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VOL. XX, NO. 28. DARLINGTON, S. C., THURSDAY, JULY 18, 1893. WHOLE NUMBER 962. uMommiom! JUDGE HUDSON’S DECISION THE DISPENSARY. ON The County Board Acted Illegally for Mr. Floyd did not Have a Majority Petition—His Bond Insufficient. Judge Hudson threw a bomb shell into the dispensary camp last week as the result of the hearing on the temporary in junction against the Darlington dispensary. He declared the I not worth the bond. The dispensary law unconstitutional is, in fact, a straw bond. the petitioner, J. B Floyd, did not secure on his petition a ma jority, and so hold. The Act is very stringent in requiring the majority to sign freely, volun tarily and with a full under standing of the meaning of the petition. The Board, therefore, acted illegally in granting Floyd his permit. His bond is signed by two ladies only—one his mother, a married woman, and the other a widow lady, who did not justify, and cannot. One signature is void, the other ijot sufficient, and the principal bond and therefore made the injunc tion permanent. Nodisnensar can be opened in Darlington ur til further orders from th Court, so we still have a “dry town.” The Judge, however, first decided that the county board of control had acted ille gally in appointing Mr. J. Buck ner Floyd dispenser, as he did not have a majority of the free hold voters on his petition, and that Mr. Floyd’s bond was in sufficient as it was only a straw bond. Messrs Nettles & Nettles represented the freeholders, Messrs Boyd & Brown Mr. Floyd, and Asst. Atty.-Gen. Buchanan and Solicitor Johnson the board. Messrs Nettles & Nettles were sustained in every point. The following is the full text of JUDGE HUDSON’S DECISION. These plaintiff's as taxpayers of the State and freehold voters of the town of Darlington, on behalf of themselves and of a large number of taxpayers of the State and freehold voters of the said town by whose request they are acting, have instituted this action to prevent the estab lishment of a dispensary for the sale of intoxicating liquors in the town of Darlington under the Act of 24th December. 1892. The grounds upon which the in junction is asked are: First. Be cause the petition of John Buck ner Floyd for the office of dis penser is not signed by a major ity of the freehold voters of the town and his bond is invalid. Second, Because the Act of 24th December, .992, insofar as it provides for the establishment of State and county dispensa ries for the sale of intoxicating liquors in this State is unconsti tutional. A rule was served upon the Board of Control and the dis- pe iser, J. B. Floyd, to show cause why the injunction pray ed for should not be granted. The case was heard before me at Chambers at Darlington, Ju ly Oth, upon the moving papers and the answers to the rule. The defendants claim that the injunction should not be grant ed because, First, The com plaint is without equity, inas much as it alleges no special or irreparable injury to the plain tiffs, and, Second, Because the Court is without jurisdiction in this proceeding to try the title of J. B. Floyd to his office, an action in the nature of quo war ranto being the proper proceed ing for that purpose, and the writ of certiorari b ly proceeding to correct any Taking the Act to be consti- utional the facts call for an in- metion. But the serious in- uiry is as to the constitutional ly of the Act. In determining the constitutionality of an Act of the legislature it is necessary to consider the terms of thecon- stitut’on, the powers therein ex pressly granted, those which are necessarily -oi reasonably implied, the general duties and powers of the law-making body as transmitted to us from the usages of England prior to the revolution, and also the common law as derived from the mother country and adopted here and made of force by statute. Ev ery Act of our legislature is pre sumptively constitutional and he who avers to the contrary must show that it violates either some positive mandate or pro hibition of that instrument, or some one of the common law or reserved rights of the people. The people in their social re lations form the State, and Limitations, star page 572. preme Court of the United “We think it a settled princi- States as a lawful exercise of pie,” says Chief Justice Shaw, police power. 1(> Wallace, 9t>. “growing out of the nature of * 3. That Court, upon the same well ordered civil society, that ground, sustained the every holder of property, how- the Legislature of ever absolute and unqualified may be his title, holds it under the implied liability that his use erty, the rights of things and of persons, belong to the people _ P as primordial or inalienable its stead a State saloon rights. To secure and protect the name of Dispensary when the legislature closes a private barroom and opens in under This Illinois pre-1 province of the government. of it may not be injurious to the rights of the community. * * * Rights of property, like all other social and conventional rights, are subject to such rea sonable limitations in their en joyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling pow er vested in them by the consti tution, may think necessary and expedient. * * * The power we allude to is rather the police power; the power vested in the legislature by the consti tution to make, ordain, and es tablish all manner of wholesome arid reasonable laws, statutes and ordinances, either with pen alties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive the existence and source of this power than to mark its bounda ries.” Commonwealth vs Al gers, 7 Cush., 84 cited in Cooley Con. Lim. 573. Speaking of prohibitory liquor laws, Judge Cooley in his work on Constitutional Limitations, Star, pages 583-584, says: “They are looked upon as police Act of, the people in these prt ‘ venting a maximum rate of These rights do not spring from charges for the handling of i government, but the govern- grain in warehouses in that I ment is created by the people to State, and requiring warehouse I protect them in life, liberty, men to procure a license. Munn j property and the pursuit of hap- vs State of Illinois, 4 Otto, 114. piness. The first article of our| These acts of legislation, it is (constitution contains the Dec- generally conceded by states- laration of Rights. The men, jurists and lawyers, have 1 first of these is as follows: pushed the exercise of the police men are born power to the extreme limit and| endowed by th rights is the | is a mere change of manage ment. and is a continuation and aggravation of the evil. It is virtually taking private proper ty for public use, by driving the citizen out of his place of ousi^ ness and erecting a State bar room “at the old stand.” The Act violates the 14th very j amendment to the constitution “All of the United States and sec- free and equal,! tions 1, 22, 23 and 41 of article 1 Creator with of our State constitution, styled regu- , liquors in this State it j in delegated remain This question has long people.” or adopt a government. It is j temperance, pauperism and been settled by the Courts of Neither in express the creation of the people and is crime, and for the abatement of j the States ot the Union, and re when we speak of the State we, lations established by the Legis mean the people. These form lature for the prevention of in- have excited grave apprehen sions in the minds of liberty- loving, patfiotic men. They were held to be constitutional by divided Courts. In the slaughter house cases Justices Field, Bradley and Swayne dis sen ted in strong and vigorous opinions, and in the warehouse cases J ustices Field and Strong dissented. I regret the want of time and space to embody in this judg ment liberal extracts from the opinions of the Judges of this able Court upon the powefs of Legislatures in the exercise of constitutional functions on one hand, and on the other the great dangers to the chaitered, con stitutional and individual rights of freemen should the reason able limit, of their power be transcended. Can the Act of December 24, | 1892, now under consideration, be sustained as coming within the police power of the State? In so far as it prohibits the manufacture and sale of intoxi- catin can. certain individual rights, j the Declaration of Rights. It among which are the righ^i of deprives the people of the right enjoying and defending their to pursue a lawful and lucrative lives and liberties, of acquiring, branch o. trade and transfers to possessing and protecting prop- the State government a monop- erty, and of seeking and attain- oly therein. The manifest par ing their safety and happi-; pose is not to limit, regulate or ness.” suppress the liquor traffic, but These individual rights are to raise for the State govern- further secured to the people of ment revenue from this unpre- the States of the Union by the cedented monopoly, and hence 14th amendment to the oonsti- the Act is void of every element tution of the United States Sec- of legitimate policy It violates of the 4th amendmenf of the con stitution of the United States and section 22, article 1, of the constitution of the State of (tion 23 of our Declaration j Rights is as follows: “Private property shall not be taken or applied for public use of corporations, or for private use. without the consent of the tect the people in their persons, owner or a just compensation houses, papers and effects from being made therefor.” A pro-! unreasonabl viso being added as to right of way. The closing section of the Declaration of Rights is as follows: Section 41. “The enumeration of rights in this constitution A WOMAN'S ADVICE. “Hello, George, have you or dered your summer suit yet ? “Well, don’t delay a minute, but go at once to McCall & Burch's and— “What! That horrid thing ! No, indeed, you shall never wear it. Makes you look like a slouch. Throw it away and get one of McCall & Burch’s, which they are selling at cost for cash. They’re just too lovely. And shall not be construed to impair or deny others retained by the people, and all powers not here with the “That’s a dear. Yes, com© early. “Good-by ” AGreatSuit framed by them for their secur- nuisances. It has also been ity in the enjoyment of life, lib- held competent to declare the erty, the acquisition of property liquor kept for sale a nuisance. cently in the express terms by our Supreme Court. But the vital question is whether it is its condemnation and destruc-, ture to confer upon the Govern- trade, traffic or commerce in and condemn And pursuit of happiness. What and to provide legal process for constitutional for the Legisla then are the powers of our leg islature ? “The unlimited power which the English people concede to their parliament has no place in our institutions. In this country the people are regarded taken to observe those prin- Can that body divert the taxes as the true and only source of ciples of protection which sur- of the people from the legitimate legislative power. This power round the persons and dwellings purposes of government and in is exercised by representatives. terms nor by any implication have the people delegated to this govern ment, either in its legislative, executive or judicial depart ment, the right to engage in tion. and to seize the building occupied as a dram shop on the same ground, and it is only when, in’framing such legislation, fare has not been ment of this State, or any branch thereof, the exclusive right to trade in intoxicating liquors and maintain the same from the treasury of the State? competition with the people, much less to their exclusion. The government cannot become sole proprietor nor copartner in any of the usual known branches of industry, trade or commerce. These are the pursuits and prop erty of the people, which they but they are not at liberty to pass sifeh laws as they please regardless of the constitutional restrictions. With us a written constitution is the supreme law of the land, and neither legisla tures nor Courts have a right to disregard the commands and di rections therein contained. Ev ery Act of the legislature which violates the constitution is en tirely void, and it is the duty of the Courts so to declare, and to refuse to give effect to its pro visions.” See Marbury vs Mad ison, 1 Crunch 177, Wait’s note 10, voi. 1 B. & H.’s Blackstone. “In this country the conslitu tions of the United States and those of the several States have so limited the powers of the leg islature, and have so guarded the rights of the people, that the questions most usually pre sented to the Courts are those relating to the constitutionality of the law rather than to the question how far a Statute may eing the on-j be void by reason of its injus- correct any j tice. And it is a famdiar rule supposed error of judgment of that every statute which vio- the Board of Control in grant- lates either a State constitution ing the permit. I do not take ’ or that of the United States is such a view of this action. invalid and will not be enforced It is brought hy taxpayers by the Courts. and freehold voters, title to office, nor to not to try correct er “The legislative power of the United States is vested in Con- ror of judgment in a judicial gross; while that of the several body, but to prevent the estab-1 States is lodged in the State leg- lishment of a dispensary with-1 islatures. And while the su out a full compliance by the preme power of 1< gislation is to board and applicant for dispen- be exercised by these bodies, ser with the essential prerequi- they do not possess an absolute, sites of the Act; and to prevent unlimited authority. The na the establishment of a dispen sary altogether if the Act be un constitutional. The remedy by injunction is appropriate to this end, and, in fact is the only efficacious reme dy; and taxpayers and freehold voters of the town can invoke the aid of the Court of Equity in such an action without allog- special damage tional and State constitutions are the supreme law of the land, and every legislative Act which violates such constitutions will be held void by the Courts. Where there is no constitution al limitations of power, the au thority of Congress or of the of individuals, securing them vest the money in the trade and have never surrendered to the against unreasonable searches traffic in intoxicating liquors to government. On the ccmtrary, and seizures, and giving them the exclusion of the right of the the very object of creating the aright to trial before condem- people to deal therein? There is government was to protect them nation, that the Courts have no warrant in the Constitution in these individual rights, to South C arolina, framed to pro- always give such perfect t.<W nponlp in their nersons. s o fits. le searches and seiz-1 ures. It violates the 5th amendment to the constitution of the United i States, and sections 11 and 13 of I the Declaration of Rights of the I constitution of South Carolina, j desigr ed to secure every one ac cused of crime the right of trial i by jury, in which he shall not , be compelled to give evidence I against himself. It violates section 8, article 1, of the constitution giving to j Congress the power among oth er things to regulate commerce I with foreign nations, and] among the several States, and( with the Indian tribes. The de-1 cision in the “original package ( cases” was that such packages | of liquor, large or small, trans ported from one State to anoth er, could be sold in an unbroken Kws 'of courBe° thuT'rendered Our entire line of Spring and rprohibrrv ikw of a State Summer Suits must be closed virtually nugatory. This led to out in the next 8ixt ^ da y 8 ’ the Act of Congress of 1890, j We will sell you anything in known as the Wilson bill. Un- this line der this law the common carrier SA-TLE. —AT— wit, life, liberty, property and the pursuit of happiness. The government is the crea tion of the people. It is created by them for the protection of alarm and outrage the people) their rights. So much power as and would not stand the test of is deemed necessary to this end law. T 0 "onfer upon an individ- \ is conferred by them upon the ual or a corporation, under j wholesome rules and regula tions, the exclusive right to sell intoxicating liquors in the State of South Carolina would be un- j constitutional, not because such a grant is prohibited expressly by the Constitution, but be cause it is against the genius land spirit of all free govern ments, and is in violation of the common law rights of the peo pie as handed down to us through the Magna Charter of King John, and which form the felt at liberty to declare that it j for the creation of so gigantic a exceeded the proper province of monopoly inany privateindivid- police regulations. Perhaps ual or association of individuals, there is no instance in which The attempt to erect such a the power of the Legislature to monopoly would very justly make such regulations as may destroy the nature of property, without compensation to the owner, appears in a more strik ing light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the Legislature then steps in, and by an enactment, based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purpose of sale, becomes a criminal of fence; and without any change web and woof and warp of our whatever in his own conduct or fundamental law and individual employment the merchant of rights. Had the Legislature of yesterday becomes the criminal Louisiana conferred upon the of to-day, and the very building | slaughter house corporation of in which he lives and conducts seventeen individuals the ex- the bysiness to which that mer-; elusive right to erect and main- chant was lawful becomes the tain slaughter houses, cattle subject of legal proceedings, if pens, wharves and landings can transport the packages and XT ffinT rOP P I QU deliver the same to the con- /i 1 L/UiJl i UH L/ilOH signee unmolested by 8tate laws, but when received by the con signee the goods are then sub ject to State prohibitory laws. It is an usurpation of power, a perversion of the ends, aims and principles of a republican gov- government, and all other rights j eminent, unconstitutional, and powers are reserved to the people. The legislative branch of this government is restricted by the constitution, which is the fund- j is it justified as an nulli We mean what we All we want is for you to call and see for yourself. and void, except insofar as it: prohibits the sale of intoxica- Another fregh arrival of $1 ting liquors within the State. N e shirts —the Lest in In this prohibitory feature alone Da f u « gt0I1 for the money . exercise or j amental law enacted by our peo- jiolice power; but when it pro-, pie in convention assembled for ceeds to transfer the traffic from the conduct of all departments the citizen to the State exclu-i of the government. What rights | si vely, it is divested of every they have not therein surren dered they have reserved to themselves, and of these reserv ed fights the legislature cannot deprive them. The general po lice power exercised by the leg islature'must be restricted with in constitutional limits. Be- Something new in Windsor Scarfs at 50c, the very thing to wear with negligee shirls. the statute shall so declare, and liable to be proceeded against for a forfeiture. A statute which can do this must be justi fied upon the highest reasons of public benefit; but whether satisfactory or not they address themselves exclusively to the legislative wisdom.” The dangerous extremity to which the police power may be exercised is illustrated in three noted instances: 1 In 1878 it was held by the Court of Appeals of New York, in throughout the entire State, in stead of the parishes of Orleans, Jefferson and St. Bernard, the Act could not have been sus tained by the Courts under the police power of the State. Such a monopoly would have been inimical to the rights and liber ties of the people, unconstitu tional, null and void. Such has been the law of England since the argument of the celebrated case of monopolies, in the reign of Queen Elizabeth, reported in | pretence of the State Coke 11, page 84, and which the case of, lead to the statute of 21st James feature of the police power, | and gives to the traffic in j intoxicating liquors a sane-1 tion, a dignity and magni-j tude it never before pos- j sessed. It is more. It is a Tro jan horse brought into the State under disguise of pretended yond this they cannot go: and (good, but pregnant with ele- this constitutional limit has) ments, doctrines and principles been transgressed in the Act we | dangerous to the liberties of the are considering. [ people, and which logically pur- If the legislature can confer j sued in the same direction will upon the government of South I lead to the overthrow of liberty. Carolina the exclusive right Because should this mammoth to sell intoxicating liquors monopoly be upheld by t h e throughout the State under the Courts and the revenue derived ^ n j ce jj ne 0 f extra light- implied grant of the police pow- therefrom should not be satis- we jght coats and vests; also ex- er, then certainly it can confer ( factory, what is to prevent the tra p an ^ 8 like monopoly in the sale of | Legislature from next seizing drugs, tobacco, commercial fer-1 upon the trade in drugs and iilizers, powder ami explosives, medicines, and then gradually take away from the people their! We are still making aspecial- I ty of Shoes. We have about 35 pairs in sizes ranging from No. 5 to No. 7, which we are selling out re gardless of cost. These shoes are regular $5 and $0 goods, but owing to the unpopular sizes we will close them out at $1.50 per pair. led” Note U5, star page 174. What is the police power of mg or proving . „ It is the right of the taxpayer I the State ? to avert the misappropriation of “The police of a State, in a the taxes of the people by an il- (comprehensive sense, embraces legal diversion or investment of its system of internal regula- the same, and for this purpose tion, by which it is sought not the doors of the Courts are al-1 only to preserve the police order ways open to him. an d to prevent offences against In addition to the foregoing the State, but also to establish technical objections, the defend-1 for the intercourse of citizen ants denied the allegations of the complaint. Many conflict ing affidavits were submitted touching the number of free hold voters in the town of Dar lington, and in touching the fact of signature to the petition and the manner thereof. J. am convinced, however, that legislatures is nearly unlimit- j Bertbolf vs O’Reilly, that a I, prohibiting monopolies, and 1 statute of 1873 enacting that the | forming now a part of the corn- lessor of premises, with the j rnon law of this State, knowledge that they are to be j Now can the Legislature of used for the sale of intoxicating j South Carolina confer upon the liquors, is liable for damage j Executive department ot the caused by the Act of oneintoxi- state government the exclusive cated uy liquor sold therein is right to buy and sell liquors in constitutional. A m Reports, the State ? Can it engraft upon vol 30, p 334. j that or any other branch of the 3. The Act of the Legislature government the character of a w.v, v,, „^,of Louisiana, 1869, granted to a trading establishment or m©i with citizen those rules of good corporation created by the Act cantile house and confer upon manners and good neighborhood the exclusive right for twenty- it the monopoly of the liquor which are calculated to prevent five years to have and maintain traffic or any other branch of a conflict of rights, and to in- slaughter houses, landings for commerce ? sure to each the uninterrupted | catt’e, and yards for inclosing enjoyment of his own, as far as | cattle intended for slaughter is reasonably consistent with a within the parishes of Orleans, like enjoyment of rights by oth-1 Jefferson and St. Bernard. This' ers.” Cooley’s Constitutional i Act was sustained by the Su- The constitution does not give meats, vegetables, mineral wa tere, provisions, milk, butter and an indefinite number of ar ticles of lawful trade and com merce, all under the plea and of exercising police power over the people. Laws now exist for regulating all or nearly all these articles, and the right to monopolize the sale of one implies the right to monop olize the sale of each and all. This has never been done by any constitutional government in ancient or modern days so far as I kitbw, and not even by despots. If the government, under any plea or pretence, can embark in trade and commerce in competi tion with o to the exclusion of the people, all liberty and pros perity are gone. It is lawful to regulate or to even prohibit the manufacture and sale of intoxi the power, but by necessary im-1 eating liquors with a view to plication denies it. Traffic, commerce, industrial pursuits, the acquisition of prop- • check and suppress an This is police, lawfully cised. But it is far evil, exer- different most lucrative branches of trade and commerce? The inalienable and fundamental rights of the people referred to above con tribute the roots, the fibre and the body of the great tree of Liberty, which, watered by the blood of our ancestors for gener ations and centuries, has grown to proportions stately, symmet rical and beautiful, upon which our Constitution has been en grafted, and has unfolded its __ _ stalk. Our peojile cannot afford IN OTTR HATS, to girdle and destroy this tree of liberty for the sake of a re- In our Hat stock we have a venue from a monopoly by the f ew more gt raw H a t 8 left which State of the traffic in intoxicat- j ing liquors. j These are my reasons for | not at granting an injunction. Let this and all the papers be filed I with the order. J. H. Hudson, Judge 4th Circuit. July 8, 1993 (Other bocals on 2nd Page. we are selling at reduced prices; cost. IM & Bird v