Historical Newspapers of South Carolina

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UNCONSTITUTIONAL f -____-________ The Dispensary Law So Con strued by the Supreme Court. On last Thursday, the long looked-for decision of the State Supreme Court io the Dispensary case, was filed. The opinion, delivered by Chief Justice Mciver, and concurred in by Justice McGowan, completely upsets the whole Dispensary business, and as a result all the dispensaries have been closed and the employees in Columbia discharged. Justice Pope filed a dissenting opinion. Space prevents the pnblication of both, but we give the decision of the Court : TUE DECISION. The State of South Carolina-In the Supreme Court, November, term, 1893-Charies S. McCullough and others, plaintiffs, respondents, vs. George Jost Brown and others, de? fendants, appellants; the State, appellant, vs. Hentz Jacobs, defen? dant, respondent ; the State, appel? lant, vs. J. C. H. Troeger, defend? ant, respondent ; the State appellant, vs. Thomas Fagan and others, defendants, respondents; the State, appellant, vs. Benjamin David, de? fendant, respondent. OPINION-MCIVER, C. J. These oases all arise under an Act entitled "An Act to prohibit the manu? facture and sale of intoxicating liquors as a beverage within this State, except as herein provided.7' approved 24th of December, 1892,21 Statutes, 62, and were, therefore, beard and will be con? sidered together, for, while there are certain subordinate questions presented io some of the cases which do not arise in others, yet they all present the ques? tion of the constitutionality of the Act. To that question as one of over-shadow? ing importance, we propose first to di? rect our attention. Before doing so, however, it may be proper to state that jost before the commencement of the argument the Attorney General, deem? ing it due to the Court so to do, presented a suggestion in writing call? ing the attention of the Court to the fact that at the recent session of the General Assembly (1893) another Act OD the same substance had been passed which might possibly be regarded as repealing or superseding the Act of 1892, nader which these cases arise, and if so might deprive the questions pre? sented in these cases of any practical character, leaving them only as specula? tive questions which the Court might be willing tb hear. Bat as no motion to dismiss the appeals was made and no application OD the part of the counsel for the State to abandon the appeals upon any such grounds was presented, this Goort will not, of its own motion, declina to bear the cases, but on the contrary will assume, for the parp?se of this discussion, that these cases are not in any way affected by the passage of the Act of 1893, but do present practical questions, which this Court is bound to decide. Recurring, then, to the question of the constitutionality of the Act, it may be as well to say io the outset that we freely concede that the presumption is always in favor of the constitutionality of ao Act of the Legislature ; and bence, as is said by Shaw, Chief Jus? tice, in Willington, petitioner, 16 Pick, 95, referred to with approval by Judge Cooley io bb great work on Constitu? tional Limitations at page 182 of the second edition (which it may bc well to say here is the edition referred to tbroogboot this opinion:) "When Courts are called opon to pronounce the invalidity of aa Act of Legislature, passed with all the forms aod cere? monies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient atten- j tion can throw any new light on the j subject, and never declare a statute ; void unless the nullity and invalidity of the Act are placed, in their judgment, j beyond reasonable doubt.'' A reason abie doubt most be solved in favor of the Legislative action and the Act be j sustained. Or as was said by Mar- j shall, C. J., in Fletcher vs. Pack, 6 j Crauch, 128, likewise quoted with approval by Judge Cooley in the same connection : "The question whether a law be void for its repugnacy to the j Constitution is at all times a question of mach delicacy, which ought seldom, I if ever, to be decided in the affirma- ' tive in a doubtful case. The Court ! when impelled by duty to render such ! a judgment would be unworthy of its station could it be unmindful of the j solemn obligation which that station imposes, bot it is not on slight implica- j tions sud vague conjecture that the Legislature is to be pronounced to have ? transcended its powers and its Acts to j be considered as void. The opposition i between the Constitution and the law should be such that the judge feels a j clear and strong conviction of their incompatibility with each other." These views .have been fully recognized in this State, as is most fully, clearly and forcibly set forth by Mr. Justice McGowan in ex parte Lynch 16 S. C., 52, and have been approved in many other cases. We also freely concede that in con? sidering the question whether an Act of the General Assembly of this State is in conflict with the Constitution, either State or Federal, the inquiry is whether there is anything in either of those instruments forbidding the passage of such an Act, either in express terms or by necessary implications, whereas considering the question of constit tionality of an Act of Congress t inquiry is whether there is anything tb? F?d?rai Constitution whieh, eit-h in express terms or by necessary imp cation, confers upon Congress tl power to pass the Act in question. Fully impressed with these concede principles we approach the consider; don of the question whether the Act the 24th of December, 1892, which fi convenience will be designated throug; ont this discussion as the Dispensai Act, is in conflict with any coostitutioi al provision either State or Federal. In considering this question the fir inquiry which naturally presents itse is, what is the general nature, scop and objects of the Act as disclosed b its terms Without going into detailed consideration of the numerou sections of the Act, we think it is sai to say that it is ac Act forbidding tb manufacture or sale of intoxicatin liquors as a beverage within the limit of this State by any private individus and vesting the right to mannfactur and sell such liquors in the State exclu sively, through certain designate officers and agents. (We may say her that in the further discussion of thi subject we will drop the word "manu facture" and speak only of the sal or keeping for sale of iotoxica'inj liquor as a beverage, not only for con venience of phraseology, but for tb better reason that in none of thes cases which we are called upon t decide does the question of the manu facture of intoxicating liquors arise but they all relate to the sale or keep ing for'sale of such liquors.) It seem to us that the view which wi have presented as to the nature, soopi and object of the Aot is manifest no only from the title of the Act, bu also from the provisions found in almos every section. The title declares it ti be an Act to prohibit the sale of intoxi? cating liquors "except as herein pro vided," and the various sections shov beyond dispute that the only exceptioi made is the State, which is expressly authorized to engage in v the sale o intoxicating liquors for any purpose whatsoever, either as a beverage OJ otherwise. Indeed the body of the Act goes further than the title; foi while the language used in the title seems to indicate that the purpose o the Act was only to forbid the sale of intoxicating liquors "as a beverage,' yet in the body of the Act it is ver\ manifest that a sale of such liquors foi any purpose, and not simply "as a beverage," is forbidden except wheo made by the State through certait designated officers and agents. Licensed druggists must buy such intoxicating liquors as may be necessary in com? pounding their medicines anet tino turee only from the designated agents of the State. Sven wine for sacramental purposes can only be bought from such agents. IQ other words, the manifest object of the Act is that the State shall monoDolize the entire tramo in intox ?eating liquors to the entire exclusion ol all persons whomsoever, and this too for the purpose of profit to the State and its governmental agencies, coun? ties and municipal corporations ; for the Act, after appropriating the sum ol $50,000 from the State treasury for the purpose of purchasing a supply ol liquors with which to begin the busi? ness, provides that the liquors so pur? chased by the State commissioner shall shall sold by him to the various county dispensers at a profit not exceeding 50 per centum of the net cost thereof, and that the proceeds of such sales shall be paid into the State treasury, upon which the commissioner may draw from time to time to amounts necessary to meet the expenses incurred ia conducting the business, and also provides that the county dispensers may sell such liquors to consumers at a pro? fit not exceeding 50 per centum above the cost thereof, except in sales to licensed druggists, where the profit is limited to 10 per centum, and that all profits, after paying the expenses of such dispensary, shall be divided equally between the county and the municipal corporation with? in which such dispensary is located. It is also provided that the State commissioner may sell intoxicating liquors so purchased by him to persons outside of the State. This being the nature, scope and object of the Dispensary Act, our next inquiry is whether it conflicts with any provision of our State Constitution. There are at least two of the provisions of that instrument with which the Dispensary Act conflicts. The 1st sec? tion of the 1st article of the Constitu? tion reads as follows: -'All meu are born free and equal, endowed by their Creator with certain inalienable rights among which are the rights of enjoying and defending their lives and liberties, of acquiring, possessing protecting pro? perty, and of seeking and obtaining their safety and happiness." And in Section 1 of the same article it is explicitly declared that 4 no person shall be despoiled or dispossessed of his pro? perty, immunities or privileges or deprived of his life, liberty or estate but by the judgment of his peers or the I law of the land." Here, then we have not only an explicit declaration that every person io this Commonwealth has certain rights derived, not from the Government, but from the Creator, which are declared to be inalienable, but also an expressed i declaration that he shall uot bc de j prived of them except in ooo of two j ways-first, by the judgment of his i peers, or second, by the law of the j land. So sacred was this right of pro \ perty regarded that the framers of the : Constitution, not content with the gen j eral provisions above referred to, declar ?og the right and forbidding an inter ference with such rights, proceedec in the 12th section of the 1st article f< declare explicitly that "no person shai be prevented from acquiriug,holding anc transmitting property." Now, then, what are these inalienable rights of personal, liberty and private property thus emphatically asserted anc carefully guarded, and what do they necessarily involve ? As is said bj Earl, J. in re Jacobs, 98 NY., 98, reported also in 50 Am Rep, 636: "Thc constitutional guaranty that no per shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated ; it is owned and kept for some useful purposes and it has no value unless L can be used. Its capability for enjoyment and adaptability to some use are essential, characteristics and attributes without which property can? not be conceived ; aod hence any law which des*rnys it or its value, or takes away any of its essential attributes, deprives the owner of his property. The constitutional guaranty would be of little worth if the Legislature could, without compensation, destroy property or its value, deprive the owner of its use, deDy him the right to live in his own hou9e, or to work at any lawful trade therein." Blackstone in 1 Comm., 138, says; "The third absolute right inherent in every Englishman is that of property ; which consists in the free use, enjoy? ment and disposal of all bis ac? quisitions without any control or diminution save only by the laws of the land." To same effect see what is said by Miller, J., in Pumpelly vs Green Bay Company, 13 Wall, at pages 177-78, also what is said by Comstock, J., in Wynchamber vs People, 13 N. Y., 398, and by An? drews, J., in People vs Otis, 90 N. Y., 48, See also what is said by the same Judge in Bertholf vs O'Reilly, 30 Am Rep, at page 328, 74 N Y., 509. Again it is said in the case in re Jacobs Supra : "So too one may be deprived of his liberty, and constitu titional rights thereto violated without the actnai imprisonment or restraint of his person. Liberty in its broad sense, as understood in this country, means the right not only of freedom from actual servitude, dishonor, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade as an avoca? tion." See also, to the same effect, what is said by Mr. Justice Field in his concurring opinion of Botchers' Union Co vs Crescent City Co, 111 U. S. Rep. at pages 756-7, and what is said by Mr. Justice Bradley io his concurring opin? ion in the same case, in which he was joined by Mr. Justice Harland and Mr. Justice Woods, page 764, and as was said in Live Stock, etc. Association, vs Crescent City, etc. 1 Abb U. S., 388-398: "There is no% more sacred right of citizenship than the rigi t to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor." If, then, it can be shown that the traffic in intoxicating liquors is not in itself unlawful, but on the contrary that intoxicating liquor is a lawful subject of commerce, then it follows from what has been said that the Dispensary Act, in so far as it undertakes to forbid every person in this State from engaging io such traffic conflicts with the above men? tioned constitutional provisions, and is therefor nail and void, unless such legislation can be defended as an exercise of what is known as the police power, a question which will be here after considered. We do not see how it can be denied that such a traffic is lawful. Judge Cooley in his work on Constitutional Limitations, at pages 583-4. says in express terms that it is lawful, and every one of the numerous cases decided by the Supreme Court of the United States, involving ques? tions where State legislation designed to prohibit the sale of intoxicating liquors, are effected by the Inter-State commerce clause of the Constitution of the United States, necessarily imply that intoxica? ting liquor is a subject of lawful com? merce, for, otherwise such questions could not arise. It was only upon ibis ground that the decision in the case of Leisy vs Hardin, 135 U. S Rep, 100, was or could be defended. There the question was whether such liquor imported into the State of Iowa from the State of Illinois could bs lawfully sold io the unbroken packages in which they were imported within the limits of thc State of Iowa, and the Court held that, notwithstand? ing the stringent provisions of the Iowa prohibitory law, such liquors could be sold by the importer as long as the original package remained in his hands unbroken, and that the Iowa statutes, in so far as they purported to forbid such a sale, was in conflict with that clause of the United States Constitution conferring upon Congress the power to regulate commerce with foreign States and between the several States. In that case Fuller, C. J., in delivering the opinion of the Court, cites with approval certain language used by Mr. Justice Matthews, in delivering the opinion of the Court in the case of Bowman against Chicago, etc, Railway Company 125 U. S. Rep, 465, involving the 9ame principle, where he draws a distinction between articles not in a merchantable condition, aDd therefore not legitimate subjects of commerce, for example, rags likely to spread infectious diseases, and other articles which are the legitimate subjects of commerce, , amongst which intoxicating liquors must have been classed, or the decision could not possi bly have been what it was. Even in tb case of in re R?ber, 140 U. S. Rep, z p. 556. Fuller, C. J., recognizes tb same same doctrine, although that eas arose after the passage of what is cou monly known as the "Wilson bill, which was donbtless passed with a vie* to obviate the effect of the decision i Leisy vs Hardin, supra. Indeed the whole course of legisla tion, both State and Federal, demon strates that the ?ale of intoxicating liquors is a legitimate subject of com merce and trade ; for otherwise it wouh be absolutely impossible to vindicate th United States internal revenue law, an< the very numerous statutes which havi been passed in this State ever since tb< foundation of the Government permit ting the sale of intoxicating liquors under such regulations as the law-mak ing power may have from time to timi deemed necessary, either to secure i revenue from such trame or to surrounc it with such restrictions as have beer thought necessary or expedient to pre vent evil apt to grow out of sucl traffic. To say, therefore, that the sale o intoxicating liquors belongs to tba class of wrongs denominated as mal? in se would be to cast a grave imputa? tion upon the law-making departmeui of the Government, both State anc Federal, and this we are very far frote being willing to do. Indeed' the ver\ highest of all authority might be cited to show that the manufacture and sale of spiritous liquors is not malum in se. Indeed the most ardent Prohibitionists, so far as their wishes have taken the shape of law, must be regarded as admitting the proposition for which we contend : for every prohibition lan which has fallen under our notice con tains provisions recognizing this propo? sition by excepting from its operation sales of liquor for certain purposes, namely : Medical, scientific, mechani? cal or sacramental purposes, thereby expressly admitting that the mere sale of intoxicating liquors is not wrong, but actually necessary for certain pur? poses. , The very Act now under considera? tion-the dispensary law-by its ex? press terms shows beyond all dispute that the Geeeral Assembly did not intend to nut its seal of condemnation upon the sale of intoxicating liquors, as morally wrong or even as subversive ol the public welfare, for it makes ample provision for the sale of such liquors tc an unlimited extent for any purpose whatsoever, and makes specific pro? vision for the sale of liquor in just such quantities as would suit all class?e of consumers. Before, therefore, the sale of intoxi? cating liquors can be declared unlawful there must be some valid statute de daring it to be so, and we must say that we have been unable to find any such statute on the statute books ol this State. Of course we can find many statutes forbiding such sale except upon certain prescribed condi? tions, but none making the sale abso? lutely unlawful, unless it be in certain specified localities nuder what are called "loeal option laws," which are exceptional in their character and need not be considered here While, there? fore, without permitting ourselves to indulge in any sentimental declaration as to the evils flowing from an unregu? lated and unrestricted traffic in intoxi? cating liquors, which, however appro priate elsewhere, we do not regard as becoming in a judicial opinion, wc freely remit all that can properly be : said on the subject, and tbarefore we I fully concede the power on the part ol the Legislature to throw around such traffic all safeguards necessary and proper to prevent, or at least minimize, such evils ; and while we furtheu admit for the purposes of this discus? sion that the Legislature may go fur? ther and absolutely prohibit the sale ol intoxicating liquors within the limits ol this State, yet the practical question still remains whether the Dispensary Act falls within either of these classes. It does not seem to us possible to regard the Dispensary Act as a law prohibiting the sale of intoxicating liquors. On the contrary it not only permits but absolutely encourages such sale to an unlimited extent, for by its profit feature it holds out au induce? ment to every taxpayer to encourage as large sales as possible, and thereby lessen the burden of taxation to the extent of the profits realized. If the Act, ioste?d of conSning the privilege of selling liquor to the State, had un? dertaken to confer such exclusive privilege upon one or more individuals, or upon a particular corporation, could there be any doubt that suoh an exer? cise of legislative power would be un? constitutional ? We can see no differ I ence in principle between the two cases. Even the Slaughter House cases, as they are called, 16 Wall, 36, decided by a bare majority of the Court, and which must bo regarded as having gone to the extreme limit, did not go to the extent of holding that an Act forbiding all other persons except the favored corporation from pursuing the lawful occupation of a butcher, or from carrying on any other lawful business or trade, would be constitu? tional, for the opinion of the majority of the Court was rested expressly upon the ground that the Act there in ques? tion did not forbid any person who might desire to do so from pursuing the avocation of a butcher, but only re? quired him, as a measure of police 'regulation, to have his slaughtering j doue at a specified place upon paying reasonable charges described by the ; Act to the corporation for the usc of the conveniences for that purpose, i which such corporation was bound i under a heavy penalty to furnish aoy I one who desired to use them. It is very obvious, therefore, that the there under consideration differed j widely from the Act which we are called upon to consider. If, then, the Dispensary Act ca be defended as a prohibitory law, contended that it may be sustained law regulating the sale of intoxica liquors under what is called the pi power, which, it is claimed, practic; is unlimited in its scope by constitu? al provisions, arid its exercise dept solely upon the legislative will, wi caooot be controlled or restricted the judiciary. It seems to U9 such a claim is not only utter! variance with any just conception < constitutional government, but is tirely inconsistent with the numei cases in which the Courts, both S and Federal, have undertaken to li and restrict the exercise of sud power by State legislation ; and, m is more to the point in this partict case, our own Court has distim repudiated the idea of the exercise what is claimed to be the police po is beyond judicial control. In the case of McCandless agai the Richmond and Danville Railr Company, 38 S. C., 103, Mr. Just Pope, as the organ of the Court, ai referring to the fact that the Circ Judge had held that the statute th in question was a valid exercise of police power, uses this language: "] a careful consideration of the lal official declarations of this law by Supreme Court-of the United Sta bas led us to modify our conceptions what is involved in what is called police power of a State in this Union States. The fundamental idea ascribing such potency to this princi of the law is based upon the inc potable principles of sel f-defe nc? And upoo this point of the case I Court was unanimous, though tb was a general dissent upon aootl point. Indeed, to hold that every Act of I General Assembly passed under I guise of an exercise of the police pow or sought to be defended upon tl ground, is beyond judicial cont would render every guaranty of perse al rights found in the Constitution little or no value. See also what said by Mr. Justice Harlan in the CE of Kugler against Kansas at p. 66 where, after recognizing the existen of and the necessity for the poli power, and after admitting that sa power belongs to the legislative c part m eut, af the Government, he us this laoguage: "It belongs to that d partment to exert what are known the police powers of the State, and determine primarily what measures a appropriate or needful for the protecti* of the public morals, the public heal or the public safeties.'' It does not at all follow that eve statute enacted ostensibly for the pr motion of these ends is to be accept as a legitimate exertion of the poli powers of the State. There are necessity limits beyond which legist tion cannot rightfully go. Whi every possible presumption is to indulged in favor of the validity of statute, (Singing Fund cases, 99 U. S 700,) the Courts must obey the Co stitution rather than the law makii department of Government, and mus npon their own responsibility, dete mine whether, in any particular eas these limits have been passed. "1 what purpose," it was said io Narbui against Madison, 1 Crouch, 137, "a powers limited, and to what purpose that limitation committed to writinj if these limits may, at any time, 1 passed by those intended to be restraii ed ? * * * "The Courts are not bound by me forms nor are they to be misled I mere pretences. They are at libert; indeed are nuder a solemn duty, look at the substance of things whet ever they enter upon the inquii whether the Legislature has transcen< ed the limits of its authority I therefore, a statute purporting to bat been enacted to protect the pub! health, the public morals or the publ safety bas no real or substantial reh tions to those objects, or is a palpabl invasion of rights secured by the fur dameutal law, it is the duty of th Courts to so adjudge and thereby giv j effect to the Constitution." See als j what was said by our own Court in tb case of Whaley vs. Gaillard, 21 S C. at p. 578, where the same principl was applied to a totally different sub ject-the limitation of the power of th Legislature to contract a public debt. It seems to us, therefore, that it i not only our right but our duty ti ioquire whether the Dispensary Ac j was intended to be an exercise of th? j police power to regulate the sale of in j toxicating liquors, and if so whether it; ; terms have any real or substantial re< ' lation to that object. Now it is quite certain that the Act ; does not ?D terms purport to be an Ad j to regulate the sale of intoxicating liquors by persons who may be engag? ed or who may desire to engage in such traffic On the contrary its de? clared purpose is to absolutely prohibit such sale by private individuals, and j this is made more manifest by the I numerous provisions found in the body j of the Act. Now, while the power of the Legis? lature lo enact such laws as may be deemed necessary and proper to regu ? late the sale of intoxicating liquors by f any person within the limits of the j State, in order to prevent or at least j reduce as far as possible the evils which ! are apt to flow from such a traffic is I concerned, yet we cannot regard the i dispensary law a9 such an Act. In I deed it must be a contradiction in terms I to speak of an Act of such a character ! as this is as SD Act to regulate the sale of liquor by the people of th< State, for it is difficult to see how ai Act forbidding a sale cao be regard?e as an Act regulating such sales. That which is forbidden cannot well be regu? lated. But it may be said that the Dispen? sary Act, while forbidding all private persons to sell intoxicating liquors, does permit such sale to be made by the State itself through its authorized officers and agents, and that these sales may be and are regulated by the numerous provi? sions of the Dispensary Act. But when it is remembered that all such restric? tions upoD or regulations of sales of any lawful article of commerce can be vindicated only as an exercise of the police power, we do not see bow such a view can be accepted. The police power, however, can only be resorted to for the government and control of the people of the State, and cannot with any propriety be appealed to for the purpose of controlling the action of the State itself ; and as the State can only act through its authorized officers or agents, the police power cannot be resorted to for the purpose of controlling such officers and agents, if for no other rea? son, because it is wholly unnecessary, as the State has ample means of controlling its own officials without resorting to the undefined and therefore dangerous power know as the police power. But even if this view be not sound, and this provision of the Dispensary Act whereby the State assumes to itself the exclusive right" lo engage in the sale of intoxicating liquors, taking to itself and its subordinate governmental agencies the entire profits of such traffic, to the utter exclusion of all pri? vate individuals, could with any pro? priety be regarded as a police regula? tion for the protection of the public health or. public morals, there would still remain in the question whether such an exercise of the police power was necessary to effect these important purposes; for after all the exer? tion of the police power, especially where it abridges or destroys the con? stitutional rights of the citizen, can only be vindicated as a measure of self defence, as it is expressed by Mr. Justice Pope, supra, or, as it is express? ed by other authorities, by some over? ruling necessity. If the various restrictions and regula? tions as to the sale of intoxicating liquors by the officers and agents of the State be designed only for the protec? tion of the public health or the public mor?is and are fit and appropriate to that end we do not see why such restrictious and regulations could not be applied to the sale of such liquors by private individuals, and if so then, certainly, there was no necessity for such a sweeping Act whereby the con? stitutional rights of the citizen berin before referred to have been absolutely destroyed, but these rights Would be reserved to the citizen and only re? stricted by such regulations as may be necessary for the public good. But in addition to this we are compell? ed to say, without in the slightest degree intending to impeach the motives or to criticise the intentions of the members of the Legislature by which this Act was passed, and on thc contrary, freely according to them (he best motives and the purest intentions, that judging the Act from the terms employed in it (the only way in which a Court is at liberty to form an opinion) it cannot be justly regarded as & police regulation, but simply as an Act to increase the revenue of the State and its subordinate govern? mental agencies, This is apparent from the profit features of the Act. from the various stringent provisions de? signed to compel consumers of intoxica? ting liquors to obtain them only from the officers and agents of the State, and notably by the provisions authorizing the State commissioner to sell such liquors to persons outside of the limits of the State, which certainly cannot be regarded as bearing the finest resem? blance to a police regulation for the purpose of protecting the public bealtb or the public morals of the people of this State. But it is earnestly contended by the Attorney General that if the power to prohibit absolutely the sale of intoxica? ting liquors be conceded it follows necessarily that the State may assume the monopoly of such a trade, and in support of this view he cites Ticdeman on the limitation;? of the police power, 318, where that author u>es the follow? ing language: .'There is no doubt that a j trade or occupation which is inherently j and necessarily injurious to society may I be prohibited altogether ; and it does j not seem to be questioned that the j prosecution of such a busioess may be i assumed by the Government and managed by it as a monopoly " But the only authority which the author j cites to sustain this rather extraordinary I proposition is the case of Brennen's ; liquors, 25 Comm, 278, overlooking en ! tirely the cases of Beebe vs State, 6 In D, 501, which holds an opposite view, and which had been previously cited by j the sanie author at page 197, and ?quoted from, apparently with approval; i but in addition to this we are unable to j perceive how the right to prohibit a j given traffic carries with it the power in j the State to assume the monopoly of j such traffic. j If the right to prohibit the sale of j intoxicating liquors rests upon the ground thatsucb a traffic "is inherently j and necessarily injurious to society." as i is involved in the statement by the j author of his proposition, then it seems j to us that the logical and necessary con j elusion would be that the State could not ! engage in such traffic, for otherwise we i should be compelled to admit the absurd j proposition that a State Government j established for the very purpose of pro ' CONTINUED ON SIXTH PAGE.