The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1893-11-15
ANOTHER D1sPENsAkx DECISION.
., Judge Wallace Declares 1t to be constatu-
,ioaal-Under its Police Power the
State Bas a Perfect Right to
Sell Liquor.
Especial toSunday News.

lSDSclal 70 touuUay news.
ANDERSON, S. c., November 4.-I1
the case of the State VS. John 0.
O'Donnell, indicted for selling whiskey
without g.; license and keeping 8
place where whiskey is kept for sale,
etc. etc, which was called in the Court
of Sessions Wednesday, Judge Wal
lace rendered orally the following de-
cision, on motion of the defendants
counsel to quash the indictment:
The question as the censtitutionallty
of the Dispensary Act has beeni much
discussed in. the State, .aud has de-
veloped considerable diversity OF
opinion in regard to it. Some able AID
learned lawyers hold one opinion and
others equally as learned hold diff
ferent opinion. have my own opin-
ion, which I will proceed to announce
without hesitation or delay. The mo-
tion was to quash the indictment, be-
cause first the Act provided no punish
ment for selling liquor without q
license. I may sayin passing that the
words without a license" contained
in the first ccant are mere surplusage,
aud that the offence charged is that of
selling liquor.
At common law crimes are divided
into two classes, namely; mala in se
and prohibita. To illustrate: We
have a statute declaring murder to be
8 crime, or rape or arson or burglary.
These crimes are decribed and punish
nent is provided for them. They be-
long to the class described as mala in
Sc. When the commission Of an act is
prohibited by statute it belongs to the
class of mals prohfbita. The :com-
mission of an act prohibited by statute
is an offence; because it is a violation
Of law. The offence charged is pro-
bibited by the Dispensary Act, and
thus to sell liquor becomes violation
of the law.and is therefore an offence.
No offence created by statute is a
felony unless it is so. declared. There
fore, the selling Of liquor in violation
Of Section;6 of the Dispensary Act is a
misdeneahor and is punishable, if not
by any penalty provided in said act,
then under the provisions of the
statute, Section 1858, Revised Stat
uses:
'.Section 1858. In cases of legal
conviction where no punishment is
provided by statute the Court shall
award such sentence as is conformab!e
to the common usage and practice in
this State according to the nature. OF
the ofense and not repuguant to the
Constitution"
: I am, therefore, of the opinion, and
so hold, that the offence as charged is
10 I'll no
just quoted.
The next ground was that Section 2l
of the Dispensary Act, 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 re-
ferred to reads as follows: Section 81.
Every person who shall directly or in
directly keep or maintain by himself,
or by associating or combining with
others, or who shall in any manner
aid, assist or abet in keeping or main
tanning any club room or other place
in which any Intoxicating liquors are
received or kept for the purpose Of
barter or sale, as a beverage or distribu-
tion ordivision among the members of
any club or association, by any means
whatever, and every person who shall
barter, sell, or assist or a5et another in
bartering or selling any intoxicating
liquors so received or kept shall be
deemed guilty of nisdemeanor, and
upon conviction thereof be punished
a fine of not less than one hundred by
dollars, nor more than FIVE hundred
dollars, and by imprisonment in the
county Jail not less than ninety days,
nor more than one year." It is clear
that this section does not confine its
provisions to clubs and associations,
but includes the receiving and selling
liquor in ''any other place."
The third and last ground, and the
main ground, is that the Dispensary
Act is unconstitutional, and the argu-
ment under this branch is concerned
chiefly with the purpose of the Act and
the question as 70 the police power Of
the State. .
There seems to be some confusion
regarding the distinction between the
Federal Constitution and the State
Constitution. They are essentially
Giferentin their nature. The Con-
stitution Of the United States confers
upon Congress certain well defined
powers, and such other powers only as
are necessarily Implied from such
grant, aud when an issue arises to
the unconstitutionality of an Act Of
Congress the question is, ''has the
power 10 legislate on the subject
mstter of the Act been granted to Con-
gress by the Federal Constitution ?"
On tbe other hand the Constitution Of
South Carolina bestows general legisla-
tive power upon the General Assembly
withvery few limitatio rs; and there
fore, upon an issue regarding the COP
stitutioDality of an Act Of the General
Assembly Of the State the question is,
has the power to legislate upon the
subject matter of this Act been with
held by the State Constitution ?''
On this point have here an excel
lent authority which shall read: 'sThe
people of a State, in creating by their
organic law legislative department of
government, confer upon it the whole
of Their inherently sovereign and un-
controlled power of legislation, except
10 so far as they have delegated this
power in respectto certain subjects and
under certain restrictions to the Con-
gresss of the United States, and except
also in so tar as they cotemporan neously
impose checks and limits upon the
legislative authority. Hence the Legis-
lature of State may enact any law
mot ingfringing upon the other depart
ments) of any character 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. 10 other words the
Constitutions are to be considered as
Limitations upon the legislative power
of the State, not as grants of power
($d Am and Eng Encyclopedias Law,
6S9.l
Ia note 2 to the above quotation
occurs the following: ''The distinction
between the United States Constitution
and the State Constitution is that the