State v. McMaster

• Decision Date: 07 January 1892
• Citation: 14 S.E. 290,35 S.C. 1
• Parties: STATE ex rel. COLUMBIA CLUB v. MCMASTER, Mayor.
• Court: South Carolina Supreme Court

14 S.E. 290

35 S.C. 1

STATE ex rel. COLUMBIA CLUB v. MCMASTER, Mayor.

Supreme Court of South Carolina

January 7, 1892

Appeal from common pleas circuit court of Richland county; HUDSON Judge.

Prohibition by the state of South Carolina ex rel. the Columbia Club against F. W. McMaster, mayor of the city of Columbia. From a judgment of dismissal relator appeals. Reversed.

Allen J. Green, for appellant.

John G Rhelt, for respondent.

MCGOWAN J.

The Columbia Club, relator, is a duly-incorporated organization for social and literary purposes, with power to make such rules and regulations as it shall deem proper. The club-rooms are situated in the city of Columbia, used exclusively by the members, and are intended to provide for them a place where they, at small cost, can have and enjoy the privacy and privileges of a well-conducted home, together with such intercourse and amusement as are consistent with the rules and objects; and to this end they established the following rules and regulations: A small library is provided, and furnished with the periodicals and literature of the day. The club is governed by a president, a vice-president, and a managing committee, who are elected by the club. Among the duties of the managing committee is to provide the necessary accommodations, servants, etc., for the members, and to have a general supervision of the affairs of the club. Before any person can become a member of the club he is required to be recommended by at least three active members, his name passed upon by the managing committee, and submitted to the club for election. All members (except honorary, limited to seven in number, and to which only distinguished citizens of the state or of the United States are eligible) are required to pay an initiation fee and monthly or annual dues, from which sources the club is maintained; that is to say, each resident member pays an initiation fee of $50, and a monthly assessment of $2; each non-resident, a fee upon initiation of $20 and annual dues of $10; a temporary member, a fee of $10 for three months. The membership now and at all times hereafter not to exceed 104 members of all classes. It seems that among the refreshments purchased and kept on hand with the funds of the members, obtained as aforesaid, the managing committee from time to time, provides a small quantity of liquors and cigars, which are in the keeping of said committee, and are distributed to the members as they require the same by the servants of the club, the members placing an amount of money equivalent to the cost price of the article or proportion thereof so furnished, which amount is fixed by the managing committee, and is not intended for profit, but solely to cover the cost thereof, and is expended to replace the articles so consumed; but, as matter of fact, the same does not cover the cost, but it is necessary, to maintain the articles aforesaid, to use a portion of the annual dues and assessments for this purpose, etc. On February 14, 1891, the club, by its officers, was summoned to appear before the Honorable F. W. McMaster, mayor of the city of Columbia, to answer to the charge of "doing business without a license," in violation of an ordinance of the city. The officers of the club appeared, and denied the charge, and the jurisdiction of the court in the premises. The city council however, pronounced judgment against the club, and sentenced it to pay a fine of $20, and, unless the same, together with an alleged license fee of $200, was paid by February 27th then instant, ordered the chief of police to close the rooms of the club. Thereupon the relator club petitioned the court of common pleas for a writ of prohibition to restrain the mayor and all officers acting under him from proceeding further in the premises, upon the grounds that said action of the municipal court was without jurisdiction; that the city had not imposed any license fee or tax upon the club, and in fact has no rightful authority to do so; and that the sentence of the court was wholly without authority of law. The mayor was ordered to show cause why the writ should not be granted. The application was heard by his honor Judge HUDSON, who, among other things, found as follows, viz.: "The object of the club was not to make profit out of the liquors, but merely to cover the cost price, and thus to replenish the stock; nor was the purpose to evade the laws, either of the city or state, but the association is bona fide and governed by rules and regulations as judicious and stringent as those of similar clubs in the cities of other states. So far as the aims, objects, purposes, rules, and regulations of the club are concerned, there is no dispute. Nothing is alleged, not was anything attempted to be proved, derogatory to the membership or conduct of the club, but all was conceded that would allow to it a constitution and standing as free from condemnation as any similar society in any city of the land," etc. His honor, however, held that the admitted facts "constitute a sale of liquors by the club," and it was liable to pay a license fee of $200 to the city of Columbia, and therefore dismissed the petition. The club appeals to this court, alleging error on the part of the circuit judge upon the following, among other, grounds: (1) Because the city has no power to impose a license fee or tax upon social organizations, such as the relator; (2) because the city has not imposed a license fee or tax upon said organization; (3) because the sentence of the municipal court is without jurisdiction and void, in that it is not authorized by any ordinance of the city, and imposes a greater punishment than its charter allows.

The question whether social clubs, which raise the means by contribution, and then distribute refreshments among their own members, are liable to a license tax for retailing spiritous liquors, has been considered by many of the courts of the country, both in England and America. The cases seem not to be in accord. We have examined many of them in the hope of being able to reconcile them, but have found it impossible to do so. We think, however, that much of the seeming conflict arises from two causes: First where...