Mississippi leader. (Jackson, Miss.) 1892-1895, 1894-05-01
The TiIlman Dispensary Law.

The Tillman Dispensary Law.
There will probably be considera-
BILE difference of opinion among law
yers as to the soundness of the decis-
ion reached by the majority of the SUI
preme Court of South Carolina hold
ing the Tillman dispensary law uncon-
stitutional. The act was defended as
an exercise of the police power of the
State. 1t was assaulted as violating the
provisions of the Constitution assur-
ing to every person the peaceful enjoy
ment of property and the right to ac-
quire it by any lawful occupation The
right of the State, however, to regu-
late, restrict or absolutely prohibit the
sale of Intoxicating liquors was freely
conceded by the court; and it was ad-
mitted that if this act could be con
sidered as coming within the proper
exercise of the police power, it would
be valid. The court held, however.
that it was not bound by outward
FORMS If law is enacted pretended
y
terest of the public morals, or the pub
lie health, the court has the right to
consider the substance and real intent
of the act, and decide that the police
power is invoked merely to cover an
invasion of constitutional rights. The
dispensary law did not proceed upon
the theory that the sale of liquor is in
herently and by its very nature injuri-
Gus to society, but made ample provis-
ion for the sale of it in any quantities
to all persons and for all purposes. 1t
only transferred from the citizen to the
government the right of sale. AS the
sale of whisky was not prohibited or
restricted by the act, the court reason
ed that the act could not, therefore, be
considered as police regulation in
tended to protect the public health or
the public morals, but was simply il
means of increasing the States reve
nue. by monopolizing the business of
selling Intoxicating liquors. 1t may be
claimed for the State. however, that
while the law did not proceed upon
eating liquors was in itself an evil, it
did discriminate between the pure and
the adulterated article. and one of the
objects of the law was to prevent the
sale and consumption of unwholesome
compounds This is certainly within
the police power of the State. The
court, however. holds that the right to
regulate or prohibit any traffic does
not imply the right of the State to ell
gage in trading enterprises, on the
broad ground that it is not compatible
ment was established. Although there
is no provision in the Constitution in
hibiting the exercise of such privilege,
the court holds that the powers of the
Legislature are limited not only by the
express limitations of the organic law,
but by the implied limitation that all
its acts must be consonant with and in
conformity to the general purpose for
which the. Constitution was framed
the establishment of civil government.
The purchase and sale of articles of
commerce for profit, the court holds
not to be a function of civil govern
ment, and any act which embarks the
State in such enterprise is therefore at
variance with the declared purpose of
which the Constitution was framed.
These, in brief, are the grounds upon
which the decision rests. There is a
vigorous dissenting opinion which
deals learnedly with the question of
police power, but it fails to break the
force of the reasoning by which the
majority arrives at its conclusion. At
the same time, it cannot be said that
the opinion of the court is sustained
10y all the authorities, or that it has
entirely removed every vestige of doubt
as to the constitutiOnality of the law.