The Pickens sentinel. [volume] (Pickens, S.C.) 1871-1903, 1893-11-16
THE DISPENSARY LAW.
JUDGE WALLACE DECLARES II TO BE
CONSTITUTIONAL.

ance-Tochn,oal objections to tho Phra-
seoloay of the Act Dl.misstd.
ANDERSON, Nov. 8-In the ease ui
the State VS. John o. O'Donnell, indict
ed for selling whiskey without H.
cense and keeping a place where whis.
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 in
dictment:
The question as to the constitutions
allty 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 and
others equally as learned hold differ
ent opinion. l have my own opinion,
which / will proceed to announce with
out hesitation or delay. The motion
was to quash the Indictment, because
hrst the Act provided no punishment
for selling liquor without a license. /
may say in passing that the words
without a license contained in the
,nrSt count are mere surplus lge, 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 a 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
ny statute 1t belongs to the class Of
mala prohibita. The commission of
hjfn6 NV cfaf, ~
fence, because it is violation of law.
The offence charged is prohibited by
the Dispensary Act and thus to sell IL
quor becomes violation of the law
and IS therefore an offence
NO offence created by statute is fel-
onY unless it Is so declared. Therefore
the selling IF liquor in violation of
Section q of the Dlspensary Act is a
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-
Vlction where no punishment is provi-
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 repugHant to the Con-
stitution."
L am, therefore Of the oplni on, and
80 hold, that the offence as charged is
punishable under the section | have
Just quoted.
The next ground was that Section 81
OF the DiSpenSary Act under which the
Indictment is framed, relates only to
the sale or distribution of liquors kept
by clubs or associations tJr the use of
the members. The section referred to
reads AS follows: "Sectfon 81. Every
Gerson who shall directly or indirectly
keep or maintain by himself, or by 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 abut another in bartering
or selling any intOXi eating liquors 30
received or krpt, shall be deemed guilty
or mlsdemeanOr and upon conviction
thereof be punished by Il fine of not
less than one hundred dollars nor more
than five hundred dollars, and by i'm
prlsonment in the county jail not less
than ninety days, nor more than one
year" 1t is clear that this section does
not coniine its provisions to clubs and
associations, but includes tn" receiving
and selling Of liquor in any "other
place."
The third and last grouhd. ma the
iGain ground is that the Di1peusa, Y
Act is unconstitutional, and the argn-
ment under this branch is concerned
chiefly with the purpose of the Act
and the question as TO the police power
of the State.
There seems to be some confusion re.
garding the distinction between the
FEDERAL Constitution and the S'ate
Constitution. They are essentially diff
terent in their nature. The COnstitu-
tion Of the United States confers upon
Congress ceI tain we'll defined powers,
and such other powers only as are nee
essarily implied from such grant, and
when an issue arises as to the uncOn.
stltutiOnality of an Act Of Congress
the question IS, "has the power to legis,
late on the subject matter of the 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 verv few
limitations; and therefore, upon an is
,uue regarding the cOnstituLlonalltv of
the State the question is "has the pow.
er TO leglslate upon the subject m after
OF this Act been withheld by the State
Constitution"
On this point have here an excel.
dent authority which [ shall read: "The
people OF State in creating by their
organic law 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 sub
jects and under certain restrictions to
the Congress of the United States, and
except also In SO far as they contempo-
raneously impose checks and limits up
on the legislative authority. Hence
the Legislature Of State may enact
any law, (not infringing upon the other
'departments) of any character or on
any subject unless it is prohibited
elCner In express terms or by necessary
mpncatl0n In the Constitution of the
United States or of that State. In
otner words the constitutions are 10 he