Mccullough v. Brown County Bd.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMcIVER
Citation19 S.E. 458,41 S.C. 220
Decision Date19 April 1894
PartiesMcCULLOUGH et al. v. BROWN et al.County Board. STATE v. JACOBS. SAME v. TROEGER. SAME v. FAGAN et al. SAME v. BYRD. SAME v. DAVID.

19 S.E. 458
41 S.C. 220

McCULLOUGH et al.
v.
BROWN et al.County Board.

STATE
v.
JACOBS.
SAME
v.
TROEGER.
SAME
v.
FAGAN et al.
SAME
v.
BYRD.

SAME
v.
DAVID.

Supreme Court of South Carolina.

April 19, 1894.


Intoxicating Liquors — Dispensary Act — Constitutionality— Board op Control—Injunction—When will Lie.

1. Act Dec. 24, 1892, known as the "Dispensary Act, " forbidding the sale, or keeping for sale, of intoxicating liquors within the state by a private individual, and vesting the right to sell such liquors in the state exclusively, by certain designated officers and agents, for the purpose of profit to the state, is in violation of Const, art. 1, § 1, which provides that all men are endowed by their Creator with the inalienable rights "of enjoying and defending their lives and liberties, of acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness;" and section 14, which declares that no person shall be despoiled or dispossessed of his property, immunities, or privileges, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land. Pope, J., dissenting.

2. Intoxicating liquor is a lawful subject of commerce, and the traffic therein is not in itself unlawful, and the state cannot prohibit its citizens from engaging in such traffic except in the exercise of its police power.

3. Such dispensary act is not a police regulation of the business of selling intoxicating liquors, in that it does not prohibit the sale except by the citizens of the state, but encourages such sale by providing that the profits thereof shall inure to the state; and in that it gives the state a monopoly of the business, and the police power of the state does not extend to the regulation of a business conducted by itself. Pope, J., dissenting.

4. A statute which is designed, or has the effect, to embark the state in any trade which involves the purchase and sale of an article of commerce for profit, is not within the legislative power conferred on the general assembly by the constitution, though there may be no express provision forbidding such an act. Pope, J., dissenting.

5. Injunction will lie at the instance of taxpayers to restrain the county board of control from establishing a dispensary in a certain place, on the ground that the dispensary act providing for such establishment is unconstitutional. Pope, J., dissenting.

Appeal from common pleas circuit court of Darlington county.

Appeals from general sessions circuit court of Richland county; J. H. Hudson, Judge.

Action by Charles S. McCullough and J. Witherspoon Evans against George Just Brown and others, county board of control of Darlington county, S. C, brought by plaintiffs, on behalf of themselves and other taxpayers, for an injunction to restrain defendants from establishing a dispensary in the town of Darlington, in such county, under the provisions of Act Dec. 24, 1892, known as the "Dispensary Act." From a judgment for plaintiffs, defendants appeal. Affirmed. Indictment of Thomas Fagan, Jerome Fagan. and James Ivey, jointly, and four others separately, for selling intoxicating liquors in violation of such dispensary act From a judgment in each case sustaining a demurrer to the indictment, the state appeals. Affirmed.

The pleadings in the action for an injunction, referred to in the majority opinion, are as follows:

"The complaint of the above-named plaintiffs respectfully shows to this court:

"First. That Charles S. McCullough is a resident and freehold voter of the town of Darlington, and a taxpayer of the said town and county of Darlington and the state of South Carolina; and that J. Witherspoon Evans is the towu clerk of the town of Darlington,

[19 S.E. 459]

and a taxpayer of the county of Darlington and state of South Carolina; and that this action is brought on behalf of themselves and other freehold voters and taxpayers of the town and county of Darlington, too numerous to be made parties to this action.

"Second. That the general assembly of the state of South Carolina has recently, to wit, on or about the 24th day of December, 1892, passed 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 said act was approved December 24, 1892.

"Third. That the said act is unconstitutional, null, and void, as follows, to wit: (a) Because said act is in violation of and repugnant to section 8, art. 1, of the constitution of the United States; (b) because the said act is in violation of and repugnant to article 7 of the additions to and amendments of the constitution of the United States, and also sections 11 and 14, art. 1, of the constitution of the state of South Carolina; (c) 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; (d) because the said act is in violation of and repugnant to sections 1 and 4, art 9, of the constitution of the state of South Carolina; (e) because the said act is in violation of and repugnant to the constitution of South Carolina, in that under the constitution the state is invested with no power or right to trade in intoxicating liquors for revenue, to the exclusion of the citizens of this or other states of the United States, and because the said act does not lie within the police power reserved by the people to the state of South Carolina.

"Fourth. That, under and pursuant to the provisions of the said act, the said Geo. Just Brown, J. P. Kirven, and W. P. Carter, defendants above named, have been duly appointed as the county board of control for the county of Darlington.

"Fifth. That on the 29th day of May, 1893, the said board of control met at their office in the town of Darlington, and among other things appointed Wednesday, the 7th day of June, 1893, as the day upon which applicants for the position of county dispenser should file their respective petitions, as required by the provisions of the said act; and that due notice of the same was given to the public.

"Sixth. That on the appointed day, to wit, the 7th day of June, 1893, one John Buckner Floyd, the defendant above named, filed his petition for appointment as county dispenser with the said board of control, a copy of which said petition (marked 'Exhibit A') is hereunto annexed as a part and parcel hereof, and to which plaintiffs ask to be allowed to refer as often as they may desire or deem necessary.

"Seventh. That on the said 7th day of June, 1893, the said John Buckner Floyd filed in the office of the clerk of the court for Darlington a paper purporting to be a true copy of his petition to the said county board of control, a copy of which said paper (marked 'Exhibit B') is hereunto annexed as a part and parcel hereof, and to which plaintiffs ask to be allowed to refer as often as they may desire or deem necessary.

"Eighth. That thereafter, to wit, on the 17th day of June, 1893, the said county board of control met at their office in the town of Darlington, and, notwithstanding the protests of the plaintiffs, proceeded to, and then and there did, unlawfully appoint the said John Buckner Floyd dispenser.

"Ninth. Plaintiffs are informed and believe that thereafter, to wit, on the 22d day of June, 1893, the said John Buckner Floyd filed with the said county board of control a paper signed by himself as principal, and T. A. Floyd and Mary J. Libbey as sureties, purporting to be his bond, as required by the said act, a copy whereof is hereunto annexed (marked 'Exhibit C), and to which reference is prayed as often as may be necessary; that the said T. A. Floyd justified on the said bond, but that the said Mary J. Libbey did not justify; that thereupon the said county board of control approved the said bond, and issued to the said John Buckner Floyd such permit to sell intoxicating liquors as is provided for by said act.

"Tenth. Plaintiffs are informed and believe that T. A. Floyd is a married woman, and that the said Mary J. Libbey is irresponsible; and that therefore the said John Buckner Floyd has failed to execute and file such a bond as is required by the provisions of said act.

"Eleventh. Plaintiffs are informed and believe that the following named persons were on the 7th day of June, 1893, and now are, freehold voters of the town of Darlington, whose freehold interest lies within the corporate limits of the town of Darlington, viz. [here follows a list of names]; and that the following named persons, who were on the 7th day of June, 1893, and are now, freehold voters of the town of Darlington, whose freehold interest lies without the corporate limits of the town of Darlington, viz.: 1, G. W. Dargan; 2, R. W. Boyd; 3, N. L. Har-rell; 4, W. L. Galloway; 5, H. E. P. Sanders; 6, W. F. Dargan, —making a total of one hundred and thirty-one freehold voters of the said town of Darlington. That the said W. J. Alexander has recently, and subsequent to the said 7th day of June, 1893, departed this life.

"Twelfth. Plaintiffs are informed and believe that the names of eighty persons are signed to the said petition of the said John Buckner Floyd, as by reference thereto will more fully appear; that seventeen of the persons whose names appear signed to the said petition are not freehold voters of the town of Darlington, viz. Jesse Williams, Adam

[19 S.E. 460]

Bristo, G. H. Hanford, J. D. Gillespie, P. E. Nornient, N. S. Kirby, W. H. Smyrl, W. J. Taylor, E. W. Sutton, W. J. Hai'llee, A. E. Smalls, W. M. B. Sanders, John M. Waddill, B. Block, H. J. La Motte, A. M. Hill, and A. Weston, Jr.; that the names of two persous which appear on said petition, viz. Moses Smalls and William Sumney, were not signed by the said parties, nor did the said Moses Smalls and William Sumney authorize any one, either in writing or by word of mouth, to sign their names to the said petition; that three persons whose names are signed to the said petition, viz....

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20 practice notes
  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor."); McCullough v. Brown , 41 S.C. 220, 247–48, 19 S.E. 458, 472–73 (1894), overruled on other grounds by State ex rel. George , 42 S.C. at 254, 20 S.E. at 233 (holding that if a statute ......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...to furnish the evidence of compliance. The cases of State ex rel. Hoover v. Chester, 39 S. C. 307, 17 S. E. 752, McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L R. A. 410, and State ex rel. George v. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345, were decided during a period of t......
  • State ex rel. Byerley v. State Bd. of Canvassers
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1919
    ...not transfer from the people to the General Assembly all the legislative power inhering in the former. But as said in McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410, only “such legislative power as may be necessary or appropriate to the declared purpose of the people in fr......
  • Ellingham v. Dye, No. 22,064.
    • United States
    • Indiana Supreme Court of Indiana
    • July 5, 1912
    ...transfer from the people to the General Assembly all the legislative power inhering in the former; but, as said in McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410, only “such legislative power as may be necessary or appropriate to the declared purpose of the people in frami......
  • Request a trial to view additional results
20 cases
  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor."); McCullough v. Brown , 41 S.C. 220, 247–48, 19 S.E. 458, 472–73 (1894), overruled on other grounds by State ex rel. George , 42 S.C. at 254, 20 S.E. at 233 (holding that if a statute ......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...to furnish the evidence of compliance. The cases of State ex rel. Hoover v. Chester, 39 S. C. 307, 17 S. E. 752, McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L R. A. 410, and State ex rel. George v. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345, were decided during a period of t......
  • State ex rel. Byerley v. State Bd. of Canvassers
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1919
    ...not transfer from the people to the General Assembly all the legislative power inhering in the former. But as said in McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410, only “such legislative power as may be necessary or appropriate to the declared purpose of the people in fr......
  • Ellingham v. Dye, No. 22,064.
    • United States
    • Indiana Supreme Court of Indiana
    • July 5, 1912
    ...transfer from the people to the General Assembly all the legislative power inhering in the former; but, as said in McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410, only “such legislative power as may be necessary or appropriate to the declared purpose of the people in frami......
  • Request a trial to view additional results

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