McCullough v. Brown

23 L.R.A. 410, 19 S.E. 458, 41 S.C. 220, 1894 S.C. LEXIS 100

Opinions

The opinion of the court was delivered by

Mr. Chiee Justice MoIyer.

1 These cases all arise under an act, entitled “an act to prohibit the manufacture and sale of intoxicating liquors, as a beverage, within this State, except as herein provided,” approved 24th of December, 1892 (21 Stat., 62), and were, therefore, heard and will be considered together; for while there are certain subordinate questions presented in some of the cases which do not arise in others, yet they all present the question of the constitutionality of the act. To that question, as one of overshadowing importance, we propose first to direct our attention. Before doing so, however, it may be proper to state that, just before the commencement of the argument, the attorney general, deeming it due to the court so to do, presented a. suggestion in writing, calling the attention of the court to the fact that, at the recent session of the General Assembly (1893) another act on the same subject had been passed, which might possibly be regarded as repealing or superceding the act of 1892, under which these cases arise; and if so, might deprive the questions presented in these cases of any practical character, leaving them only as speculative questions, which the court might not be willing to hear. But as no motion to dismiss the appeals was made, and no application on the part of the counsel for the State to abandon the appeals upon any such grounds was presented, this court will not of its own motion decline to hear the cases; but, on the contrary, will assume, for the purpose of this discussion, that these cases are not in any way affected by the passage of the act of 1893, but do present practical questions which this court is bound to decide.

2 Becurring, then, to the question of the constitutionality of the act, it may be as well to say in the outset that we freely concede that the presumption is always in favor of the constitutionality of an act of the legislature; and hence, as is said by Shaw, O. Ji, In re Wellington, petitioner, 16 Pick, 95, referred to with approval by Judge Cooley in his great work on Constitutional Limitations, at page 182 of the second edition (which it may be as well to say here is the edition referred to throughout this opinion): “When courts are called upon to pronounce the invalidity of an act of legislature passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.” A. reasonable doubt must be solved iu favor of the legislative action, and the act be sustained. Or as was said by Marshall, O. J., in Fletcher v. Peck, 6 Cranch, 128, likewise quoted with approval by Judge Cooley in the same connection: “The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implications and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the j udge feels a clear and strong conviction of their incompatibility with each other.” These views have been fully recognized in this State, as is most fully, clearly, and forcibly set forth by Mr. Justice McGowan in Ex parte Lynch, 16 S. C., 32, and have been approved in many other cases.

We also freely concede that in considering the question whether an act of the General Assembly of this State is in conflict with the Constitution, either State or Federal, the inquiry is, whether there is anything in either of these instruments forbidding the passage of such an act, either in express terms or by necessary implications; whereas, in considering the question of the constitutionality of an act of Congress, the inquiry is, whether there is anything in the Federal Constitution which, either in express terms or by necessary implication, confers upon Congress the power to pass the act in question.

3 ¿Fully impressed with these conceded principles we approach the consideration of the question whether the act of the 24th oí December, 1892, which, for convenience, will be designated throughout this discussion as the Dispensary Act, is in conflict with any constitutional provision, either State or Federal. In considering this- question the first- inquiry which naturally presents itself is, what is the general nature, scope, and objects of the act, as disclosed by its terms'? Without going into a detailed consideration of the numerous sections of the act, we think it is safe to say that it is an act forbidding the manufacture or sale of intoxicating liquors as a beverage, within the limits of this State, by any private individual, and vesting the right to manufacture and sell such liquors in the State, exclusively, through certain designated officers and agents. (We may say here that in the further discussion of this subject we will drop the word “manufacture” and speak only of the sale, or keeping for sale, of intoxicating liquors as a beverage, not only for convenience of phraseology, but for the better reason, that in none of these cases which we are called upon to decide does the question of the manufacture of intoxicating liquors arise, but they all relate to the sale, or keeping for sale, of such liquors.)

It seems to ns that the view which we have presented as to the nature, scope, and object of the act is manifest, not only from the title of the act, but also from the provisions found in almost every section. The title declares it to be an act to prohibit the sale of intoxicating liquors, “except as herein provided,” and the various sections show, beyond dispute, that the only exception made is the State, which is expressly authorized to engage in the sale of intoxicating liquor for any purpose whatever, either as a beverage or otherwise. Indeed, the body of the act goes further than the title; for, while the language used in the title seems to indicate that the purpose of the act was only to forbid the sale of intoxicating liquors “as a beverage,” yet in the body of the act it is very manifest that a sale of such liquors for any purpose, and not simply “as a beverage,” is forbidden, except when made by the State through certain designated officers and agents. Licensed druggists must buy such intoxicating liquors as may be necessary in compounding their medicines and tinctures only from the designated agents of the State. Even wine for sacramental purposes can only be bought from such agents.

In other words, the manifest object of the act is, that the State shall monopolize-the entire traffic in intoxicating liquors, to the entire exclusion of all persons whomsoever; and this, too, for the purpose of profit to the State and its governmental agencies, counties, and municipal corporations; for the act, after appropriating the sum of $50,000 from the state treasury for the purpose of purchasing a supply of liquors with which to begin the business, provides that the liquors so purchased by the state commissioner shall be sold by him to the various county dispensers, at a profit not exceeding fifty per centum of the net cost thereof, and that the proceeds of such sales shall be paid into the state treasury, upon which the commissioner may draw from time to time, the amounts necessary to meet the expenses incurred in conducting the business; and also provides that the county dispensers may sell such liquors to consumers ata profit not exceeding fifty per centum above the cost thereof, except in, sales to licensed druggists, where the profit is limited to ten per centum, and that all profits, after paying the expenses of such dispensary, shall be divided equally between the county aud the municipal corporation within which such dispensary is located. It is also provided that the state commissioner may sell intoxicating liquors so purchased by him, to persons outside of the State.

4 ¿^This beiug the nature, scope, and object of the Dispensary Act, our next inquiry is, whether it conflicts with any provision of our State Constitution? There are at least two of the provisions of that instrument with which the Dispensary Act conflicts. The first section of the first article of the Constitution reads as follows: “All men are born free and equal, endowed by their Creator with certain inalienable rights, among which are-the rights of enjoying aud defending their lives aud liberties, of acquiring, possessing, aud protecting property, and of seeking and obtaining their safety and happiness.” And in section fourteen of the same article, it is explicitly declared that: “No person shall be * * * despoiled or dispossessed of his property, immunities, or privileges * * * or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land.” Here, then, we have not only an explicit declaration that every person in this commonwealth has certain rights derived — not from the government— but from the Creator, which are declared to be inalienable, but also an express declaration that he shall not be deprived of them except in one of two ways — first, by the judgment of his peers, or, second, by the law of the land. So sacred was this right of property regarded that the framers of the Constitution, not content with the general - provisions above referred to, declaring the right and forbidding any interference with such right, proceeded, in the twelfth section of the first article, to declare explicitly that, “No person shall be * * * prevented from acquiring, holding, and transmitting property.”

Now, then, what are these inalienable rights of personal liberty and private property thus emphatically asserted and carefully guarded, and what do they necessarily involve? As it is said by Earl, J., in In re Jacobs, 98 N. Y., 98, reported, also, in 50 Am. Rep., 636: “The constitutional guaranty, that no person shall be deprived of his property without due process of law, may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated; it is owned and kept for some useful purpose, and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes, without which such property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property. The constitutional guaranty would be of little worth if the legislature could, without compensation, destroy property or. its value, deprive the owner of its use, deny him the right to live in his own house, or to work at any lawful trade therein.” Blackstone, in 1 Comm., 138, says: “The third absolute right inherent in every Englishman is that of property; which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land.” To same effect, see what is said by Miller, J., in Pumpelly v. Green Bay Co., 13 Wall, at pp. 177-8; also, whafc is said by Comstock, J., in Wynehamer v. People, 13 N. Y., 398, and, also, by Andrews, C. J., in People v. Otis, 90 N. Y., 48. See, also, what is said by the .same judge in Bertholf v. O’Reilly, 30 Am. Rep., at p. 328 (74 N. Y., 509).

Again, it is said in the case of In re Jacobs, supra: “So, too, one may be deprived of his liberty, and his constitutional rights thereto violated, without the actual imprisonment or restraint of his person. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where be will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation.” See, also, to the same effect, what is said by Mr. Justice Field in his concurring opinion of Butchers’ Union Co. v. Crescent City Co., 111 U. S., at pp. 756-7, aud what is said by Mr. Justice Bradley in his concurring opinion in the same case, in which he was joined by Mr. Justice Harlan and Mr. Justice Woods, p. 764, aud as was said in Livestock etc. Association v. Crescent City etc., 1 Abb. (U. S.), 388, 398: “There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.”

If, then, it can be shown that the traffic in intoxicating liquors is not in itself unlawful, but, on the contrary, that intoxicatiug liquor is a lawful subject of commerce, then it follows, from what has been said, that, the Dispensary Act, in so far as it undertakes to forbid every person in this State from engaging in such traffic, conflicts with the above mentioned constitutional provisions, and is, therefore, null and void, unless such legislation can be defended as an exercise of what is kuown as the police power — a question which will be hereinafter considered. We do not see how it can be denied that such a traffic is lawful. Judge Cooley, in his work on Cons. Lim., at pp. 583-4, says in express terms that it is lawful, and every one of the numerous cases decided by the Supreme Court of the United States, involving questions whether State legislation, designed to prohibit the sale of intoxicating liquors, are affected by the interstate commerce clause of the Constitution of the United States, necessarily imply that intoxicating liquor is a subject of lawful commerce. For, otherwise, such questions could not arise. It was only upon this ground that the decision in the case of Leisy v. Hardin, 135 U. S., 100, was, or could be, defended. There the question was whether such liquors imported into the State of Iowa from the State of Illinois could be lawfully sold in the unbroken packages in which they were imported within the limits of the State of Iowa, and the court held, that notwithstanding the stringent provisions of the Iowa prohibitory law, such liquors could be sold by the importer as long as the original package remained in his hands unbroken; and that the Iowa statute, in so far as it purported to forbid such a sale, was in conflict with that clause of the U. S. Constitution conferring upon Congress the power to regulate commerce with foreign States and between the several States.

In that case Fuller, C. J., in delivering the opinion of the court, cites with approval certain language used by Mr. Justice Matthews, in delivering the opinion of the court in the case of Bowman v. Chicago &c. Railway Company, 125 U. S., 465, involving the same principle, where hedraws a distinction between articles not in a merchantable condition, and, therefore, not legitimate subjects of commerce — for example, rags likely to spread infectious diseases, and other articles which are legitimate subjects of commerce, amongst which intoxicating liquors must have been classed, or the decision could not possibly have' been what it was. Even in the case of In re Rahrer, 140 U. S., at p. 556, Fuller, O. J.,-recognizes the same doctrine, although that case arose after the passage of what is commonly known as the “Wilson bill,” which was doubtless passed with a view to obviate the effect of the decision in Leisy v. Hardin, supra.

Indeed, the whole course of legislation, both State and Federal, demonstrates that the sale of intoxicating liquors is a legitimate subject of commerce and trade, for otherwise it would be absolutely impossible to vindicate the United States Internal Revenue law, and the very numerous statutes which have been passed in this State ever since the foundation of the government, permitting the sale of intoxicating liquors, under such regula tions as the law-making power may have from time to time deemed necessary, either to secure a revenue from such traffic or to surround it with such restrictions as have been thought necessary or expedient to prevent evils apt to grow out of such traffic. To say, therefore, that th'e sale of intoxicating liquors belongs to that class of wrongs denominated as mala in se, would be to cast a grave imputation upon the law-making department of the government, both State and Federal, and this we are very'far from being willing to do. Indeed, the very highest of all authority might be cited to show that the manufacture and sale of spirituous liquors is not malum in se. Indeed, the most ardent prohibitionists, so far as their wishes have taken the shape of law, must be regarded as admitting the proposition for which we contend; for every prohibition law which has fallen under our notice contains provisions recognizing this proposition by excepting from its operation sales of liquors for certain purposes, viz: medical, scientific, mechanical or sacramental purposes, thereby expressly admitting that the mere sale of intoxicating liquors is not only not wrong, but actually necessarily or useful for certain purposes. The very act now under consideration — the dispensary law — -by its express terms, shows, beyond all dispute, that the General Assembly did not intend to'put its seal of condemnation upon the sale of intoxicating liquors, as morally wrong, or even as subversive of the public welfare, for it makes ample provisions for the sale of such liquors to an unlimited extent for any purpose whatsoever, and makes specific provision for the sale of liquor in just such quantities as would suit all classes of consumers.

Before, therefore, the sale of intoxicating liquors can be declared unlawful, there must be some valid statute declaring it to be so; and, we must say, that we have been unable to find any such statute on the statute books of this State. Of course, we can find many statutes forbidding such sale except upon cei'tain prescribed conditions, but none’ making the sale absolutely unlawful, unless it be in certain specified localities, under what are called “local option laws,” which are exceptional in their character, and need not be considered here. While, therefore, without permitting ourselves to indulge in any sentimental declamation as to the evils flowing from an unregulated and unrestricted traffic in intoxicating liquors, which, however appropriate elsewhere, we do not regard as becoming in a judicial opinion, we freely admit all that can properly be said on the subject, and, therefore, we fully concede the power on the part of the legislature to throw around such traffic all safeguards necessary and proper to prevent, or at least minimize, such evils; and while we may further admit, for the purposes of this discussion, that the legislature may go further, and absolutely prohibit the sale of intoxicating liquors within the limits of this State, yet the practical question still remains, whether the Dispensary Act falls within either of these classes.

5 It does not seem to us possible to regard the Dispensary Act as a law prohibiting the sale of intoxicating liquors. On the contrary, it not only permits but absolutely encourages such sale to an unlimited extent; for by its profit features it holds out an inducement to every taxpayer to encourage as large sales as possible, and thereby lessen the burden of taxation to the extent of the profits realized. If the act, instead of confining the privilege of selling liquor to the State, had undertaken to confer such exclusive privilege upon one or more individuals, or upon a particular corporation, could there be any doubt that such an exercise of legislative power would be unconstitutional? We can see no difference in principle between the two cases. Even the Slaughter House Cases, as they are called (16 Wall, 36), decided by a bare majority of the court, and which must be regarded as having gone to the extreme limit, did not go to the extent of holding that an act forbidding all other persons except the favored corporation from pursuing the lawful occupation of a butcher, or from carrying on any other lawful business or trade, would be constitutional, for the opinion of the majority of the court was rested expressly upon the ground that the act there in question did not forbid any person who might desire to do so from pursuing the avocation of a butcher, but only required him, as a measure of police regulation, to have his slaughtering done at a specified place, upon paying reasonable charges prescribed by the act to the corporation for the use of the conveniences for that purpose, which said corporation was bound under a heavy penalty to furnish any one who desired to use them. It is very obvious, therefore, that the act there under consideration differed very widely from the act which we are now called upon to consider.

6 If, then, the Dispensary Act cannot be defended as a prohibitory law, it is contended that it may be sustained as a law regulating the sale of intoxicating liquors under which is called the police power, which, it is claimed, practically is unlimited in its scope by constitutional provisions, and its exercise depends solely upon the legislative will, which cannot be controlled or restricted by the judiciary. It seems to us that such a claim is not only utterly at variance with any just conception.of a constitutional government, but is entirely inconsistent with the numerous cases in which the courts, both State and Federal, have undertaken to limit and restrict the exercise of such a power by State legislation; and, what is more to the point in this particular case, our own court has distinctly repudiated the idea that the exercise of what is claimed to be the police power is beyond judicial control. In the case of McCandless v. Richmond & Danville R. R. Company, 38 S. C., 103, Mr. Justice Pope, as the organ of the court, after referring to the fact that the Circuit Judge had held that the statute there in question was a valid exercise of the police power, uses this language: “But a careful consideration of the latest official declaration of this law by the Supreme Court of the United States has led us to modify our conceptions of what is involved in what is called the police power of a State in this Union of States. The fundamental idea in ascribing such potency to this principle of the law is based upon the immutable principle of self-defence.” And upon this point of the case the court was unanimous, though there was a dissent upon another point.

Indeed, to hold that every act of the General Assembly passed under the guise of an exercise of the police power, or sought to be defended upon that ground, is beyond judicial control, would render every guaranty of personal right found in the Constitution of little or no value. See, also, what is said by Mr. Justice Harlan, in the case of Mugler v. Kansas, 123 U. S., at p. 661, where, after recognizing the existence of, and the necessity for, the police power1, and after admitting that such power belongs to the legislative department of the government, uses this language: “It belongs to that department to exert what are known as the police powers of the State, and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are of necessity limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute (Sinking Fund Cases, 99 U. S., 700), the courts must obey the Constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. £To what purpose,’ it was said in Marbury v. Madison, 1 Cranch, 137, ‘are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?’ * * * The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at libeHy — indeed, are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the legislature had transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to p?-otect the public health, the public morals or the public safety has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” (Italics ours.) See, also, what was said by our own court in the case of Whaley v. Gaillard, 21 S. C., at p. 578, where the same principle was applied to a totally different subject — the limitation of the power of the legislature to contract a public debt.

7 It seems to us, therefore, that it is not only our right, but our duty, to inquire whether the'Dispensary Act was intended to be an exercise of the police power to regulate the sale of intoxicating liquors, and if so, whether its terms have any real or substantial relation to that object. Now it is quite certain that the act does nffi, in terms, purport to be an act to regulate the sale of. intoxicating liquors by persons who may be engaged, or who may desire to engage, in such traffic. On the contrary, its declared purpose is to absolutely pi’ohibit such sale by private individuals, and this is made more manifest by the numerous provisions found in the body of the act. Now, while the power of the legislature to enact such laws as may be deemed necessary and proper to regulate the sale of intoxicating liquors by any person within the limits of the State, in order to prevent or, at least, reduce, as far as possible, the evils which are apt to flow from such a traffic, is conceded, yet we can not regard the dispensary law as such an act. Indeed, it must be a contradiction in terms to speak of an act of such a character as this is, as an act to regulate the sale of liquor by the people of the State; for it is difficult to see how an act forbidding a sale can be regarded as an act regulating-such sale. That which is forbidden cannot well be regulated.

But it may be said that the Dispensary Act, while forbidding all private persons to sell intoxicating liquors, does permit such sale to be made by the State itself, through its authorized officers and agents, and that these sales may be and are regulated by the numerous provisions of the Dispensary Act. But when it is remembered that all restrictions upon, or regulations of, sales of any lawful article of commerce can be vindicated only as an exercise of the police power, we do not see how such a view can be accepted. The police power, however, can only be resorted to for the government and control of the people of the State, and cannot, with any propriety, be appealed to for the purpose of controling the action of the State itself; and, as the State can only act through its authorized officers or agents, the police power cannot be resorted to for the purpose of controling such officers and agents, if for no other reason, because it is wholly unnecessary, as the State has ample means of controling its own officials without resorting to the undefined and, therefore, dangerous power, known as the police power.

But even if this view be not sound, and this provision of the Dispensary Act, whereby the State assumes to itself the exclusive right to engage in the sale of intoxicating liquors, taking to itself aud its subordinate governmental agencies the entire profits of such a traffic, to the utter exclusion of all private individuals, could, with any propriety, be regarded as a police regulation for the protection of the public health or public morals, there would still remain the question, whether such an exercise of the police power was necessary to effect these important purposes; for after all the exertion of the police power, especially where it abridges or destroys the constitutional rights of the citizen, can only be vindicated as a measure of self-defence, as it is expressed by Mr. Justice Pope, supra, or, as is expressed by other authorities, by some overruling necessity. If the various restrictions and regulations as to the sale of intoxicating liquors by the officers and agents of the State be designed only for the protection of the public health or the public morals, and are fit and appropriate to that end, we do not see why such restrictions and regulations could not be applied to the sale of such intoxicating liquors by private individuals; and if so, then certainly there was no necessity for any such sweeping act, whereby the constitutional rights of the citizen, hereinbefore referred to, have been absolutely destroyed, but these rights would be reserved to the citizen, and only restricted by such regulations as may be necessary for the public good.

5 But in addition to this, we are compelled to say, without in the slightest degree intending to impeach the motives or to criticise the intentions of the members of the legislature, by which this act was passed, and, on the contrary, freely according to them the best motives and the purest intentions, that judging the act from the terms employed in it (the only way in which a court is at liberty to form an opinion), it cannot be justly regarded as a police regulation, but simply as an act to increase the revenue of the State and its subordinate governmental agencies. This is apparent from the profit features of the act, from the various stringent provisions designed to compel consumers of intoxicating liquors to obtain them only from the officers and agents of the State, and notably by the provision authorizing the State commissioner to sell such liquors to persons outside of the limits of the State, which certainly cannot be regarded as bearing the faintest resemblance to a police regulation for the purpose of protecting the public health or the public morals of the people of this State.

8 But it is earnestly contended by the attorney general, that if the power to prohibit absolutely the sale of intoxicating liquors be conceded, it follows, necessarily,, that the State may assume the monopoly of such a trade, and in support of this view he cites Tiedeman on the Limitations of the Police Power, 318, where that author uses the following language: “There is no doubt that a trade or occupation which is inherently and necessarily injurious to society may be prohibited altogether; and it does not seem to be questioned that the prosecution of such a business may be assumed by the government and managed by it as a monopoly.” But the only authority which the author cites to sustain this rather extraordinary proposition is the case of State v. Brennan’s Liquors, 25 Conn., 278, overlooking entirely the case of Beebe v. State, 6 Ind., 501, which holds an opposite view, and which had been previously cited by the same author at p. 197, and quoted from apparently with approval. But in addition to this, we are unable to perceive how the right to prohibit a given traffic carries with it the power in the State to assume the monopoly of such traffic. If the right to prohibit the sale of intoxicating liquors rests upon the ground that such a traffic “is inherently and necessarily injurious to society,” as is involved in the statement by the author of his proposition, then it seems to us that the logical and necessary consequence would be, that the State could not engage in such traffic, for otherwise we should be compelled to admit the absurd proposition that a State government, established for the very purpose of protecting society, could lawfully engage in a business which “is inherently and necessarily injurious to society.” We must prefer, then, to follow the case of Beebe v. State rather than State v. Brennan’s Liquors; for while it has been said that the case of Beebe v. State has been overruled (though the case to that effect has not been brought to our attention), yet we do not cite the case as authority, for it is not authority here, but it is only referred to for the reasoning contained in the opinion. Indeed, neither the Indiana nor the Connecticut case could constitute authority in this case, for the reason that the statute which we are called upon to construe contains very different provisions from those found either in the Indiana or Connecticut statutes.

But in this connection we are enabled to cite a very recent case which the research of counsel for respondents has furnished us with, which, it seems to us, is as conclusive of this whole matter as any case from abroad can be. That is the case of Rippe v. Becker, 57 N. W. Rep., 331, in which one of the points distinctly decided is thus stated in the syllabus prepared by the court: “The police power of the State to regulate a business is to be exercised by the adoption of rules and regulations as to the manner in which it shall be conducted by others, and not by itself engaging in it.” In that ease the question was as to the constitutionality of an act entitled “An act to provide for the purchase of a site, and for the erection of a State elevator or warehouse at Duluth for public storage of grain,” and one of the grounds upon which it was sought to sustain the constitutionality of the act was that it was an exercise of the police power. But the court held, that while “the right of the State, in the exercise of its police power, to regulate the business of receiving, weighing, inspecting, and storing grain in elevators and warehouses as being a business affected with a public interest, is now settled beyond all controversy” by the case of Munn v. Illinois, 94 U. S., 113, and others on the same line, yet that the act there in question could not be regarded as a police regulation of the business, and that the police power of the State to regulate a business does not include the power to engage in carrying it on. It would extend this opinion to an unwarrantable length to make further quotations from the opinion of the court in that case, which might be instructive and profitable.

5 It seems to us, therefore, that in no view of the case can the Dispensary Act be regarded as a police regulation of the business of selling intoxicating liquors, and even if it could be, that such police power does uot include the power on the part of the State to engage in carrying on such business.

9 Finally, the constitutionality of the Dispensary Act is assailed upon the ground that the legislature have undertaken thereby to embark the State in a trading enterprise, which they have no constitutional authority to do — not because there is any express prohibition to that effect in the Constitution, but because it is utterly at variance with the very idea of civil government, the establishment of which was'the expressly declared purpose for which the people adopted their Constitution; and, therefore, all the powers conferred by that instrument upon the various departments of the government must necessarily be regarded as limited by that declared purpose. Hence, when, by the first section of the second article of the Constitution, the legislative power was conferred upon the General Assembly, the language there used cannot be construed as conferring upon the General Assembly the unlimited power of legislating upon any subject, or for any purpose, according to its unrestricted will, but must be construed as limited to such legislation as may be necessary or appropriate to the real and only purpose for which the Constitution was adopted, to wit: the formation of a civil government. In this connection, it is noticeable that the word “all" is not used in the section above referred to, but the language used is, £‘the legislative power,” meaning such legislative power as may be necessary or appropriate to the declared purpose of the people iu framing their Constitution and conferring their powers upon the various departments constituted for the sole purpose of carrying into effect their declared purpose.

It is manifest from the numerous expressed restrictions upon the legislative will found in the Constitution that the people were not willing to entrust even their own representatives with unlimited legislative power; but, as if not satisfied with these numerous express restrictions, and perhaps fearing that some important right might have been overlooked, a general clause, not usually found in State Constitutions, was inserted, apparently designed to cover any such omissions; for in section 41 of article 1 it is expressly declared that “the enumeration of rights in this Constitution shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people.” Now, upon well settled principles of constitutional construction, we are not at liberty to disregard this clause, but must give it some meaning and effect. It seems to us that the true construction of this clause is that while there are many rights which are expressly reserved to the people, with which the legislature are forbidden to interfere, there are other rights reserved to the people, not expressly but by necessary implication, which are beyond the reach of the legislative power, unless such power has been expressly delegated to the legislative department of the government. These views have not only the support of the highest authority in this country, as may be seen by reference to the cases of Loan Association v. Topeka, 20 Wall, 655, and Parkersburg v. Brown, 106 U. S., 487, but have been distinctly adopted by the Supreme Court of the State in Feldman v. City Council, 23 S. C., 57, as well as by the courts of Massachusetts and Maine, as may be seen by reference to Allen v. Joy (60 Me., 124, 11 Am. Rep., 185), and Lowell v. City of Boston (111 Mass., 454, 15 Am. Rep., 45); and what is more, they were applied to the vital power of taxation — a power absolutely essential to the very existence of every government. These cases substantially hold that, although there may be no express restriction contained in a State Constitution forbidding the imposition of taxes for any other purpose than a public purpose, yet such a restriction must necessarily be implied from the very nature of civil government, and hence the legislative department under the general power of taxation conferred upon it cannot impose any tax except for some public purpose.

Upon the same principle it seems to us clear that any act of the legislature which is designed to or has the effect of embarking the State iu any trade which iuvolves the purchase and sale of any article of commerce for profit, is outside and altogether beyond the legislativ.<%'ewer conferred upon the General Assembly by the Constitution, even though there may be no express provision in the Constitution forbidding such an exer cise of legislative power. Trade is not and cannot properly be regarded as one of the functions of government. On the contrary, its function is to protect the citizen in the exercise of any lawful employment, the right to which is guaranteed to the citizen by the terms of the Constitution, and certainly has never been delegated to any department of the government.

We do not deem it necessary to go into any extended consideration of the fearful consequences of recognizing the power of the legislature to embark the State in any trade arising from the hazards of all business of that character, or to comment upon the danger to the people of the monopoly of any trade by the State; for if it can monopolize one, it may monopolize any or all other trades or employments, although it is permissible for a court when called upon to construe an act, to consider its effects and consequences. For it may be said — indeed, has been said- — that the good sense and patriotism of the members of the General Assembly may be safely relied upon to protect the people from such apprehended dangers. But that great luminary of the law, Chief Justice Marshall, did not seem to think that this was a sufficient protection, as may be seen by what he said in McCulloch v. Maryland, 4 Wheat., 316, and in Brown v. Maryland, 12 Wheat., 419. Nor did the Supreme Court of the United States in later days seem to think that this confidence in the good sense and patriotism of the legislative department was a sufficient safeguard against the exercise of a power which might become dangerous; for while, on the one hand, in the case of Dobbins v. Commissioners of Erie County, 16 Peters, 435, it was held that a State cannot tax the salary of a United States officer, on the other hand, in the case of Collector v. Day, 11 Wall, 113, it was held that the United States could not tax the salary of a State officer; although in the case last cited, in his dissenting opinion, Mr. Justice Bradley took the ground that such confidence would be a sufficient safeguard against a dangerous exercise of the taxing power.

These two cases were decided upon the principle that, inasmuch as “the power to tax involved the power to destroy,” as had beeu said by Marshall, O. J., in McCulloch v. Maryland, supra, the only adequate protection was to deny the power of the State government to tax the means and instrumentalities employed by the United States government to carry into operation the powers granted to it; and for a like reason the power of the United States government is denied to tax the means and instrumentalities employed by the State government to carry into effect its powers, although both of these governments were established for the protection and preservation of the rights of the same people; and this was held, although there is no express provision in either of the Constitutions of these two governments forbidding the imposition of such a tax. For, as was said by Mr. Justice Nelson, in delivering the opinion of the court in the case last cited, “It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation.”

10 It is urged, however, that in the past the State engaged in the business of banking, and in the establishment of a State college, and these furnish a precedent for the State engaging in any other business which may be deemed by the legislative department of the government conducive to the public welfare. In the first place, these institutions were established under the Constitution of 1790, which contain no such provision as that found in the forty-first section of the first article of the Constitution of 1868. In the second place, we are not informed of any instance in which the constitutionality of the acts establishing either of those institutions was ever brought to the test of judicial decision, and, therefore, they can form no precedent for our guidance in this case. In the third place, the establishment of a bank may be, and has been, most ably defended upon the ground that such an institution is necessary to the proper control and management of the fiscal affairs of the government, and is, therefore, a proper governmental instrumentality; though we must not be understood as endorsing the proposition thus ably defended, for that question is not now before us, and we do not propose now to intimate any opinion upon the subject. As to the college, we do not regard that institution, in any proper sense of the term, as a business, certainly not as a trade, and bears no analogy whatever to the business of buyiug and selling intoxicating liquors, or any other article of commerce. And as to the business of school teaching, if such an occupation can be characterized as a business, in the sense in which that term is used in this opinion, the very fact that the framers of the present Constitution saw fit to incorporate in the present Constitution an express mandate, requiring the establishment of public schools, is not only destructive of any argument drawn from analogy as to the power of the State to engage in any business, but also warrants the inference that without such express mandate the State would not have the power to engage in such so-called business.

11 Finally, it seems to us that the question as to the right of the State to engage in any trade or business for the purpose of gain has been practically determined adversely to such right in the recent case of Mauldin v. Greenville, 33 S. C., 1. There one of the questions raised was as to the power of the city council to purchase and hold an electric light plant for the purpose of lighting the streets and public buildings and offices of the city, and also for the purpose of furnishing lights to the people at proper charges therefor. The court held, that while the city council was invested with power to provide for lighting the streets and public buildings in che mode proposed, yet they had no power to engage in the business of furnishing lights to private individuals in their residences or places of business, for the reason, as it was pointedly expressed by Mr. Justice McGowan in delivering the opinion of the court: “As we understand it, all the powers given to the city council were for the sole and exclusive purpose of government, and not to enter into private business of auy kind outside of the scope of the city government.” And this was said, although the charter of the city — its constitution, so to speak — conferred upon the city council the broadest and most extensive powers for the good government of the city. So here we may say that the legislative power conferred upon the General Assembly by the Constitution of the State was given to them “for the sole and exclusive purpose of government, and not to enter into private business of any kind outside of the scope of the (State) government.”

Although the counsel for appellant very properly did not rely upon the case of the State ex rel. Hoover v. Town Council of Chester, 39 S. C., 307, as any authority whatever upon the questions presented iu the present case, yet it may not be amiss for us to say that the questions here presented were not there decided or considered, for the very obvious reason that they were not necessary to the decision of that case, and, therefore, [fell] under the well settled rule (Cooley on Cons. Lim., 163), that a court will not, and ought not to, pass upon a constitutional question, and declare a statute to be invalid unless a decision upon that very point becomes necessary to the determination of the cause. Hence, in the Chester case, the court did not feel at liberty to consider the general question of the constitutionality of the Dispensary Act, and, on the contrary, carefully guarded against even any intimation of opinion as to the general question. Now, however, the question is squarely presented, and has been most fully and ably argued on both sides, and we are compelled to meet it. After the fullest and most careful and deliberate consideration, we feel constrained to say that the act is clearly unconstitutional, except in so far as it forbids the granting of licenses to retail spirituous liquors beyond the 30th of June, 1893. Under this view, all subordinate questions presented in all the cases, except the first named, lose all practical importance, and need not, therefore, be considered.

12 In the case first mentioned in the title of this opinion, however, there are other questions presented, some of which it is necessary to decide, although the necessity for the consideration of others is superseded by the conclusion which we have reached on the main question of the constitm tionality of the Dispensary Act. It may be stated in general terms, that this was an action instituted by certain taxpayers of the county of Darlington, in behalf of themselves and other taxpayers of said county, who are too numerous to be made parties, for the purpose of enjoining and restraining the defendants from establishing a dispensary in the town of Darlington upon several grounds, mainly upon the ground that the act providing for such establishment is unconstitutional, null and void. It will be well, however, for a full understanding of this branch of the case that the pleadings in the case, without the accompanying affidavits, should be incorporated in the report of the case. Without considering at any length this question of mere procedure, it seems to us that the remedy by injunction is appropriate in the case as presented by the pleadings. The real object of the action is to prevent certain persons from engaging in a business involving the use of public funds derived from taxation under an act of the legislature claimed to be unconstitutional; and we think the authorities cited by the counsel of record for the plaintiffs, especially Cooley on Taxation, 764, and 1 Pom. on Eq. Jur., 277, together with our own case of Mauldin v. Greenville, supra, are amply sufficient to sustain the view taken by the Circuit' Judge. All the other exceptions in this case present questions which, in our judgment, it becomes unnecessary to consider under the view which we have taken as to the unconstitutionality of the act.

The judgment of this court is, that the judgments and orders appealed from in each of the cases mentioned in the title be affirmed.