The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1894-10-10
DISPENSARY WINS.
The Supreme Court EOlds the Law Com
stltutional-Judge Mclver Dissent-,
and Stands ~ He Did Before.

| The Supreme Court EOluS tue LIN" Soh
stltutional-Judge Mclver Dissentr,
and Stands ~ He Did Before.
Especial to Atlanta Constituti6n.]
COLUMBIA, S. G., October S.-For the
second time Governor Tillman's liquor
law came out Of the hands Of the Su
preme Court this evening, on this occa
Sion completely rehabilitated.
"The city council Of Aiken agains
Holly and George" was the title of the
case in which Justices Pope and Gary
Tillmanites, sustain the dispeDsary
reversing the decision pronounclng II
unconstitutional delivered by the court
last April, when Samue! MCGOWAN
anti-Tillmanite; was member. Mclver
adhering to his previous opinion, dis
sents now.
1t will be remem bered that the Apri
decision was upon an act passed III
1892. On August lst Gary, elected over
McGowan last December, succeeded
him and a week previous Governor
Tillman proclaimed in force the acl
of 1888, which he had suspended IL
April.
Since the proclamation the dispen'
ssries have been running on full time
and constables have been seizing con-
traband spirits. When the dispensary
at Aiken was reopened the city council
at once arrested George, the dispenser,
and Holly, member of the county
Board Of control, for violation Of a city
ordinance against the sale of liquor.
The State carried the case before
Circuit Judge Aldrich, who sustained
the city council, and then the State ap,
pealed to the Supreme Court. 4 Aspeclai
session of the latter was Immediately
convened.
WHAT JUSTICE GARY SAYS.
In deciding the law constitutional
Justice Gary says that the law is q
police measure and that the State,
under its police power can itself assume
entire control and management OF sub
iec.s that are dangerous to the peace,
good order, ETC., of the people,, even
when trade is one of the incidents OF
such control. and that liquor is such a
subject. He quotes authorities to show
that the saloon keeper does not sell IL
ouor by reason Of an inalienable right,
but because such power has been dele
gated to him by the government, and
reasons from this that it would be ap
anomaly in the law to hold that the
principal could delegate to an agent a
greater power than the principal him.
self could exerci:e. The justice holds
that 1.-The dispensary act itself is an
outgrowth of the dissatisfaction on the
part of the people with the manner IL
which the police power, when delegat'
ed was abused"
He holds that its primary object is
not the raising of revenue and that 1t IS
within the power of the board Of con,
troll to eliminate the profit feature alto
gether. Such question, however, be
declares, is not before the court.
As to the objection that the act ls re-
pugnant to the provisions of the consti.
tuition as to taxation, be says that could
only be sustained in case the object OF
the act is not the exercise of police
power. The justice says that the obJec'
| ton as to the constitutionallty OF the
act, on the ground that it creates a mo-
nopoly, is fully met by the decision in
| the slaughter house cases, wherein the
court declares that the legislature has
| the right to create corporation When
! a certain result can best be attained by
means thereof. He holds that the act
does not violate section /, article l, OF
the State Constitution, as it does not
deprive the respondent Of an "luallen'
able right" The justice says that the
objection to the law, is that it enbarks
the State in a commercial enterprise
does not hold good as long as the BUY
ing and selling are in pursuance OF po'
lice regulations.
Concerning the otjection that the law
violates section of the United States
Constitution, and also the Wilson bill
Justice Gary says:
1.-The intention of Congress was to
deprive liquor of its national character
as subject of commerce, make 1t Local
in its nature and subject it to the police
power of the State until Congress!
| should see fit to legislate upon 1t. i
was the intention of Congress to suoor
dinate the commercial power Of tht
national government to the police
power of the State on the subject of il
quor."
CHIEF JUSTICE MCIvER DIFFERS.
Chief Justice McIver on dissenting
declares that the dispensary act rest
upon the same principles as the old ac
which was declared unconstitutional
Also he referred to 1.-The we'll settled
and wholesome doctrine of stare decIsl
and the vii. of not adherlng to tn
former decision of the court. he dc
! ic ch
never can be-that trade is one OF tn
appropriate functions of civil govern
,uent, and statutes purporting to em
bark the State in any trading enter
prises is altogether beyond the com
petency of the legislature, because /
excludes the limitations upon the leg
islative power necessarily implied
from the express terms uset
in the constitution. The chief jus
tice declares it a very dangerou
doctrine, asserted in the former case
and again insisted in this case that to-
police power Of the State is limited onl.
by the will of the legislature"
He then takes up the argument
which, it will be remembered, wa
made from the bench last Monday b.
Circuit Judge Benet in this city in hi
charge to the jury, that the court
have no right to inquire whether act
of the legislature or police regulations
Il can't subscribe to any such doc
trine,n says the chief justice, "for
would subject the rights of the citizel
secured to him by constitutional pro
visions to the unrestrained will of tn
legislature, and would render absolute
ly useless all the safeguards provide'
in the constitution for the protection G
his rights against invasion by the law
abiding power of the government"