The county record. [volume] (Kingstree, S.C.) 1885-1975, 1897-04-15
10 show that it was kept for unlawful

is that he kept it believing that it was
necessary for his bodily health. Un.
less, therefore, the act contains some
provision making it unlawful to drink
or otherwise use for his own personal
benefit or qualification any spirituous
liquors not obtained from the dispen.
sary or not containing the stamps OF
the State commissioner it is obvious
that one essential element of the of
fense charged is lacking. The act will
be searched in vain for any such pro
vision, and hence it cannot be said
that keeping and using any spirituous
liquors for ones own personal use or
qualification constitutes any otfense
against the criminal laws of the State.
The 25th section is quoted and MIR.
Justice McIver holds that it does not
even purport to create any criminal
offense but deals only with the seizure
and forfeiture of contraband liquor.
Indeed the proviso recognizes the le.
gality of the possession of certain Ii.
quors which are not bought from the
dispensary.
The 26th section is next quoted,
which it is contended was not to cre-
ate any criminal offense, but to pre-.
vent the courts from entertaining any
action for the recovery of the price OF
any liquor so seized.
So much of the 35th section which is
pertinent is quoted. It is difficult to
see what light This section throws on
the subject. 1t certainly creates no
criminal offense except in the last par
agraph, which has nothing to do with
the case, in that it provides for q pun
ishment for imitation Of stamps.
He concluded by saying: "a very
careful consideration of this case in
all its aspects leads inevitably to the
conclusion that the grounds Of appeal
must be sustained" Finally, he says.
"Inasmuch as this opinion was origi-
nally prepared before the recent decls.
ion of the supreme court ofthe United
States in Donald VS.. Scott, 165 o. 8. {:
6S. was announced, desire to avail
myself of the opportunity now pre-
sented of adding that it seems to me
absolutely necessary to adopt the con-
clusion which have reached in order
to avoid q conflict with the decision OF
the supreme court of the United States.
which it must be conceded is final
arbiter of all questions involving q
construction of the Constitution OF
the United States"
JUSTICE GARY's VIEW.
Mr.. Justice Gary, in his opinion
concurring with the opinion OF the
chief justice, after reviewing the
facts of the case and quoting several
sections of the dispensary law spplica
BILE to the case says:
when these sections are construed
together they show first that the act
does not prohibit, but on che contrary
in express language, permits q person
to keep liquor in his possession for his
own use. Second, that in order to
throw the protection of the law around
the liquor in his possession for his use,
it is necessary to furnish an inventory
of the quantity and kinds to the State
commissioner and apply forcertidcate
to affix thereto.
"Third, that if the liquo- in his pos
session is seized because 1t has not the
necessary certificates and labels re-
quired by the act, and he claims the
liquor the burden of proof is upon him
to show that it is for his own use.
1.-The act contemplated that there
would necessarily be some time after
the liquor came into possession OF the
person for his own use before he could
apply to the State commissioner Tor
the necessary certificates and labels.
If it was seized because it did not have
the necessary certificates and labels,
he was even then 10 be deprived of the
liquor, provided he could show it was
for his own use; but in that case, the
burden of proof would be upon him to
show it was for such purpose. Any
Other construction of the act would
make person a violater OF the law
who simply received as present
bottle of liquor coming from another
State, although it might be his lnten-
ton forthwith to apply to the State
commissioner for the necessary certlh-
Gates and labels to affiX to it.
"a construction contrary to that
which we place upon the act would
even make . person q violater o! the
law who took drink of whiskey nu-
less it came from the dispensary,
I'VE cannot think this was the in
tention OF the legislature. For these
reasons we concur in the conclusion
announced by Mr.. Chief Justice Mel yer.
JUSTICE JONES' POSITION.
Justice Jones, in his decision sus.
tanning the lower court, contends that
the sole question for determination is
whether the dispensary act OF 1896
prohibits the storing or keeping of in
toxicating liquors without having on
the vessel the stamp of the State COM
missioner. ''The construction con-
tended for py the learned chief JUS
tice," he holds, "would practically
nullify the dispensary law, for it is not
possible to held that the keeping OF
Intoxicating liquors in possession
without permission of the stamp is not
punishable unless it was kept tor un-
lawful use, and not be compelled to
hold the same thing in reference to
the manufacture aud sale OF such Ii