State v. Cain
| Decision Date | 05 October 1907 |
| Citation | 58 S.E. 937,78 S.C. 348 |
| Parties | STATE ex rel. WATTS v. CAIN, Chairman, et al. |
| Court | South Carolina Supreme Court |
Mandamus by the state, on the relation of H. E. Watts, against John J Cain and others, constituting the county dispensary board for Richland county, to enjoin respondents from maintaining an establishment for bottling beer for sale. Dismissed.
Bellinger & Welch, for plaintiff.
Thomas & Thomas, for defendant.
The petitioner applied in the original jurisdiction of this court for a rule requiring respondents to show cause why they should not be perpetually enjoined from bottling beer for sale, and maintaining an establishment for such bottling. The respondents made answer to the rule issued, and also submitted a demurrer to the petition for insufficiency. By an order filed June 14, 1907, this court dismissed the petition and the reasons therefor will now be briefly stated. The answer raised a preliminary question, that the name of the state was used by the petitioner without the consent of the Attorney General or other competent authority, and that the proceeding is by the petitioner in his private capacity for the protection of a private right. In modern practice mandamus is not regarded as a prerogative writ running in the name of the sovereign, but as ordinary process of the court, available to any private citizen, to protect a private right when it is an appropriate remedy. Therefore the use of the name of the state in such cases is a mere form, and may be treated as surplusage. Lord v. Bates, 48 S.C. 103, 26 S.E. 213; Milster v. Spartanburg, 68 S.C. 30, 46 S.E. 539. The petitioner is maintaining a bottling establishment for all malt liquors in the county of Richland, having been licensed to do so under section 36 of the Carey-Cothran dispensary act, upon paying to the county dispensary board of said county the required license fee March 8, 1907. The respondents constitute the county dispensary board for Richland county under said act, and, conceiving they had authority to do so under sections 6 and 12 of said act, are now buying beer in bulk and causing the same to be bottled in a bottling plant which they have established for the purpose, and are retailing the same through the county dispensaries of Richland county, claiming that in this way they can secure better beer at a lower price than if they should buy exclusively from the licensed bottlers, and can prevent a monopoly of the beer business by said licensed bottlers, but that they stand ready to purchase from the licensed bottlers whenever the quality of their beer and the prices quoted are such as to make it to the interest of the public that they should make such purchases.
The main question is whether sections 6 and 12 of the said act authorize respondents to maintain the bottling establishment. Section 6 authorizes the members of the county dispensary board to buy in any market and retail within the state liquors and beverages as provided herein. Section 12 provides: The power to purchase liquors in bulk and to retail liquors through the county dispensaries is undoubtedly given; and we think it also clear that the power to cause the liquors to be put into certain packages and sealed necessarily involves the power to bottle the same through such agencies as they may deem best, and that the establishment of a bottling plant of their own is not beyond the power granted in the act. If the Legislature had intended that the liquors purchased in bulk by the board should be turned over to licensed bottlers to be put...
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