Syllabus by the Court.
The
prisoner, Martin Keeler, was placed in the penitentiary of
South Carolina for violating an order restraining him from
selling intoxicating liquors without a license. He now
applies to the supreme court for a discharge under a writ of
habeas corpus. Petition dismissed.
The
following is Act 1894, pp. 736-738, § 22, referred to in the
opinion:
"Sec
22. All places where alcoholic liquors are sold, bartered
or given away in violation of this act, or where persons
are permitted to resort for the purpose of drinking
alcoholic liquors as a beverage, or where alcoholic liquors
are kept for sale, barter or delivery in violation of this
act, are hereby declared to be common nuisances, and any
person may go before any trial justice in the county and
swear out an arrest warrant on personal knowledge or on
information and belief, charging said nuisance, giving the
names of witnesses against the keeper or manager of such
place and his aids and assistants, if any, and such trial
justice shall direct such arrest warrant either to the
sheriff of the county or to any special constable
commanding said defendant to be arrested and brought before
him to be dealt with according to law, and at the same time
shall issue a search warrant in which the premises in
question shall be particularly described, commanding such
sheriff or constable to thoroughly search the premises in
question and to seize all alcoholic liquors found thereon,
and dispose of them as provided in section 33, and to seize
all vessels, bar fixtures, screens, bottles, glasses and
appurtenances apparently used or suitable for use in
retailing liquors, to make a complete inventory thereof,
and deposit the same with the sheriff. That under the
arrest warrant the defendant shall be arrested and brought
before such trial justice, and the case shall be disposed
of as in case of other crimes beyond his jurisdiction,
except that when he commits or binds over the parties for
trial to the next term of court of general sessions for the
county, he shall make out every paper in the case in
duplicate and file one with the clerk of the court for the
county, and immediately transmit the other to the solicitor
of the circuit, whereupon said solicitor shall at once
apply to the circuit judge at chambers within that circuit
for an order restraining the defendants, their servants or
agents, from keeping, receiving, bartering, selling or
giving away any alcoholic liquors until the further order
of the court. Such circuit judge is hereby authorized,
empowered and required to grant the said restraining order
without requiring a bond or undertaking upon the hearing or
receipt by him of said papers from the court of the said
trial justice by the hands of the solicitor; and any
violation of said restraining order before the trial of the
case shall be deemed a contempt of court and punished as
such by said judge or court, or any other circuit judge, as
for the violation of an order of injunction. Upon
conviction of said defendants of maintaining said nuisance
at the trial, they or any of them shall be deemed guilty of
a misdemeanor, punishable by imprisonment in the state
penitentiary for a term of not less than three months, or a
fine of not less than two hundred dollars, or by both, in
the discretion of the court, and the restraining order
shall be made perpetual. The articles covered by the
inventory, which were retained by the sheriff, shall be
forfeited to the state and sold and the net proceeds sent
to the state commissioner, and the sheriff shall forthwith
proceed to dispose of the alcoholic liquors covered by said
inventory as provided for in this act as when other liquors
are seized. The finding of such alcoholic liquors on such
premises, with satisfactory evidence that the same was
being disposed of contrary to this act, shall be prima
facie evidence of the nuisance complained of. Liquors
seized as hereinbefore provided, and the vessels containing
them, shall not be taken from the custody of the officers
in possession of the same by any writ of replevin or other
process while the proceedings herein provided are pending.
No suit shall lie for damages alleged to arise by seizure
and detention of liquors under this act. Any person
violating the terms of any restraining order granted in
such proceedings shall be punished for contempt by a fine
of not less than two hundred dollars nor more than one
thousand dollars nor more than one thousand dollars, and by
imprisonment in the state penitentiary not less than ninety
days nor more than one year. In contempt proceedings
arising out of the violation of any injunction granted
under the provisions of this act, the court, or, in
vacation, the judge thereof, shall have power to try
summarily and punish the party or parties guilty, as
required by law. The affidavits upon which the attachment
for contempt issues shall make a prima facie case for the
state. The accused may plead in the same manner as to an
indictment in so far as the same is applicable. Evidence
may be oral or in the form of affidavits, or both. The
defendant shall not necessarily be discharged upon his
denial of the facts stated in the moving papers. The clerk
of the court shall, upon the application of either party,
issue subpoenas for witnesses, and except as above set
forth the practice in such contempt proceedings shall
conform as nearly as may be to the practice in the court of
common pleas. That when any solicitor neglects or refuses
to perform any duty or to take any steps required of him by
any of the provisions of the preceding section or by any of
the provisions of this act, the attorney general on his own
motion, or by the request of the governor, shall in person
or by his assistant proceed to the locality and perform
such neglected duty and take such steps as are necessary in
the place and stead of such solicitor, and at his
discretion to cause a prosecution to be instituted, not
only in the matter so neglected, but also a prosecution
against the solicitor for malfeasance of misfeasance in
office, or for official misconduct, or for other charges
justified by facts, and to pursue the prosecution to the
extent of a conviction and dismissal from office of any
such solicitor. And in such event the attorney general
shall be, and is hereby, authorized and empowered to
appoint one or more additional assistants, who shall each
have while actually employed the same compensation, to be
paid from the litigation fund of the attorney
general."
GARY
J.
This is
a proceeding in habeas corpus, in which Martin Keeler
petitions this court to be discharged from imprisonment in
the state penitentiary. He was arrested under a warrant
charging him with violation of what is called the
"Dispensary Act." He waived preliminary
examination, and gave bond for his appearance at court. A
search warrant was issued against the said Martin Keeler, and
certain intoxicating liquors were found, whereupon Mr.
Solicitor Bellinger made application in writing for a
restraining order against said Martin Keeler, which was
granted by his honor, Judge Watts. Thereafter a rule was
issued against said defendant, to show cause why he should
not be attached for contempt of court in violating said
restraining order, but this rule was discharged by his honor,
Judge Watts. Subsequently, however, his honor, Judge
Buchanan, after hearing affidavits and argument of counsel
for the state and the defendant, adjudged the said defendant
guilty of contempt of court, in violating the restraining
order aforesaid, and sentenced the defendant to pay a fine of
$200 and to imprisonment in the state penitentiary for 90
days. The proceedings under which the defendant was fined and
imprisoned arose under section 22 of the dispensary act,
which section will be set out in the report of the case.
The
defendant, in his petition, presents to this court several
grounds for his discharge from imprisonment, some of which
the court has not the power to consider in habeas corpus
proceedings. The defendant has been adjudged guilty of
contempt of court and imprisoned therefor. This court will
therefore, not release the defendant from imprisonment unless
the proceedings in which he was adjudged guilty of contempt
of court are null and void, in whole or in part. The
proceeding by habeas corpus is not a substitute for the right
of appeal, and there are questions which, although they could
properly be reviewed on appeal, cannot be considered in
habeas corpus proceedings. This limitation upon the power of
the court in habeas corpus proceedings is clearly expressed
by Mr. Justice Harlan in Andrews v. Swartz, 15 S.Ct.
389, 391, where he speaks of the well-established rule that a
prisoner under conviction and sentence of another court will
not be discharged on habeas corpus, unless the court that
passed the sentence was so far without jurisdiction that its
proceedings must be regarded as void,--citing Ex parte
Siebold, 100 U.S. 371; In re Wood, 140 U.S. 287, 11
S.Ct. 738; In re Shilbuya Jugirs, 140 U.S. 297, 11
S.Ct. 770; Pepke v. Cronan, 155 U.S. 100, 15 S.Ct.
34. We will now consider the question whether the proceedings
under which the petitioner was imprisoned are null and void,
either in whole or in part. The authorities sustain the
following propositions of law: First. That the legislature
has the power to declare places where liquor is sold contrary
to law to be common nuisances, and to provide for their
abatement. Mugler v. Kansas, 8 Sup. Ct. 273; Kidd v.
Pearson, 9 S.Ct. 6; Lawton v. Steele, 14 S.Ct. 499.
Second. That the legislature has the right to provide...
