State Ex Rel. Gib Be S v. Kirkland

• Decision Date: 12 March 1894
• Citation: 19 S.E. 215,41 S.C. 29
• Parties: STATE ex rel. GIB BE S v. KIRKLAND et al., County Board.
• Court: South Carolina Supreme Court

19 S.E. 215

41 S.C. 29

STATE ex rel. GIB BE S

v.KIRKLAND et al., County Board.

Supreme Court of South Carolina.

March 12, 1894.

Intoxicating Liquors — Dispensers—Appointment by County Board op Control — Writ of Prohibition—Whes will Lie.

The writ of prohibition will not lie to restrain a county board of control from receiving or filing the bond of, or granting a permit to, a person appointed by it as dispenser, on account of errors of law or fact committed by it while acting within the jurisdiction conferred on it by Act Dec., 24, 1892, to hear and determine applications for appointment as dispensers.

Appeal from common pleas circuit court of Richland county; Ernest Gary, Judge.

Application by the state of South Carolina, on relation of W. H. Gibbes, for a writ of prohibition to restrain J. M. Kirkland, J. R. Price, and L. B. Folk, the county board of control for Richland county, from receiving or filing the bond of, or issuing a permit to, J. M. Roach as dispenser for the city of Columbia, in such county. From a judgment refusing the writ, relator appeals. Affirmed.

Bachman & Youmans, for appellant.

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

POPE, J. The relator applied to Judge Gary for a writ of prohibition, to be directed to the respondents, as members of the county board of control for Richland county, prohib iting them, and every of them, and all others acting under their authority, from receiving or filing any bond by J. M. Roach as dispenser for the city of Columbia, In said county, and from issuing him any permit authorizing him to keep and sell intoxicating liquors, and that such respondents should utterly desist in every such matter. The grounds recited in the relator's petition, whereby he conveyed his application for said writ, were substantially these: "That the relator Is a freehold voter and taxpayer resident in said city, and presents his petition in behalf of himself and other citizens who are in a similar plight as himself; that the state board of control, composed of the governor of the state, the comptroller general, and attorney general, also of the state, as provided by the act of the general assembly of the said state entitled 'An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein provided, ' approved the 24th day of December, 1892, on a day not stated, in the year 1893. had appointed the respondents as the county board of control for Richland county; and that such respondents had entered upon the discharge of the duties pertaining to their re spective appointments, and of whom J. M. Kirkland is the chairman of said board. Thai by section 8 of said act there may be appoint ed by such county boards of control one dispenser for each county, except that Charleston may have ten, and Richland three, but that n petition for such appointment must be made, to be signed by a majority of the freehold voters of the incorporated city or town where it is desired such dispensers to be appointed, and each person who signs said petition shall sign the same in his own true name and signature, and shall state that, before signing, he has read the petition and understands its contents; and that, before the county board of control shall act upon any petition, there shall have been filed with said board the application of the person seeking the appointment of such dispenser at least ten days before the first meeting of such board to consider such application; and also that a copy of said petition shall be filed with the clerk of the court of common pleas of the county wherein such appointment is desired. That the foregoing petition shall be signed and sworn to by the applicant for appointment as dispenser, and shall state the applicant's name, place of residence, in what business engaged for the two years previous to such application, that he is a citizen of the United States and of this state, that he has never been adjudged guilty of selling intoxicating liquors, and is not a licensed druggist or keeper of an hotel, eating house, saloon, restaurant, or place of public amusement, and is not addicted to the use of intoxicating liquors as a beverage. That section 9 of said act prescribes the formalities to be observed by said applicant for appointment as dispenser, and, when complied with, the said county boardof control may issue to such applicant a permit authorizing him to keep and sell Intoxicating liquors as in said act provided, which permit, when so granted, shall be deemed a trust reposed in the recipient thereof, not as a matter of right, but of confidence. That J. M. Roach, an applicant for the position of county dispenser at the city of Columbia for

Richland county, on the ——day of June,

1893, filed with said county board of control for said county his petition, signed by 190 signers, and this was the only petition filed by the said Roach in support of his application; and the said county board of control had, according to the provisions of said act, no jurisdiction to grant the application of said Roach unless said petition for his appointment had been signed, in accordance with the provisions of said act, by a majority of the freehold voters of the city of Columbia, and unless a copy of said petition had been filed with the clerk of the circuit court for said county, as required by said act. That the petition In question is not signed by a majority of the freehold voters of the said city of Columbia. That the highest number of which 190 is a majority is 379, and the number of the freehold voters of the city of Columbia is far in excess of that number, to wit, more than 500, and, as your relator is informed by the city authorities, is 613. That on the 16th June, 1893, the said county board of control instructed their clerk, John M. Miller, to obtain from the county auditor, L. R. Marshall, as soon as possible, a list of the freehold voters of the city of Columbia, and empowered their chairman to appoint a member of the said board to compare the petition of Roach with the list of freehold voters of the city of Columbia furnished by the said auditor, such appointee to report his action in the premises to the next meeting of said county board of control; and that L. B. Polk was such appointee, who, on the 29th June, 1893, reported to...