The Darlington news. (Darlington, S.C.) 1875-1909, July 13, 1893, Image 1
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