The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1893-11-15
THE DISPENSARY LAW.
JUDGE WALLACE DECLARES " TO BE
CONSTITUTIONAL.

ance-Tech h nical Obi sctions to the Phra-
seolocy of the Act Dismissed.
ANDERSON, Nov. 8 In the ease of
the State VS. John o. O'Donnell, indict'
ed for selling whiskey without IL
cense and keepin" place where Whls.
key is kept cor sale, ETC., which was
called in the Court of Sessions Wednes-
day, Judge Wallace rendered orally the
following decision, on motion of the
defendants counsel to quash the To-
dictment:
The question as to the constitution
ality of the Dispensary Act has been
much discussed in the State. and has
developed considerable diversity of
opinion in regard to it. Some able and
learned-lawyers hold one opinion aud
others equally as learned hold differ
eat opinion have my own opinion,
which will proceed to announce with
out hesitation or delay. The motion
was to quash the indictment, because
first the Act provided no punishment
for selling liquor without a license. l
may say in passing that the words
without a license" contained In the
first count are mere surplusage, and
that the offence charged is that of SELL
Ing liquor.
At common law crimes are divided
into two classes, namely, mala in Sc and
prohibita. To illustrate: We have a
statute declaring murder to be crime
or rape or arson or burglary. These
crimes are described and punishment
is provided for them. They belong to
the class described as mala in SO. When
the commission of an act is prohibited
by statute it belongs to the class of
mala prohibita. The commission of
an act prohibited by statute is an Of
fence, because it is violation or law.
The offence charged Is prohibited Dy
the Dispensary Act and thus to sell IL
.1uor becomes q violation of the law
and is therefore an offence.
No offence created by statute is tel-
ony unless it Is so declared. Therefore
the selling IF liquor in violation OF
Section of the Dlspensary Act is
misdemeanor and is punishable, if not
by any penalty provided in said Act,
then under the provisions Of the stat
ute, Section 1858, Revised Statutes:
"Section 1858. In cases of legal con-
victlon where no punishment Is prov1-
ded by statute the Court shall award
such sentence as Is conformable to the
common usage and practice IN this
State according to the nature Of the Of
fence and not repugaant to the Con-
stitution." ,
am, therefore of the oplnio on, and
80 hold, that the offence as charged Is
punishable under the section l have
just quoted.
The next ground was that Section Il
of the Dispensary Act. t.under which the
indictment is framed, relates only to
the sale or distribution of liquors kept
. by clubs or associations for the use OF
the members. The section referred to-
reads as follows: section Il. Every
person who shall directly or indirectly
keep or maintain by himself, orby as
sociating or combining with others, or
who shall in any manner aid, assist or
abet in keeping or maintaining any
club room or other place in which any
intoxicating liquors are received or
kept for the purpose of barter or sale,
as beverage or distribution or divis-
ion among the members OF any club or
association, by any means Whatever,
and every person who shall barter, sell
or assist or abet another in barterlng
or selling any Intoxicating liquors 30
received or kept, shall be deemed guilty
or misdemeanor and upon conviction
thereof be punished by Is fine of not
less than one hundred dollars nor more
than five hundred dollars, and by i'm
prisonment in the county Jail not less
than ninety days, nor more than one
year." 1t is clear that this section does
not copfine its provisions to clubs and
associations, but includes the receiving
and selling of liquor in any "other
place"
The third and last grouhd. and the
main ground is that the Dispensa'y y
Act is unconstitutional, and the argu-
ment under this branch is concerned
chiefly with the purpose of the Act
aud the question as to the police power
Of the State.
There seems to be some confusion re-
gardipg the distinction between the
FEDERAL Constitution and the State
Constitution. They are essentially dlf-
ferent in their nature. The Constltu-
tion of the United States confers upon
Congress certain well defined powers,
and such other powers only as are nee.
essarily implied from such grant, and
wnen an issue arises As to the unGon-
stitutionality of an Act of Congress
the question IS, "has the power tn 'agls.
late on the subject matter Of Lae Act
been granted to Congress by the Fed.
eral Constitution On the other hand
the Constitution Of South Carolina be-
slows general legislative power upon
the General Assembly with very few
limitations; and therefore, upon an is
sue regarding the constitutionalIty of
an Act of the General Assembly of
the State the question is has the pow
er to legislate upon the subject matter
of this Act been withheld by the State
Constitution"
On this point have here an excel
lent authority which shall read: "The
people OF State in creating by their
organic law a legislative department.,
of government, confer upon 1t the
whole of their inherently sovereign
and uncontrolled power of legislation,
except in 80 far as they have delegated
this power in respect to certain SUBJ
jects and under certain restrictions to
the Congress of the United States, and
except also in so far as they contempo-
raaeously impose checks and limits up
ON the legislative authority. Hence
the Legislature of a State may enact
any Law, (not infringing upon the other
departnisnts) of any character or on
any subject unless it is prohibited
either In express terms or by necessary
Implication In the Constitution of the
United States or of that State. In
other words tbs constitutions are to be
considered as Limitation upon the leg