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Argument for Plaintiff's in Error.

tively. Writs of error from this court were then sued out and allowed.

Mr. William A. Barber, Attorney General of the State of South Carolina, for plaintiffs in error.

I. The plaintiffs in error, as state constables, were authorized by the act generally known as the dispensary law to seize the liquors seized. See sections 43, 32, 29, 33, 1 and 25.

II. The dispensary act of South Carolina is the lawful exercise of the police power of the State and is not in conflict with Article 9 of the Constitution of the United States in so far as it prohibits citizens of the State from importing within the State alcoholic liquors for their own use and consumption. The sole question is whether so much of the dispensary law of South Carolina as prohibits the importation of alcoholic liquors from other States for personal use was enacted in the legitimate exercise of the police power of the State; and, if so, it is above the Constitution and acts of Congress, and no Federal question is presented.

This leads to the inquiry, What is the police power of a State?

This honorable court has said that the police power cannot be accurately defined; and, without attempting a definition, I would say it is that great attribute of sovereignty by which a State is justified in its self-protection and self-preservation; and it implies the use of the necessary means for the protection of the correlative and reciprocal rights of the sovereign and the citizen. The present measure of the power of a sovereign State is the full measure of its rights before it joined the federation, except in so far as the provisions of the Fed. eral Constitution or its own people have modified it. We know that the State gave up to the Union the right to regulate commerce, tax imports, declare war, proclaim peace, emit bills of credit, coin money and operate the post office. But it gave up no right based upon those fundamental principles not laid down in the Federal Constitution, and which are necessary to the protection of itself, necessary to the safety, com

Argument for Plaintiffs in Error.

fort and well-being of society, and necessary to the protection of its citizens against the evils of intemperance, pauperism and crime. The police power is among the reserved powers of the State.

For the views of this court see New York v. Miln, 11 Pet. 102; Barbier v. Connolly, 113 U. S. 27; Stone v. Mississippi, 108 U. S. 814; In re Rahrer, 140 U. S. 545; Crowley v. Christensen, 137 U. S. 86; Slaughter Ilouse cases, 16 Wall. 36; Bartemeyer v. lowa, 18 Wall. 129; Foster v. Kansas, 112 U. S. 201. In view of the principles laid down in these cases, there can be no doubt that the dispensary act is a police measure. In Bartemeyer v. Iowa it was held that a state law prohibiting the manufacture and sale of intoxicating liquors was not repugnant to the Constitution. In Foster v. Kansas, this doctrine was repeated.

In 1887, in the case of Bowman v. Chicago & Northwestern Railway, 125 U. S. 465, it was held that a law of Iowa forbidding the bringing into the State from other States of intoxicating liquors without a certificate, as therein required, was a regulation of commerce among the States, and was void as being repugnant to the Constitution, such statute not being an inspection law, or a quarantine law, or a sanitary measure, and therefore not a legitimate exercise of the police power of the State.

Then came the decision of Leisy v. Hardin, 135 U. S. 100, in which it was held that a party had the right under the Interstate Commerce Acts to import intoxicating liquor into the State, and the importer bad the right to sell the imported liquor in the State so long as it remained in the original package.

This case induced the passage of the act of 1890.

In In re Rahrer, the constitutionality of that act was assailed, but it was sustained by the court.

That act is the controlling act now, and by it Congress has provided that upon the arrival of liquors within the State, they become subject to the police power of the State, to the same extent and in the same manner as though such liquors had been produced by the State.

Argument for Plaintiffs in Error.

While this act did not add to the police power of the State, it did give expression to the will of Congress that a State could control intoxicating liquors as articles of commerce upon their arrival in the State, no matter where manufactured or from where imported, and Congress thus relinquished any power as to this article, which had been conferred by the Constitution of the United States, upon its arrival in such State.

But it is contended in this case that the dispensary law is in contravention of the Interstate Commerce Acts, because it discriminates against products of other States and against citizens of other States:

1. In that it allows dispensaries to sell intoxicating liquor, while citizens from other States are not allowed to send it into the State for sale :

2. In that it discriminates against intoxicating liquors, the product of other States, by prohibiting their introduction into the State for sale or use.

The act does authorize the sale of ales, wines and liquors by the State, and does prohibit all citizens of this State, as well as citizens of other States, from bringing them into the State for sale or use.

The act does allow the commissioner for the State to buy liquors outside the State, and does prohibit other persons from buying and bringing them into the State.

But we maintain that this is a legitimate exercise of the police power, and does not in any way regulate commerce between the States, and is not a discrimination against products or citizens of other States. It places citizens and products of this State on an equal footing with those of other States. Domestic liquors and foreign liquors are alike subject to the provisions of the law. While citizens of other States are forbidden to sell liquors within this State, the prohibition extends to citizens of this State as well; and while a citizen is prohibited from importing liquor, he is likewise prohibited from purchasing within the State any liquors not previously analyzed by the chemist and sold by the proper officers of the State.

Argument for Plaintiffs in Error.

The act may remotely affect commerce, but it does not interfere with or regulate it by discrimination or otherwise. Welton v. Missouri, 91 U. S. 275; Brown v. Houston, 114 U.S. 622; Walling v. Michigan, 116 U. S. 446; Mobile County v. Kimball, 102 U. S. 691 ; Woodruff' v. Parham, 8 Wall. 123; Machine Co. v. Gage, 100 U. S. 676; llinson v. Lott, 8 Wall. 148; Bartemeyer v. Iowa, 18 Wall. 129; Beer Company v. Massachusetts, 97 U. S. 25; Powell v. Pennsylvania, 127 U.S. 678; Plumley v. Massachusetts, 155 U. S. 461; Sherlock v. Alling, 93 U. S. 99; Leisy v. Hardin, 135 U. S. 100; Pittsburg & Southern Coal Co. v. Louisiana, 156 U. S. 590; Pittsburg & Southern Coal Co. v. Bates, 156 U. S. 577; Hennington v. Georgia, 163 U. S. 299; Western Union Tel. Co. v. James, 162 U. S. 650.

In the light of these cases, we submit that the dispensary law is a legitimate exercise of the police power.

We further submit:

1. The law does not discriminate against liquors the products of other States, but makes the liquors produced in this State, as well as those imported, subject to it.

Under the act of 1890, liquors imported from other States upon their arrival become subject to the police power, and if liquors manufactured in the State are put upon the same footing there is no discrimination against them on account of their extra-state origin.

2. The law does not discriminate against the citizens of other States. Citizens of this State are put on an equality with them. None of them can sell intoxicating liquors. It is true the State sells, but none of her citizens can do so.

3. The law does require her citizens to buy from dispensaries, but no citizen from other States is inhibited from doing so.

There is no discrimination in the law against citizens or products of other States, as such, and because they are citizens and products of other States; but the object is to protect the public morals, public health and public safety. It is not the intention of the law to regulate interstate commerce, but to protect the people of the State.

Argument for Plaintiffs in Error.

But it may be said that while the State sells liquors to her own citizens she cannot prohibit the introduction of liquors from other States upon the ground that they are deleterious and for the purpose of protecting her citizens from fraud and deception.

The provision in the act requiring all liquors sold by the dispensaries to undergo an analysis and their purity to be certified sufficiently answers this objection.

Then we maintain that the complainant is denied no right, privilege or immunity secured by the Constitution or laws of the United States, and no Federal question arises in this action. The simple averment in the bill that a Federal question is presented is not sufficient. New Orleans V. New Orleans Water Works, 142 U. S. 79; Hamblin v. Western Land Co., 147 U. S. 531.

The intention of the general assembly, as is evident from che general scope and detailed provisions of the dispensary act, was to protect the public health, public morals and public peace of the State, and not to burden or regulate interstate commerce. Some of the late cases indicate a modification by this court of views expressed in earlier cases as to the extent to which state legislatures may enact police regulations. Changed conditions, industrial development and more enlightened thought in this country have necessitated progressive exercise of the police power in the solution of social and governmental problems. The dispensary act is an example of legislation in this direction. It is difficult to conceive of any law enacted in exercise of the police power that does not affect interstate commerce, and in every instance the question is, does it affect commerce to the extent of its regulation? We repeat, the dispensary act is not directed against commerce or any of its regulations, but relates to the rights, duties and liabilities of citizens, and only incidentally and remotely affects the operations of commerce. Such laws have uniformly been held valid, and upon this principle we seek to uphold the act.

III. The executive officers of the State of South Carolina are equally as anxious as the complainant herein to have the

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