I think that the judgment of the Circuit Court should be reversed. My reasons may be briefly stated.
In the first place I think that the majority opinion correctly sets forth the general proposition as follows to wit: "Furthermore, it is conceivable that under some circumstances (words in parenthesis omitted by me) the procedural provisions might not be practicable in every respect. For example, obviously an officer could not sell at public auction and deliver to a purchaser alcoholic liquors seized by him the possession of which would under any and all circumstances be unlawful, and hence such liquors would not be returnable."
The majority opinion also states "and moreover, as we have already indicated, only such alcoholic liquors as could be lawfully sold at public sale by the officers could be required to be returned."
The foregoing exceptions of illegal liquor, by the Court's decision, from a return to the owner, upon the execution and tender of a bond leaves open to uncertainty and doubt the disputed fact as to what liquors come within the exception and as to what liquors come within the rule now being judicially announced. For instance unstamped liquor may be seized and sold by the sheriff if it is of unquestioned purity and content. Therefore, a writ of mandamus would lie for its return to the owner before such sale upon execution of the bond.
Section 17 of the Act of 1935 is mandatory and requires a seizure and sale by the sheriff of all unlawful unstamped liquor in the manner set forth in that section. All such liquor is contraband and the same may be "and the sheriff *Page 66 of the county in which such seizure is made shall take possession of said alcoholic liquors so seized for sale at public auction to the highest bidder, after due advertisement, but no sale shall be made to any person other than licensed manufacturers, wholesalers, or retail dealers licensed under the provisions of this Act, and the sheriff before delivery of any goods so seized to any purchaser shall require the purchaser to affix the proper amount of stamps to the individual packages, as above defined."
The Act of 1939 declares that all alcoholic liquor found in places of business is contraband and subject to seizure and sale as provided in Section 17 of the Act of 1935. The Act of 1939 makes it unlawful to store or have in possession in any place of business, except a licensed liquor store, any alcoholic liquor whatsoever. (Acts 1939 at page 307.) This includes and covers stamped and unstamped liquor in a place of business. All such liquor is illegal, illicit, and contraband. The law says it must be seized and sold by the sheriff. It is all contraband. The law does not permit one person to file a bond and obtain possession of contraband liquor, if stamped, and deny the right to another person to file a bond and obtain possession of contraband liquor, if not stamped. Both are contraband and both are equally subject to confiscation under the law.
It is not practicable to apply the procedure as to a bond in either case, but it is equally unlawful in either case.
The remedy under the law is that the sheriff shall not sell the liquor at once but "that such sale shall await and be governed by the event of the trial." (Acts 1939, Section 15, page 307.)
Due process of law is had by the event of the trial. Should such illegal, illicit, contraband liquor be retaken from the sheriff before the trial all of the evidence would be gone and the trial would be futile. The Court does not favor the use of its process to defeat justice. The Court in the case ofGriste v. Burch, 112 S.C. 369, 99 S.E., 703, 704, has *Page 67 this to say: "Under such circumstances, the court will not permit the use of its process. Lanahan v. Baily, 53 S.C. 489,31 S.E., 332, 42 L.R.A. 297, 69 Am. St. Rep. 884;Rountree v. Ingle, 94 S.C. 231, 77 S.E. 931, 45 L.R.A. (N.S.), 776, Ann. Cas. 1915-A, 1002; Elder HarrisonCompany v. Jervey, 97 S.C. 185, 81 S.E. 501.
"In the first-mentioned case [53 S.C. 489,31 S.E. 334, 42 L.R.A. 297, 69 Am. St. Rep. 884], this court quotes with approval the following language from Bank v.Owens, 2 Pet. 527, 7 L.Ed. 508:
" * * * `No court of justice can, in its nature, be made the handmaid of iniquity. * * * Courts are instituted to carry into effect the laws of a country; how can they, then, become auxiliary to the consummation of violations of law? * * *
"`There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal.'"
In the case of Harvie v. Heise, Sheriff, 150 S.C. 277,148 S.E., 66, 69, this Court had this to say: "It is not claimed that the statute in question is void; the claim is that it is not applicable for the reason that none of its provisions are violated by the operation of the slot machines in question. The holding of this court being to the contrary, equity will not interpose to enjoin the enforcement of a valid criminal law, or of prosecution under such law. Cainv. Daly, 74 S.C. 480, 55 S.E. 110; Charleston Oil Companyv. Poulnot, Sheriff, 143 S.C. 283, 141 S.E. 454 [60 A.L.R. 750]; [Palmetto] Golf Club v. Robinson, Sheriff,143 S.C. 347, 141 S.E. 610."
The mere payment of the license tax and the presence of the stamps on the liquor does not create a lawful right out of an unlawful act of having in possession or storing the liquor in a place of business which is unlawful and prohibited under the statute. Alexander v. Martin, Sheriff, 192 S.C. 176,6 S.E.2d 20. *Page 68