Mccullough v. Brown County Bd.
Decision Date | 19 April 1894 |
Parties | 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. |
Court | South Carolina Supreme Court |
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:
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