The weekly Union times. [volume] (Union C.H., South Carolina) 1871-1894, 1893-11-17
JUDGE wALLACEs DIsPENsARY ACT
DECISION

UEClblON.
The FLOWING is the full text Of Judge
Wallace's decision in tho case Of the State
rs. John ODonncll, delivered at Anderson
last week:
The question as to the constituiionalty of
the Dispensary Act has been much discussed
in the State, and has developed consider able
diversity Of opinion in regard to ii. Some
able and learned lawyers hold one opinion,
and others equally as able and learned hold
adferent opinion. | have my own OF inion
which "ill proceed to announce without
hesitation or delay.
l. The motion was to quash the indict-
ment because, first. the Act provided no
punishment for selling liquor without
license. l may say, IN passing, that the
worjs "without license" contained in the
first count, are mere surplusage, and the
ofsnse charged is that Of selling liquor.
AT common law crimes are divided into
two casses, namely, mala IN Sc and n,aia
prohtJita. To illustrate, we have no statute
declaring mu, der 10 be a crime, or rape or
arson, or burglary. These crimes are de-
scrib"d and punishment provided for them.
They belong to the class described as mdla
an Sc. When the commission Of an act is
prohibited by statute, it telOngs to the class
of maia prOhiba0. The commission of an
Act prohibited hy stature is an offense be-
cause II IS Il viola ion OF law.
Tho offense charged is prohibited by The
DiSpcnsary Act, aud thus to sell liquor be-
comes violation of law, and is, therefore,
nm offense. No otfensc created by statute
is n felony unless it is 80 dec!aret. There
fore the selling Of liquor in violation of
Sect on q of the Dispensary Act is a mis-
demeanor. and ~ punishable, If not by any
penalty provided in said Act, then under the
provisions of tho statute, Sec'iou 2653,
Revised Statutes:
"Section 1868. In case of legal conviction,
where no punishment is provided by sta ute,
s the court shall award such sentence as is
-oorifor hsable to the common usage and prac-
Z tice in this Stale, according TO the nature of
the offense aud not repugnant to tho Const-
tuition"
nm, therefore, Of the opinion, and 50
hold, that the offense MS charged is punish
able under the section | have Just quoted.
2. The mex, ground was that Section 81
Of the Dispensary Act, under which the
indictment is framed, relates only to the
s"le or distribution If liquors kept by clubs
or associations for she use of the members.
The section referred to reads as follows !:
"Sec. 2l. Every person who shall di-
rectly indirectly, keep or maintain. by
himself, or by associating or combining with
othcrs, CT who shall in any manner aid,
assist or abet in keeping or maintaining any
club room or other pace in which any in
toXca,iug liquors are received or kept for
the purpose of barter or sale as n beverage,
or for distribution or division among the
members of any club or aSsoci ition, by any
means whatever, and every person who
shall barter, sell, or assist or abct another
in bsrtering or selling any intoxicating
liquors so received or kept, shall be deemed
gui ty Of o misdemeanor, ard upon c1nvic-
tion thereof be runishel by fue Of not
less than one hundred dollars nor more
than five hundred dol'ars, and by imprison
ment in the county Jail not less than ninety
days nor more than one year"
IL is clear that this section does not con-
fine its provisions 10 clubs and associations,
but includes the receiving and selling liquor
in ''any ether place"
3. The third aud last ground, and the
main ground. is that the Dispensary Act is
unconstitutional. And the argument 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 10 be some confusion regard
ing he important distinction between the
Federal Constitution and the State Constitu-
ton. They are essentially different in their
nature. The Constitution of the United
States confers upon Congress certain we'll
defined powers, and such other powers only
rs are necessarily implied from such grant
And when an issue arises as TO the uncon-
siituiionalityl Of an Act Of Congress, the
iz~k a&Inr-