing in the said city of Charleston, and there doing business or trading as importers and vendors of spirituous, vinous, and malt liquors, among other things, and also have been, and now are, taxpayers of the state of South Carolina.

'(2) That the defendants, the said Benjamin R. Tillman and W. T. C. Bates, are residents and citizens of the said state of South Carolina, and are officers of the said state, to wit, the said Benjamin R. Tillman is governor, and the said W. T. C. Bates is treasurer.

'(3) That the general assembly of the state of South Carolina has recently, to wit, on or about the 24th day of December, 1892, attempted to pass an act entitled 'An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein provided,' which was approved December 24, 1892, and a copy whereof, marked 'Exhibit A,' is hereunto annexed as part and parcel hereof, and to which your orators ask to be allowed to refer as fully and as often as they may desire or deem necessary, ^[1] and that the said general assembly at the same time passed an act entitled 'An act to raise supplies and make appropriations for the fiscal year commencing November 1, 1892,' whereby a tax of five and one half mills (an increase of the tax levied in former years) is levied for the 'purpose of meeting appropriations to defray the current expenses of the government for the fiscal year commencing November 1, 1892, and to meet such other indebtedness as has been or shall be provided for in the several acts and joint resolutions passed by this general assembly at the regular session of 1892, providing for the same,' and whereby said tax is made 'due and payable from the 15th day of October to the 31st day of December, 1893.'

'(4) That your orators are informed and believe that the said Benjamin R. Tillman did, within thirty days from the approval of the said act first above mentioned, appoint a commissioner, as required by section 2 thereof, but that said commissioner declined the said appointment, and that the said Benjamin R. Tillman has not yet appointed another, and is about to and will make such appointment unless restrained by competent authority. That your orators are informed and believe that the said W. T. C. Bates is about to and will expend the sum of fifty thousand dollars, or some part thereof, as appropriated and provided for by section 18 of said act first above mentioned, unless restrained by competent authority.

'(5) And your orators aver and charge that the said act first above mentioned is unconstitutional, null, and void as follows, to wit: (a) Because the said act is in violation of and repugnant to section 10, art. 1, of the constitution of the United States of America, as well as the treaty between the United States of America and the kingdom of Italy, proclaimed November 23, 1871, which said treaty is now in force, and is to be found at large at pages 845 et seq. of the 17th volume of the United States Statutes at Large. (b) Because the said act is in violation of and repugnant to section 2, art. 4, of the constitution of the United States of America, as well as to article 14 of the additions and amendments to the constitution of the United States of America, and also section 12, art. 1, of the constitution of the state of South Carolina. (c) Because the said act is in violation of and repugnant to the third clause of section 8, art. 1, of the United States constitution. (d) Because the said act is in violation of and repugnant to article 5 of the additions to and amendments of the constitution of the United States of America. (e) Because the said act is in violation of and repugnant to section 21, art. 1, of the constitution of the state of South Carolina. (f) Because the said act is in violation of and repugnant to section 21, art. 2, of the constitution of the state of South Carolina. (g) Because the said act is in violation of and repugnant 20, art. 2, of the constitution of the state of South Carolina. (h) Because the said act is in violation of and repugnant to section 18, art. 2, of the constitution of the state of South Carolina.

'(6) And your orators further complain and say that, if the said act first above mentioned be carried into operation and enforced, your orators will be damaged irreparably, and to an amount not less than five thousand dollars.

'To the end, therefore, that the said Benj. R. Tillman, as governor aforesaid, may be perpetually restrained and enjoined from appointing a commissioner as provided in section 2 of the act first above mentioned, and that the said W. T. C. Bates, as treasurer, as aforesaid, may be perpetually restrained and enjoined from expending the sum of fifty thousand dollars, or any part thereof, as appropriated and provided for in section 18 of the said act first above mentioned, and that they be restrained and enjoined accordingly likewise pending this suit, and that your orators may have such other or further relief, or both, as to this honorable court shall seem meet and proper, and the nature of the case may require, may it please your honors to grant into your orators a writ of injunction, and also a temporary order of injunction, as above set forth, and also a writ of subpoena, to be directed to the said Benjamin R. Tillman and W. T. C. Bates, commanding them at a certain day, and under a certain penalty, to be and appear before this honorable court, and to make full, true, and direct answer to all and singular the premises, (answer under oath being hereby expressly waived,) and further to stand to, abide, and perform such order, directions, and decree herein as this honorable court shall deem meet and agreeable to equity and good conscience.'

SIMONTON District Judge.

This is a proceeding to test the constitutionality of an act of the general assembly of South Carolina, commonly known as the 'Dispensary Act.' The purpose of the act, as expressed in its title, is to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein provided. There can be no doubt that the purpose thus expressed in this act is lawful. The supreme court of the United States, in Crowley v. Christensen, 137 U.S. 91, 11 S.Ct. 15, say:

'By the general concurrence of opinion of every civilized community, there are few sources of crime and misery to society equal to the dramshop, 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 sale of such liquors in this way her therefore been at all times, by the courts of every state, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day, and the days of the week, on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the state is fully competent to regulate the business, to investigate the 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 danger to the community, it may, as has been already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rests in the discretion of the governing power. * * * It is a matter of legislative will only.'

The act in question, in its first section, declares--

'That from and after the first day of July, A.D. 1893, the manufacture, sale, barter, or exchange, or the keeping or offering for sale, barter, or exchange, within this state, of any spirituous, malt, vinous, fermented, or other intoxicating liquors, or any compound or mixtures thereof, by whatever name called, which will produce intoxication, by any person, business firm, corporation, or association, shall be regulated and conducted as provided in this act.'

As we have seen, this is within the police power of the state, and is a matter of legislative will only. The general scope and purpose of the act being thus lawful, are any of its provisions in violation of the constitution of the United States?

The proceedings allege that the act is in violation of, and repugnant to, section 10, art. 1, of the constitution of the United States. This section has numerous provisions. Those which are sought to be applied to this case are the clauses forbidding any state to pass any ex post facto law, or law impairing the obligation of contracts, and the provisions forbidding a state, without the consent of congress to levy any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. The prohibition as to ex post facto laws applies only to crimes. Watson v. Mercer, 8 Pet. 88; Railroad Co. v. Nesbit, 10 How. 395; Locke v. New Orleans, 4 Wall. 172; Carpenter v....