Brennen v. Southern Express Co. , 106 S.C. 102 ( 1916 )

Being unable to concur in the prevailing opinion in this case written by Mr. Associate Justice Hydrick, and my duties on circuit preventing the preparation of a full statement of my position, I shall endeavor briefly to cover the grounds of my dissent. The facts of the case are so clearly set forth in the opinion of Mr. Associate Justice Hydrick that I need not restate them.

The act of February 20, 1915 (29 Stats. 140), entitled "An act to regulate the shipment of spirituous, vinous, fermented or malt liquors or beverages into this State, and to provide penalties for the violation of this act," known as the "gallon a month" law, being passed at a time when the State of South Carolina was engaged in selling intoxicating liquors in unlimited quantities to any person who desired to purchase, imposed a burden on interstate commerce in that it prohibited the importation from without the State of more than one gallon to any one person in a calendar month. This was clearly a violation of the Federal Constitution, since it was an unlawful discrimination against liquors shipped into the State in interstate commerce. The opinion of Mr. Associate Justice Hydrick cites authorities in support of this position, and expressly declares that the act in question at the time of its enactment up to and including the time of the trial of the case under consideration was unconstitutional.

Reference to the title shows that the act does nothing more than limit the amount of liquors to be shipped into the State in interstate commerce, and provides penalties for its infringement. Hence, if it was invalid as constituting a burden on interstate commerce, it was void in its entirety.

If the statute was unconstitutional when enacted, it is void and of no force or effect; and nothing can revive or breathe life into it. The subsequent passage of the prohibition law by the legislature put an end to the State's engaging in the business of selling liquor and removed the constitutional defects that had rendered the "gallon a month" law null and void, but only be re-enactment after the passage of the prohibition law could such legislation ever become valid. The General Assembly has not taken such action, and the act of February 20, 1915, remains a nullity. This view is expressly sustained by a line of decisions of this Court, Atkinson v. Southern Express Co., 94 S.C. 444,78 S.E. 516, 48 L.R.A. (N.S.) 349; Hodge v. School District,80 S.C. 518, 520, 61 S.E. 1009, and State v. Whitesides,30 S.C. 579, 9 S.E. 661, 3 L.R.A. 777, and also by the trend of authorities in this country, a few of which are here cited: Cooley's Constitutional Limitations, 544, 545;State v. Tufly, 20 Nev. 427, 22 P. 1054, 19 Am. St. Rep. 374, and note appended thereto; Seneca Mining Co. v. Secretaryof State, 82 Mich. 573, 47 N.W. 25, 9 L.R.A. 770;State v. Miller, 66 W. Va. 436, 66 S.E. 522, 19 Ann. Cas. 604; Banaz v. Smith, 133 Cal. 102, 65 P. 309; Thomas v.State, 76 Ohio St. 341, 81 N.E. 437, 10 L.R.A. (N.S.) 1112, 118 Am. St. Rep. 884.

For the reasons herein set out, I dissent from the opinion of the majority, and concur in the result of the opinion rendered by Mr. Associate Justice Watts.