Dispensary Decision.
CONTINUED PROM THIRD PAGS.
tee tin g society could lawfully engage io
a nosiness which "is inherently aod
necessarily iojurious to society." We
must prefer, theo, to follow the case of
Beebe vs State rather than State vs
Brennen's liquors, for while it has beeo
said that the case of Beebe vs State has
been overruled, (though the case to that
effect has not been brought to oar atten?
tion,) yet we do not cite the case as
authority, for it is not authority here,
but is only referred to for the reasoning
contained in the opinion. Indeed,
neither the Indiana nor the Connecticut
case could constitute authority in this
case, for the reason that the statute
which we are called upon to construe
contains very different provisions from
those found in either the Indiana or
Connecticut statutes.
Bat in this connection we are enabled
to cite a very recent case which the
research of counsel for respondents
famished ns with, which, it seems to
as, is as con elusive of this whole matter
as any ease from abroad can be. That
is the case of Bippo vs Bocker, 57th
Northwestern Report 331, io which one
of the points distinctly decided is th os
stated in the syllabus prepared by the
Court: '-The police power of the State
to regulate a business is to be exercised
by the adoption of roles and regulations
as to the manner in which it shall be
conducted by others, and DOC by itself
engaging in it."
In that ease the question as to the
constitutionality of an Act entitled "An
Act to provide for the parchase of a
site aod for the erection of a State
elevator or ware hoase ai Daloth for
poblic storage of grain," and one of the
grounds upon which it was sought to
sustain the constitutionality of the Act.
was that it was an exercise of the police
power. But the Ooart held that, while
**the right of the State, io the exercise
'of its police power, to reg?late the busi?
ness of receiving, weighing, inspecting
and storing grain In elevators and ware?
houses as being & business affected with
a public interest is now settled beyond
all controversy" by the same case of
Munn vs Illinois, 94 U. S. 113, and
others on the same line, yet that the '
Act there in question could be
regarded as a police regulation of
the business, and that the police
power of the State to regulate a busi?
ness, does not include the power to en?
gage in carrying it on. It would ex?
tend this opinion to an unwarrantable
length to make farther quotations from
the opinion of the conrt in that case,
which might he instructive and profita?
ble. It seems to us, therefore, that in
no vie? of the case can the dispensary
act be regarded as a police regulation of
the business of selling intoxicating
liquors, ?and even if it could be that
such police power does not include the
power on the part of the State to en?
gage in carrying on such business
Finally the constitutionality of the
dispensary act is assailed upon the
ground that the Legislature have un?
dertaken, thereby, to embark the State
in a trading enterprise, which they
have no constitutional right to do-not
because there is any express prohibition
to that effect in the Constitution, but
because it is utterly at variance with the
very idea of civil government, the es?
tablishment of which was the expressly
declared parp?se for which the people
adopted their Constitution ; and there?
fore all the powers conferred, by that
instrument upon the various depart?
ments of the government most neces?
sarily be regarded as limited by that
declared parp?se. Hence, when by the
first section of the second article of the
Constitution, the legislative power was
conferred upon the General Assembly,
the language there used cane, ot be con?
strued as conferring upon the General
Assembly, the unlimited power of leg?
islating upon any subject or for any
parp?se according to its unrestricted
will ; bat mast be construed as limited
to such legislation as may be necessary
or appropriate to the real aod only pur?
pose for which the Constitution was
adopted, to-wit, the formation of a civil
government. In this connection it is
noticeable that the word "all" is
not used in the section above referred
to, but the language used is "the legis?
lative power,'* meaning such legislative
power as may be necessary or appro?
priate to the declared purpose of the
people in framing their constitution and
conferring their powers upon the va?
rions departments, constituted for the
sole purpose of carrying into effect !
their declared purpose. It is manifest i
from the numerous expressed restric- i
tioas upon the legislative will, found in i
the Constitution, that 'he people were
not willing to entrust even their own
representatives with unlimited legisla?
tive power, but as if not satisfied with
these numerous expressed restrictions,
and perhaps fearing that some import?
ant right might have been overlooked,
a general clause, not usually found in
State constitutions, was inserted, appa?
rently designed to cover any such omis?
sions, for in section 41 of article I it is
expressly declared that "the enumera?
tion of rights in this constitution shall
not be construed to impair or deny
others retained by the people, and al!
powers not herein delegated remain
with the people.'*
Now upon well settled principles of
constitutional construction we are not at
liberty to disregard this clause, but
must give it some meaning and effect,
it seems to us that the true construction
of this cl ause is that while there are many
rights which are expressly reserved to
the people, with which the Legisla?
ture are forbidden to interfere, there
ard other rights reserved to the people,
not expressly but by necessary implica?
tion, which are beyond uhe re&ch of tbe
legislative power, unless such power
has been expressly delegated to the
legislative department cf the Govern?
ment. These views have not ouly the
support of the highest authority in this
country, as may be seen by reference
to the eases of Loan Association vs.
Topeka, 20 Wall, 655, and Parksburg
vs. Brown, 106 U. S., 437, but have
been distinctly adopted by the Supreme
Court of this State in Feldmann vs
"City Council 23 S C., 57, as well as
by the Courts of Massachusetts and
Maine, as may be seen by reference to
Allen vs. Joy, 60 Me, 124, ll Am
Rep, 185 and Lowell vs city of Bos?
ton lil Mass, 454,15 Am Rep. 45,
and what is more, they were applied to
the vital power of taxation-a power
absolutely essential to- the very exis?
tence of every Government. These cases
substantially hold that although there
may be no express restrictions contain?
ed in a State Constitution forbidding
the imposition of taxes for any other
purpose than a public purpose, yet
such a restriction must necessarily be
implied from the very nature of civil
government, and hence the legislative
department under the general power of
taxation conferred upon it cannot
impose any tax'except for some public
purpose.
Upon the same principle it seems to
us clear that any Act of the Legisla?
ture which is designed to, or has the
effect of, embarking the State in any
trade which involves the purchase and
sale of an article of commerce or profit,
is outside and altogether beyond the
legislative power conferred upon the
Geoeral Assembly by the Constitution,
even though there may be no express
provision in the Constitution forbidding
such an exercise of legislative power.
This is not and cannot properly be
regarded as one of the functions of
government. On the contrary its func?
tion is to protect the citizen in the
exercise of any lawful employment, the
right to which is guaranteed to the
citizen by the terms of the Constitution
and certainly has never been delegated
to any department of the Government.
We do not deem it necessary to go
into any extended consideration of the
fearful consequence of recognizing the
power of the Legislature to embark the
State in any trade arising from the
hazards of all business of that charac?
ter, or to comment upon the dancer to
the people of the monopoly of any
trade by the State, for if it can mono?
polize one it may monopolize any or all
other trades or employ men ts, although
it is permissible for a Court when called
upon to construct an Act to consider
its effects and consequences. For it
may be said, that the good sense and
patriotism * of the members of the
Geoeral Assembly may be safely relied
upon to protect the people from such
apprehended dangers.
Bat that great luminary of the law,
Chief Justiee Marshall, did not seem to
think that this was a sufficient pro?
tection, as may be seen by what he
said io McCollouch vs. Maryland 4
Wheat. 316, and in Brown vs Mary?
land. 12 Wheat, 415 Nor did the
Supreme Court of the United States in
later days seem to think that this con?
fidence io the good sense and
patriotism of the legislative department
was a sufficient safeguard against
exercise of a power which might be?
come dangerous, for while on the one
hand in the case of Dobbins vs. the
Commissioners of Erie County, 16
Peters, 435, it was held that a State
cannot tax the salary of a United States
officer : on the other hand in the case
of the Collector vs. Day, ll Wall, 113,
it was held that the United States could
not tax the salary of a State officer,
although in the case last cited, io his
dissenting opinion, Mr. Justice Bradley
took the ground that such confidence?
would be a sufficient safeguard, against
a dangerous exercise of the taxing
power.
These two cases were decided upon
the principle that aa "the power to tax
involved the power to destroy," as had
been said by Marshall, C. J , tn
McCollouch vs. Maryland, supra, the
only adequate protection was to deny
the power of the State Government to
tax the means and instrumentalities
employed by the United States Govern- I
ment to carry into operation the powers
granted to it, and for a like reason the
power of the United States Govern
\ ment is denied to tax the means
and instrumentalities employed by the
State Government to carry iuto effect
its power, although both of these
Governments were established for the
protection and preservation of the
rights of the same people ; and tbis was
held, although there is no express?, pro?
vision in either of the Constitutions of
those two Governments forbidding the
imposition of such a tax, for as was
6aid by Mr. Justice Nelson in deliver
! ing the opinion of the Court- in the case
i last cited, "it is admitted that there is
! oo expresp providion in the Constitution
j that prohibits the General Government
! from taxing the means and instrumen
j talkies of the States, nor is there any
prohibiting the State from taxing the
means and instrumentalities of that Gov?
ernment. In both cases the exception
rests upon necessary implication and is
upheld by the great law of self-preser?
vation."
It is urged, however, that in the
past the State engaged in the business
of banking and in the establishment of
a State college, and these furnish a
precedent for the State engaging in
any other business which may be
deemed by the legislative department
of the Government conducive to the
public welfare. In the first place these
institutions were established under the
Constitution of the State of 1790,
which contains no such provisions as
that found io the 41st section of the
1st article of che Constitution of 18C
In the second place we are nor infer
ed of any instance in which t
constitutionality of ?he Ac's esta bli*
ing either of these institution? w
ever brought to the test of judicial c
cisi?n, and therefore they can fort?
precedent for our guidance in this ca;
In the third place the establishment
a bank may be and has been most ab
defended upon the ground that such
institution is necessary to the prop
control and management of the fisc
affairs of the Government, aud
I therefore a proper governmental iustr
j mentality, though we must not be u
derstood as endorsing the proposit?
I thus ably defended, for that question
not now before us, and we do not pt
pose now to intimate any opinion upi
the subject. As to the College, we i
not regard that institution in at
? proper sense of the tenn as a busines
certainly not on a trade, and there is 1
analogy whatever to the business
buying and selling intoxicating liquor
or any other article of commerce. Ar
as to the business of school teaching,
such an occupation can be characte
ized as a business, in the sense
which that term is used in this opinioi
the very fact that the framers of tl
present Constitution saw fit to inco
porate ?D the preseot Constitution a
express mandate requiring the esta
lishment of public schools, is not onl
destructive of any argument draw
from analogy as to the power of tl
State to engage in any business, bi
also warrants the inference that wit hot
such express mandate the State woul
not have the power to engage ?D sue
so-called business.
Finally it seems to Us that tl:
question as to the right of the State I
engage in any trade or business for tb
purpose of gain has been practicall
determined adversely to such right i
the recent case of Mauldin vs Greet
ville, 33 S. C., 1. There one of tb
questions raised was as to th ? power <
the city council to purchase aud hoi
an electric light plant for the purpo?
of lighting the streets and publi
buildings and offices of the city, an
also for the purpose of furnishin
lights to the people at proper charge
therefor. The Court held that whil
thc city council was invested wit
power to provide for lighting the street
and public buildings in the manne
proposed, yet they had no power t
engage in the business of furnishin
lights to provide individuals io tbei
residences or places of business, for th
reason, as it was poiotedly expresse
by Mr. Justice McGowan in ?eliverioj
the opinion of the Court: "As w
understand it all the powers given t
the city council were for the sole an?
exclusive purpose of government, an?
not to enter into private business of an1
kind outside of the scope of the cit;
government." And this was said
although the charter of the city, tb*
Constitution, so to speak, COD ferr et
upon the city council the broadest ant
most extensive powers for the gooc
government of the city. So here w<
may say that the legislative power con
ferred upon the General Assembly bj
the Constitution of the State was giver
to them for the sole and exclusive pur
pose of government, and not to entei
into private business of any kind out?
side of the scope of the State Govern?
ment.'"
Although thc counsel for appellaui
very properly did not rely upon the cae?
of the State ex rel Hoover vs the
Town Council of Chester, 17 S. K
752, as any authority whatever upon
the questions presented io the present
case, yet it may not be amiss for us to
say that the questions here presented
were not there decided or considered,
for the obvious reason that they were
not necessary to the decision of that
; case, and therefore, und?r the well set?
tled rule (Cooley on Cons Lim 163.)
that a Court will not and ought not
i to pass upon a constitutional question
and declare a statute to be invalid un?
less a decision upon that very point be?
comes necessary to the determination of
the cause. Hence io the Chester case
the Court did not feel at liberty to con?
sider the general question or the con?
stitutionality of the Dispensary Act and,
on the contrary, carefully guarded
against even an intimation of opinion
as to the general question. Now, how?
ever, the question is squarely presented
and has been most fully and ably
argued on both sides, and we are com?
pelled tc meet it. After the fullest and
most careful and deliberate considera?
tion we feel constrained to say that the
Act ia clearly unconstitutional except
? in so far as it forbids the granting of
? licenses to retail spirituous liquors be?
yond the 31st of June, 1893 Under
this view all subordinate questions pre?
sented in all the cases except the first
named lose ali practical importance and
need not therefore, be considered.
In the case first mentioned in the title
of this opinion, however, there are
other questions presented, none of
which it is necessary to decide, although
the necessity for the consideration of
Others is superseded by the conclusion
which we have reached on the main
question of the constitutionality cf the
Dispensary Act. It may be stated in
general terms that this was an action
instituted by certain taxpayers of the
County of Darlington in behalf of
themselves and oilier taxpayers of said
county, who are too numerous to be
made parties for the purpose of enjoin?
ing and restraining the defendants from
establishing a dispensary in thc town of
Darlington upon several grounds, main?
ly upon thc ground that the Act provid?
ing for such establishment is uucousti
tutional, null and void.
It will be well, however, for a full
? understanding of this branch of the
I case that the pleadings in the case with
out thc acoompauying affidavits should
be incorporated in the report of the
case. Without considering at any
length this question, it seems to us that
the remedy by injunction is appropriate
as presented by the pleadings. The
real object is to prevent certain persons
from engaging in a business supported
by the public funds derived from taxa?
tion under an Act of the Legislature
declared to be unconstitutional ; and we
think the authorities cited by the coun?
sel of record for the plaintiffs, especial?
ly Cooley on Taxation, 764, and 1 Pom
on Eq Jur, 277, together with our own
case of Mauldio vs. Greenville, supra,
are amply sufficient to sustain the views
taken by the Circuit Judge.
All the other exceptions in this case
present questions which in our judg?
ment, it becomes unnecessary to con?
sider under the view which we have
taken as to the unconstitutionality of
the Act.
The judgment of this Court is that
the judgments and orders appealed from
in each of the cases mentioned in the
title be affirmed.
How the Prohibitionists Will Make
Their Fight.
The Prohibitionists of the State, who,
during the past week, issued their call
for a June convention, wish, so they
say, to place themselves exactly right
before the people. With this object in
view one of the members of the execu?
tive committee, which issued the call
yesterday, to a representative of The
State, made a statement for publica?
tion,
He said: "The idea has gone out,
and I wish to correct it at once, that
the Prohibitionists ran here right upon
the heels of the uprising against the
dispensary law and issued their call.
The face is and all should know it, that
the call for our meeting was issued
two weeks before the trouble began and
the meeting was called for the very pur?
pose of considering this matter of a con?
vention and a nomination of the State
ticket. Some seem to think, too. that
we are going to make the fight, if we
deem it advisable, to put out a ticket at
the general election in November. I
wish to state emphatically that our fight
will be made, ir the convention nomi?
nates its ticket, within the Democratic
ranks, and at the primary elec?
tion in August. We are fighting for
prohibition, and if we fail we will not go
beyond the primary. We will know no
factions in this thing. Our fight will
be made, as I say, inside the Demo?
cratic party, and we expect to win with
Democratic votes. Let me state further
that this position is consistent with that
which we assumed from the very begin?
ning of this contest, and it is distinctly
set forth in the very beginning of our
call. We request all Democratic voters
in the State who will support prohibi?
tion to meet and send delegates to the
convention, and then again we say that
there is no intentioo on our part of
going outside of the white people of the
State to settle it. We have left the
matter of nominating a ticket to the
convention which is to be held, lt may
be possible that a ticket will not be nomi
noted, for we cannot tell yet what
changes there will before the convention
meets Something may transpire io
the political world to change our idea of
nominating a ticket. Such is the situa?
tion."-State, April 9.
'Dis Yere Foolishness "
The pathos of Governor Tillman's
letter to the Newberry Rifles, in which,
after solemnly dismissing them
from the service as unworthy to wear
the uniform of a soldier, he winds up
with consenting to pay their bills, and
describes them as "band-box soldiers,"
reminds us of an incident which ac?
tually happened in Charleston io Radi?
cal times. A young white attorney
was employed in a case before Sam
Dickinson, a trial justice in black,
well known to the people of that day
for his respect for his own office and
dignity. A coloied lawyer was on the
other side, and, being offended at the
repeated rulings of the justice in favor
of his white adversary, found fault
with his decision and was directed to
take his seat, which he declined to do
with many uncomplimentary words to
the court. Thereupon a formal com?
mitment for contempt was drawn out
by the young white lawyer in the
usual form, which Sam signed and
with all his dignity read out to the
culprit, ending solemnly as usual, "And
it is ordered that you be fined the sum
of ten dollars and committed to the
common jail until you have paid the
said fine and purged yourself of con?
tempt to this court." And, then, as
his coustable retired with the offender,
Sam added : An* you git 'uioug dem flea
an' bug in dat jail you lam what, 'tis to
trouble wid all dis yere foolishness. I
-Columbia Journal.
At the congress of women, on the
subject of improved dress, held in
New York the other day, one of the
speakers asserted that the first reform
should be in the direction of more
pockets. "It is all very well for us to
say we are the equals of meu," she
added, "but when men move around
with from twelve to fourteen con?
venient pockets in their clothing while
we have only one, and that so bidden
away that it is as hard to find as a
match in the dark, we are not their
equals and they know it." Give them
pockets and they will want pants.
The magic, silent sewer-The Wheeler k j
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-AT
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Nov. 7-0
The
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It's a word to the wise-a con?
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Por full particulars address
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ROCK HILL, 5. C.
Master's Sales.
By J. E. Jervey, Auctioneer,
State of South Carolina,
COUiNTY OF SUMTER,
TN THE CO?RT OF COMMON PLEAS.
PURSUANT to the judgments and order
of the Court aforesaid, severally made in the
following entitled cases, I will offer for sale
at Public Auction, before the Court House
in the City of Sumter, County and State
aforesaid on the FIRST MONDAY in
MAY, next, (being the 7th day of
said mooib,) between the hours of eleven
o'clock in the foreooon and five o'clock in
afternoon of said day, the real estate in each
case described, on the term3 in each case
specified.
In the case of Maude G Solomons
Plaintiff, against Susan Peters
Defendant.
That lot of land in the City of Sumter in
said county and State, represented as "1" on
a plat, dated February, 1891, made by H. D.
Moise, C. E., and recorded on page 636 in
Book "CCC" io the office of the Register of
Mesne Conveyance for said County; said lot
being a parallelogram in shape measuring
forty-seven and six-tenths (47 6-10) feet on
each of its Eastern and Western boundary
lines and one hundred and fifty feet on ita
Northern and Southern boundary lines each:
Bounding on the North on what is desig?
nated on said map as "Solomons Street,'7 to
the East on lot numbered "9" on said map ;
on the South on lot unmbered "2" on said
map, and to the West on "Sumter
Street," of said city.
Terms-Cash. Purchaser to pay for papers',
In the case of Aaron D. Richer
Plaintiff, against William P. Smith
and the Kennesaw Marble Company.
That lot of land in the City of Sumter in
said county and State containing one and
one-half acres, more or less, bounded on the
North by land now or formerly of the Estate
of-Folsom; on the East by land of Joseph
H. Earle, on the West by land of J. J. Muller
and on the South by Haynsworth Street,
fronting and measariog on said street one
hundred and eighty-fonr feet, being the same
lot which was conveyed to the said William
P. Smith by W. E. Dana Stiles and others,
on 22d March, 1879.
Terms-Cash. Purchaser to pay for napers.
W. H. INGRAM,
Master for Sumter County.
Apr. ll.
H. A. HOYT,
MAIN STREET,
SUMTER, S. C.
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Mixed Oats, at 55c. ?. *' 44
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Choice Timothy Hay, $1.20 per 100 lbs , in bales.
Cotton Seed Meal, at $1.30 per sack.
Cotton Seed Hulls, at $4 50 per ton in bulk.
Lime, $1.25 per barrel.
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