State ex rel. George v. City Council of Aiken

• Decision Date: 08 October 1894
• Citation: 20 S.E. 221,42 S.C. 222
• Parties: STATE ex rel. GEORGE et al. v. CITY COUNCIL OF AIKEN.
• Court: South Carolina Supreme Court

20 S.E. 221

42 S.C. 222

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

Supreme Court of South Carolina

October 8, 1894

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. From 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 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, 1893, 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 of article 1 of the 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 constitution 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 F. 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 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 extra judicial 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 forbidding the granting of licenses to sell liquors, except in the manner prescribed by the act." It will also be seen by an examination of those cases that the doctrine of stare decisis did not prevail when the cases of State v. Platt, 2 S. C. 150, and State v. Hagood, 13 S.C. 46, were brought in review before the court. Mr. Justice Pope, speaking for the court, says: "There have been two decisions by this court, and both most unsatisfactory, there having been a strong dissenting opinion in each,--Chief Justice Moses in the case of State v. Platt, 2 S. C. 150, and the present chief justice in the case of State v. Hagood, 13 S.C. 46." After citing authorities to show that the principles announced in them were erroneous, he thus proceeds: "Therefore, however unpleasant it may be to reverse previous decisions to this court, still, after full and mature consideration, we feel it to be a duty we owe the state that the case of State v. Platt, supra, should be, and is hereby, overruled; and as the case of State v. Hagood, supra, was really decided upon the authority of Platt's Case, it follows necessarily that the Case of Hagood must fall when the foundation upon which it rests is taken away." Chief Justice Simpson, delivering the opinion of the court in Suber v. Chandler, 18 S.C. 526, overruling McGowan v. Hitt, 16 S.C. 602, uses this language: "The judgment which we propose to announce is directly in conflict with McGowan v. Hitt, 16 S.C. 602. That case was decided by a divided court, Mr. Justice McIver having dissented. It is a very recent decision. Judge Pressley, delivering the opinion of the majority, stated that in several of the states cases were found holding that the statute was suspended in cases like that. *** Under these circumstances, and upon examination finding that it has no sufficient support, either in principle or authority, in our opinion it should be overruled, and it is so ordered." In Piester v. Piester, 22 S.C. 145, Mr. Justice McGowan, in overruling Edwards v. Sanders, 6 Rich. (N. S.) 316, said: "This is the case upon which the circuit judge rested his decree; but with all due respect, and an anxious desire to maintain consistency in the adjudications of this court, we are constrained to say that in our judgment the case of Edwards v. Sanders is not only unsustained by proper rules of construction, but is in direct opposition...