State v. Town Council of Chester
| Decision Date | 16 May 1893 |
| Citation | 17 S.E. 752,39 S.C. 307 |
| Parties | STATE ex rel. HOOVER v. TOWN COUNCIL OF CHESTER. STATE ex rel. GROESCHEL et al. v. SAME. |
| Court | South Carolina Supreme Court |
Petitions by the state at the relation of W. H. Hoover and by the state at the relation of Groeschel & Co. for writs of mandate to the town council of Chester. Denied.
S. P Hamilton, for petitioners.
D. A Townsend, Atty. Gen., and Paul Hemphill, for respondent.
The relator, by petition, in each of the above-entitled proceedings, asks that this court will issue a mandamus to the respondent, requiring that a license shall be granted to the petitioners, respectively, as liquor dealers in the town of Chester, in this state, from the 2d day of January, 1893 up to and inclusive of the 31st day of December, 1893. Both petitions, being based upon facts identical in character have been heard together. The respondent denies the right of each petitioner, and traverses some of the allegations of fact. Under such circumstances, by an agreement of counsel for relators and respondent, it was referred to Thomas S. Moorman, Esq., to take the testimony as to the facts in dispute. The report of such testimony was made to this court. At the hearing before us the following facts were disclosed: In 1888 (20 St. 140) the town council of Chester were authorized by the general assembly of this state to grant licenses to sell spirituous and intoxicating liquors under certain restrictions and modifications. Under the general laws of this state pertaining to such matters, no license could be given for a longer period than one year, and not extending beyond the 31st day of December of any year. On the 2d day of January, 1893, the relators, after a strict compliance with all the requirements of the statutes of this state, as well as with all the ordinances and regulations of the town of Chester, applied for a license as retail liquor dealers to begin on the 2d January, 1893, and ending on the 31st day of December, 1893. The respondent, however, refused to grant a license beyond the 30th day of June, 1893, alleging, as the basis for such action on their part, that the state had passed an act approved on the 24th day of December, 1892, whereby all licenses to be granted by any towns or cities in this state should cease and determine on the 30th day of June, 1893, and providing pains and penalties upon all persons who should disregard such legislation; and this refusal of the town of Chester, with the above ground therefor, was put upon the minutes of such town council. The relators under protest at every step, paid for and took out licenses until 30th June, 1893, but, conceiving they were entitled to licenses up to 31st December, 1893, they have applied to this court in its original jurisdiction for the writ of mandamus to force such license from the respondent, and allege that the act of 24th December, 1892, was unconstitutional on the following grounds: (1) Because, if said town council (of Chester) had any discretionary power to grant or refuse licenses to sell spirituous or intoxicating liquors under the act of 1888, the said town council of Chester never exercised their discretion. (2) Because the act of 1888, and chapter 55 of the General Statutes, were not repealed by "An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein permitted," the said last-named act being approved December 24, 1892; the said last-named act being void. (3) That said act never acquired the force of law in this state, because the original bill which was sent from the senate to the house was altered and changed by Ira B. Jones, speaker of the house of representatives, at the time or after it passed the house, and amended as he saw fit, when it appears in the journal of the house, of date of 23d December, 1892, that no such changes, alterations, or amendments were ever sanctioned or ordered by the house of representatives. (4) That the original bill substituted for the Roper bill was a bill pure and simple to raise a revenue for the state of South Carolina, and originated in the senate, contrary to the constitution of this state. (5) Because the original bill was one whose object was to raise a revenue for the state, and such object was not expressed in its title. (6) Because said bill, not being an amendment to the Roper bill, never received three readings in the house, never became an act and is void. (7) Because no power was ever given to the legislature by the people of South Carolina to create for the state a monopoly in a lawful mercantile business to the exclusion of her own citizens. (8) Because the act which was enrolled and ratified by the two houses of the general assembly, and approved by the governor, was not the bill passed by the two houses. (9) Because section 3 of said act violates section 3 of article 3 of the constitution, wherein it clothes the governor of the state, as chairman of the board of control, with power prohibited by said section. (10) Because it was never delegated by the people of South Carolina, in the constitution of 1868, to the state of South Carolina, to enter into a mercantile business to sell spirituous liquors, and to carry on such business to the exclusion of her own citizens. (11) That no power was ever delegated to appropriate $50,000 to carry on such business by the state, as given in section 18 of said act. (12) That sections 23 and 25 of said act violate the constitution of the United States.
The attorney general of this state interposed before the hearing, denying the right of petitioners to use the name of the state when no consent had been given to them therefor. We remark that the point raised by the attorney general is one of serious consequences to the relators, for, if it should be determined that only those are entitled to the use of the state's name who have the consent of the attorney general for such purpose, our duty might terminate at an early stage; but, under the peculiar circumstances of these petitions, we have determined to waive the consideration of this objection, neither affirming nor denying the proposition of the attorney general. Nor will we undertake to canvass the question suggested by the respondent as to the exercise of a discretion by the town council of Chester under the law to refuse the application of petitioners for a license. Indeed, we feel that the town council, having elected to place their refusal to grant a license to the petitioners upon the ground that the act of the general assembly of December 24, 1892, forbade any other license than that granted by them, (which ground they placed upon the minutes of the said town council,) they are estopped from raising this additional ground of refusal. We prefer to pass directly and squarely upon such questions only as relate to the claims set up by the relators to have licenses issued to them, without undertaking to consider or decide whether the act of December 24, 1892, commonly known as the "Dispensary Act," contains other features not applicable to these cases, in conflict with the constitution of this state; and, before proceeding to the consideration of these questions, we desire to say that our judgment must be considered as to those issues, and none others. A different course on our part would be extra judicial.
The relators assail the constitutionality of the act in question substantially on these grounds: (a) That it is an act to raise revenue for the state, and hence should have originated in the house of representatives, whereas, on the contrary, the relators allege it was first considered in the senate; (b) that every act should relate to but one subject, and that subject must appear in the title thereof; (c) that the constitution requires that a bill, before it becomes an act, must be read three times on three several days in each house, whereas it is alleged that this act did not receive three readings on three several days in the house of representatives; (d) that the constitution requires that a bill which has passed each house shall be enrolled and ratified, whereas it is alleged that such bill was not so enrolled and ratified. Second. That the act is fatally defective (e) because the governor of the state is made one of the board of control, as provided for in this act, in violation of the constitution of the state; (f) because the act creates a monopoly in the state in the sale of intoxicating liquors, thus violating the constitution of the state; (g) because the act, in its provisions, exceeds the legislative power confided by the state constitution to the general assembly; (h) because no power is vested in the general assembly by the constitution to appropriate $50,000 to purchase liquors to be sold by agents of the state. Third. That this act, in sections 23 and 25, violates the constitution of the United States.
The objections indicated as (a,) (c,) and (d) will be considered together. The original bill which has been enrolled and ratified in the senate house, as is evidenced by the signatures of the president of the senate and the speaker of the house of representatives, and also approved by the governor of the state, and duly deposited thereafter in the office of the secretary of the state, shows on its face that it originated in the house of representatives, received three readings in each house, and was thereafter duly enrolled and ratified. But it is contended by the relators that notwithstanding this...
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