State Ex Rel. George v. City Council Of Aiken

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGARY
Citation42 S. C. 222,20 S.E. 221
PartiesSTATE ex rel. GEORGE et al. v. CITY COUNCIL OF AIKEN.
Decision Date08 October 1894

20 S.E. 221
42 S. C. 222

STATE ex rel. GEORGE et al.
v.
CITY COUNCIL OF AIKEN.

Supreme Court of South Carolina.

Oct. 8, 1894.


Intoxicating Liquors—"Dispensary Act"—Constitutionality—Legislative Powers.

1. The supreme court, in determining the constitutionality of the dispensary act, regulating the sale of spirituous liquors, should not follow a prior decision if erroneous. McIver, C. J., dissenting.

2. The "Dispensary Act" of 1893, forbidding the sale of liquors by private individuals, and providing for its sale by the state, is a valid police regulation. Mclver, C. J., dissenting. McCullough v. Brown (S. C.) 19 S. E. 458, overruled.

3. The dispensary act does not violate Const, art. 1, § 14, which provides that no person shall be despoiled of his property or privileges but by judgment of his peers and laws of the land. Mclver, C. J., dissenting. McCullough v. Brown (S. C.) 19 S. E. 458, overruled.

4. Nor does the act violate Const, art. 1, § 1, which provides that all persons are endowed with the inalienable rights of "acquiring, possessing and protecting property and of protecting their safety and happiness." Mclver, C. J., dissenting. McCullough v. Brown (S. C.) 19 S. E. 458, overruled.

5. Nor is the act in violation of Const. U. S. Amend. 14, forbidding the state to pass any law abrogating the privileges of citizens of the United States, or to deprive any person of life, liberty, or property without due process of law.

6. Const, art. 1, § 41, which provides that "the enumeration of rights in this constitution shall not be construed to impair or deny others retained by the people and all powers not herein granted remain in the people, " does not deprive the legislature of power to pass an act depriving individuals of the right to engage in liquor traffic, though such right is not expressly granted by the constitution.

7. Nor is the act unconstitutional because it empowers the state to engage in traffic in liquors, as such traffic by the state is a mere incident of the regulation of the sale, and not the object of it. Mclver, C. J., dissenting. McCullough v. Brown (S. C.) 19 S. E. 458, overruled.

8. The fact that the sale of liquors could be as readily regulated by allowing individuals to engage in its traffic under proper regulations is immaterial.

9. 20 Stat. 313, which provides that all intoxicating liquors imported into any state for use, sale, consumption, or storage therein shall be subject to the operation of the laws of such state, renders such liquors, though imported for a citizen's "own use, " subject to the laws of the state.

10. There is no inherent right in the people to engage in the traffic of intoxicating liquors.

Appeal from common pleas circuit court of Aiken county; James Aldrich, Judge.

Petition by the state on the relation of J. V. George and another against the city council of the city of Aiken for a writ of prohibition. Prom the judgment both relators and respondent appeal. Affirmed.

O. W. Buchanan, Atty. Gen., for plaintiffs.

G. W. Croff and M. B. Woodward, for defendant.

GARY, J. The issues involved in this case are far-reaching in their consequences, and of gravest moment. An act of the legislature which has for its object the solution of the vexed question of the liquor traffic is

[20 S.E. 222]

before this court for review, and its constitutionality is contested. The scheme of the act is novel in its features, and the court is not able to get much light from adjudications bearing directly thereon. We are therefore compelled from necessity to reach our conclusions upon a consideration of the general principles of law on which it is founded. We trust that we enter upon the consideration of the principles involved in this case with a proper sense of the responsibility which rests upon us. The conclusions at which we have arrived were reached after mature deliberation, and careful consideration.

The issues involved herein will be seen more clearly by a short statement of facts out of which the case arose. The relators, who were operating a dispensary by state appointment and authority, under the act of the general assembly approved December 23, 1803, and known as the "Dispensary Act, " having been summoned to answer before the town council of Aiken for violation of an ordinance prohibiting the sale of vinous or malt liquors without a license, applied before his honor, Judge Aldrich, for a writ of prohibition restraining the town council from interfering with them upon said charge, on the ground that the ordinance was a nullity, and the council, in seeking to enforce it, was attempting to exercise a power with which it was not vested. The town council, in answer to a rule to show cause, justified its proposed action by an assertion of the validity of the ordinance in question, and by the claim that the dispensary act of 1893 was null and void, as violative of sections 1, 2, and 41 of article 1 of the constitution of the state, of section 8, art. 1, of the constitution of the United States, of amendments 4, 5, and 14 to that constitution, and of the national laws regulating interstate commerce. It is also urged that the relators had ample remedy at law for the correction of their alleged grievance, and that the writ, on that ground, should not issue. Judge Aldrich held, under the authority of McCullough v. Brown (S. C.) 19 S. E. 458, that the act of 1893 was violative of the state constitution, null and void; that the act is not in violation of the constitution of the United States, the amendments thereto, or of the Interstate commerce laws of the United States; but that the charter of the city of Aiken does not sustain the ordinance, and that the same was illegal and void. He further overruled the objection that the relators had ample remedy at law, and ordered the writ of prohibition to issue. Both relators and respondents appealed, —the first on the ground that the judge erred in holding the act of 1893 null and void, as violative of the state constitution, and in permitting respondents to question the constitutionality of the act; and the respondents on the grounds that the judge erred in not holding the dispensary act null and void as violative of the consti tution of the United States and of the national interstate commerce laws, in not holding the relators had ample remedy at law, and so are not entitled to the writ, and in holding the ordinance in question to be without support of law, null and void.

We are met at the threshold with the objection that the principles involved in this case have been adjudicated by this court in the case of McCullough v. Brown, 19 S. E. 458, followed by the cases of Barringer v. City Council, and Ex parte Brunson, Id. 745, and State v. O'Donnell, Id. 748, and that the doctrine of stare decisis should prevail. The act of 1892, known as the "Dispensary Act, " had been construed by the court before the case of McCullough v. Brown was decided. It received its first judicial construction by his honor, Judge Simonton, in the case of Cantini v. Tillman, in the circuit court of the United States for the district of South Carolina. 54 Fed. 969. In an able and clear-cut opinion his honor, Judge Simonton, sustained the constitutionality of the act generally, but reserved his opinion as to other provisions of the act in these words: "There are other and much more grave questions in this case, affecting the jurisdiction of this court The conclusions reached render the discussion of them at this time unnecessary." In that case his honor, Judge Simonton, says: "This is a proceeding to test the constitutionality of an act of the general assembly of South Carolina, commonly known as the 'Dispensary Act.' The purpose of the act, as expressed in its title, is to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein provided. * * * We have seen that the right to sell intoxicating liquors is not a right inherent In the citizen, and is not one of the privileges of citizenship; that it is not within the protection of the fourteenth amendment; that it is within the police power. The police power is a right reserved by the states, and has not been delegated to the general government." The act of 1892 was next brought in review before the supreme court of this state in the case of State ex rel. Hoover v. Town Council of Chester, and State ex rel. Groeschel v. Same, 39 S. C. 307, 17 S. E. 752. In these cases (which were heard together) Mr. Justice Pope, in delivering the unanimous opinion of the court, says: "As to these several points embodied in these four objections wherein it is claimed that the act we are now considering is in violation of certain provisions of our constitution as well as that of the United States, we do not see how such questions can arise In this case. The only question involved here is whether said act violates the constitution in forbidding the granting of licenses to retail spirituous liquors beyond the 30th day of June, 1893, and to that question we have confined our attention, and, having reached the conclusion that the said act being in effect an act to regulate the sale

[20 S.E. 223]

of spirituous liquors, the power to do which Is universally recognized, it is quite clear that there is nothing unconstitutional in forbidding the granting of licenses to sell liquors except in the manner prescribed by the act. But whether the act contains other features not affecting the right of relators to the licenses claimed by them, is a question that cannot properly arise in these cases, and cannot, therefore, be considered, for, as we have said above, it would be extrajudicial to do so." It will be observed that in those cases Mr. Justice Pope spoke for the court, when he said: "Having reached the conclusion that the said act being in effect an act to regulate the sale of spirituous liquors, the power to do which is universally recognized, It is quite clear that there is nothing unconstitutional in...

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57 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
    ...this ability to regulate is not as far-reaching as Respondents maintain. See 799 S.E.2d 667State ex rel. George v. City Council of Aiken , 42 S.C. 222, 20 S.E. 221, 230 (1894) ("[I]f the 419 S.C. 473act is not a police measure, it is unconstitutional."). We find that sections 61-6-140 and -......
  • Mumpower v. Hous. Auth.
    • United States
    • Virginia Supreme Court of Virginia
    • November 28, 1940
    ...and that the power not only to regulate but entirely prohibit the traffic has been generally accorded. See State ex rel. George v. Aiken [42 S.C. 222], 20 S. E. 221, 26 L.R.A. 345, and cases cited, including quotation at page 352, (L.R.A. report) from Crowley v. Christensen, 137 U.S. [86], ......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...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 the most intense political excitement, involving the establishment of the sta......
  • Mumpower v. Housing Authority, Record No. 2345.
    • United States
    • Virginia Supreme Court of Virginia
    • November 26, 1940
    ...and that the power not only to regulate but entirely prohibit the traffic has been generally accorded. See State ex rel. George Aiken 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345, and cases cited, including quotation at page 352 (L.R.A. report), from Crowley Christensen, 137 U.S. 86, 90 11 S.Ct.......
  • Request a trial to view additional results
57 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
    ...this ability to regulate is not as far-reaching as Respondents maintain. See 799 S.E.2d 667State ex rel. George v. City Council of Aiken , 42 S.C. 222, 20 S.E. 221, 230 (1894) ("[I]f the 419 S.C. 473act is not a police measure, it is unconstitutional."). We find that sections 61-6-140 and -......
  • Mumpower v. Hous. Auth.
    • United States
    • Virginia Supreme Court of Virginia
    • November 28, 1940
    ...and that the power not only to regulate but entirely prohibit the traffic has been generally accorded. See State ex rel. George v. Aiken [42 S.C. 222], 20 S. E. 221, 26 L.R.A. 345, and cases cited, including quotation at page 352, (L.R.A. report) from Crowley v. Christensen, 137 U.S. [86], ......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...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 the most intense political excitement, involving the establishment of the sta......
  • Mumpower v. Housing Authority, Record No. 2345.
    • United States
    • Virginia Supreme Court of Virginia
    • November 26, 1940
    ...and that the power not only to regulate but entirely prohibit the traffic has been generally accorded. See State ex rel. George Aiken 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345, and cases cited, including quotation at page 352 (L.R.A. report), from Crowley Christensen, 137 U.S. 86, 90 11 S.Ct.......
  • Request a trial to view additional results

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