Easley Town Council v. Pegg

• Decision Date: 14 March 1902
• Citation: 41 S.E. 18,63 S.C. 98
• Parties: EASLEY TOWN COUNCIL v. PEGG.
• Court: South Carolina Supreme Court

41 S.E. 18

63 S.C. 98

EASLEY TOWN COUNCIL v. PEGG.

Supreme Court of South Carolina

March 14, 1902

Appeal from common pleas circuit court of Pickens county; Aldrich Judge.

William Pegg and Isabella Pegg were indicted for illegal sale of liquors. From an order affirming the conviction of William Pegg, he appeals. Reversed.

Morgan & Blassingame, for appellant. Carey & McCullough, for appellee.

JONES J.

The appellant, William Pegg, was tried before the intendant of the town of Easley and a jury for a violation of a town ordinance in relation to the storing and keeping in possession of spirituous liquors, and, having been convicted and sentenced, appealed to the court of general sessions which court affirmed the judgment of the town court.

1. Appellant's first exception to the judgment of the circuit court is that there was error in holding that section 23 of the town ordinances of Easley was valid, when he should have held same void, because inconsistent with and contrary to the dispensary act in particulars which will hereinafter be noticed. The act amending the charter of the town of Easley, approved December 26, 1885 (19 St. at Large, p. 420) gives the town council power to pass such ordinances as shall appear to them necessary and requisite for the security welfare, and convenience of the said town, provided that no fine shall exceed $100, and no imprisonment shall exceed 30 days; and provided such ordinance be not contrary to the laws of this state. Section 23, art. 1, of the ordinance in question, under a penalty of not less than $100 fine, or not less than 30 days' imprisonment or labor on the streets prohibits, among other things, the "storing and keeping possession within the town of Easley of any spirituous, & c., liquors, except as is now provided by law regulating the sale of liquors, etc., by dispensaries." Article 2 of said section provides: "That all liquors, except when purchased by [of] a state officer authorized to sell same, are hereby declared to be contraband, and subject to seizure by the marshal of the town, without warrant; and the person or persons who have or hold them in possession either on or about their premises, upon conviction shall be fined not less than twenty-five nor more than one hundred dollars, or suffer imprisonment for less than ten nor more than thirty days, or labor on the streets." It is contended that the ordinance is void, as contrary to the dispensary act, because the ordinance declares all liquors contraband except when purchased from a state officer. The dispensary act, as amended March 5, 1897 (22 St. at Large, p. 537), in section 1, declares: "All alcoholic liquors in this state, whether manufactured within this state or elsewhere, not having been tested by the chemist of the South Carolina College and found to be pure and free from poisonous, hurtful and deleterious matters, are hereby declared to be of a detrimental character, and their use and consumption are against the morals, good health and safety of the state, and all such liquors may be seized wherever found without a warrant and disposed of as hereinafter provided." And in section 35 of the dispensary act of 1896 (22 St. at Large, p. 146) it is enacted that "all alcoholic liquors other than domestic wine which do not have on the packages in which they are contained the label and certificates going to show that they have been tested by the chemist and purchased from a state officer authorized to sell them, are hereby declared contraband," etc. As under the dispensary law no state officer is authorized to sell liquors which have not been so tested and certified, the ordinance makes only such liquors contraband as are contraband under the dispensary act. There is, therefore, no inconsistency in the particular named. It is excepted that the ordinance is inconsistent with the dispensary act, because it declares all persons guilty of a crime "who have or hold in possession either in or about their premises" such contraband liquor, whereas the dispensary act makes criminal the storing and keeping in possession of contraband liquor. We do not think the case made requires any consideration whether there is conflict between the ordinance and the statute. The intendant reported to the circuit court that the defendant was convicted "of storing and having in possession contraband whisky in the town of Easley, in violation of the ordinances of said town," and the circuit court, in the judgment rendered, states that the defendant was tried before said intendant and a jury upon a charge of storing and keeping in possession contraband spirituous liquors within the corporate limits of the town of Easley, in violation of an ordinance of said town, and no exception has been made to such statement. The defendant, as it thus appears, was tried for an offense under article 1, above stated, which is not inconsistent with the dispensary act in the particulars...