The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1893-10-18
THEDIsPENsARY ACT INVALID.
Decision of Judge Hudson in the Colunabia
Cases Ouashing the Indictments, not
Only for Being Indefinite, but Be
cause the Dlspensary act is Un-
constitutional and an Indict-
ment is Of no Force.
Especial to News and Courier.


now has the opportunity of testing all
constitutional points that can be raised
in reference to the Dispensary Act. AS
result of the opinion filed to-day by
Judge Hudson all these questions can
be heard by the Supreme Court upon
an appeal on the part Of the State.
This will no doubt be the result Of the
whole matter, as Governor Tillman
has often said that he was anxious to
accept the opportunity to have final
decision of the Court of last resort in
this State. 1t will now be seen whether
this was mere talk or whether the State
really wants to have the questions de-
cided by the Supreme Court.
Judge Hudson has now decided that
the Dispensary law from beginning to
end is unconstitutional; that it was
based upon a wrong principle Of Gov
ernment, and that if one and the funda-
mental part Of it is wrong the auxiliary
parts of it must necessarily fall with
it. The counsel for the liquor mep are
anxious for the State to push the issue.
AS the liquor men who were charged
| with selling rice beer hold annual Ii
censes and the present indictments
against them have been quashed, the
cases are at all end, unless the State
should succeed in its appeal. Judge
Hudson holds that the statute in ex-
istence prior to the passage Of the
Dispensary Act is now in force. So
, licitor Nelson is awaiting instructions
from Attorney General Townsend be-
fore be takes any further action. He is
of the opinion that all Of the cases had
as we'll be dismissed if no appeal is to be
| made. If the State can find any other
way of bringing an Indictment it has
the opportunity Of doing so.
When the Court met this morning
Judge Hudson surprised the Bar with
the announcement that he had worked
on the case most of the night and had
come to conclusion. He made an
oral announcement of his views and
promised that he would prepare his
reasons in writing at the earliest oppor-
tunity. His views are, if anything,
more tersely and strongly expressed
than ever. He said:
Il beg to say to counsel engaged in
arguing the case yesterday in which
parties were charged with selling liquor
| that I devoted last night to careful
examination of the authorities con-
| tanned in the books and in the written
| arguments submitted to me and have
| arrived at q conclusion; but have not
had time to reduce to. writing the rea-
sons for the conclusion which I have
reached. But inasmuch as it is neces-
| sary that conclusions should be an
|
determine what disposition is to be
made of these cases upon the docket, l
will announce them now, and will, as
soon as practicable, give my reasons
therefor. In the first place, whether
these indictments shall be considered
as drawn for the violation of the dis
pensary law, or whether they should
| be indictments under the law as it pre-
| viously stood, is immaterial so far as
| one view of the case may go.
1.-THE indictments are fatally defec-
| tive, whether drawn with reference to
| the previous law or with reference to
the dispensary law. The allegations in
the Indictment are not sufficient; it is
just naked allegation that the defen-
dant is guilty Of selling intoxicating
liquor contrary to the form Of the
statute. That is not sufficient. 1t is
| necessary that the accused shall be
notified of the time, place and person
to whom the sale was made. Everyone
charged with the crime has the right
to be informed of the exact nature of
the charge, the time, place and circum-
stances under which the alleged crime
was committed.
"These indictments do not contain
such allegations and had they been pre-
ferred against the defendants before the
enactment of the dispensary law they
would have fallen under a motion to
quash. At the present time, supposing
the dispensary to be valid and in full
force, the same objection applies and
the indictment would have to be
quashed. I might stop here and say
no more, but in doing 80 would not
discharge my duty as Judge because
the parties are entitled to have their
motion passed upon for reasons assigned
therefor, and it devolyes upon me,
therefore, to meet the responsibility
and determine the whole question.
"Now, admitting for the sake Of
argument that the Dispensary Act is
constitutional, it is an anomaly which
would not be discovered from casual
reading of the Act, but it nevertheless
exists, that for the simple act of retail
ing ne punishment is prescribed ia any
of the various sections. Punish ment is
provided against this violation in GER
tain particulars not necessary now to
enumerate. but in no section Of the
Act is any. punishment prescribed for
a single act Of retailing.
"The repeating clause of the Dispen-
sary Act destroys all previous systems,
revokes every statute passed upon the
subject of retailing and prescribes es-
pecially that for a violation of it the
party shall be punished according to
the provisions of the dispensary law.
So we cannot seek for punishment,
cannot seek for penalty, in any pre-
vious existing Act if the Dispensary
Act should stand. 1t is singular
omission, and is fatal in the indict.
ment framed as these indictments are,
even if they were framed with more
particularly. If the time, place, price
and the person to whom sold was set
out in the indictment we must look to
the Dlspensary ACT alone 1or punlsn-
ment, and, strange to say, there is none
there.
"a statute forbidding the doing of an
Act but at the same time prescribing no
punishment therefor is nullity un-
less that offence was one forbidden by
common law; in that event we could
resort to the common law; but it is
not cannon law offence and for its
punishment we are obliged to 60 to
the statute, and if none is there pre-
scribed then the enactment becomes as
to that offence null and void. This
upon the supposition that the dispen-
/ sary law is unconstitutional.
Now the question arises as to the
constitutionality of the Act, because
the motion to quash is based upon that
ground as well as upon the defects in
the indictment.
ut has fallen to my lot to adjudge
heretofore that the dispensary feature
OF the Act which establishes dispen-
saries throughout the State is uncon-
constitutional, and my reasons therefor
were given. I will not repeat them