Ex parte Keeler

Decision Date30 January 1896
Citation23 S.E. 865,45 S.C. 537
PartiesEx parte KEELER.
CourtSouth Carolina Supreme Court

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."

James E. Davis, for petitioner.

Will A. Barber, Atty. Gen., for the State.


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...

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