dissenting. As I cannot concur in the conclusions reached by the majority of this court in this case, I propose to state as briefly as practicable the grounds of my dissent. Inasmuch as it is distinctly admitted in the opinion prepared by Mr. Justice Gary, uow under review, that while there are certain minor differences between the two acts of 1892 and 1893, relating mostly to the administrative features of the law, yet “that the principles upon which the act of 1892 *255was declared to be unconstitutional will make the act of 1893 unconstitutional, if followed in this case;” and inasmuch as the same admission is made in express terms by one of the counsel who argued this cause on the part of the State, and by the other, impliedly, at least, there is no necessity to enter into any consideration of the terms of the two acts, respectively, in order to show that they both rest upon the same principles, and, if the one is unconstitutional, the other must be so also. The practical question, therefore, which is now presented, is whether the cases of McCullough v. Brown, 41 S. C., 220, and the cases of Barringer v. City Council, Ex parte Brunson, Id., 501, and State v. O'Donnell, Id., 553, recognizing and following the case of McCullough v. Brown, shall now be overruled, and also whether the principles declared in Feldman v. City Council, 23 S. C., 57, and Mauldin v. City Council, 33 S. C., 1, relied upon to support the decision in McCullough v. Brown, shall now be disregarded. .
A sufficient answer to this question is, in my judgment, the well settled and wholesome doctrine of stare decisis; for while no one, so far as I am informed (I certainly do not), doubts the power of this court to overrule a former decision, yet the wisdom or propriety of exercising such a power, presents a very different question. Text-writers, as well as courts of the highest authority, warn us against the exercise of this admitted power, even where the court may regard a former decision as erroneous in some respects. See Kent’s twenty-first lecture, which will not be quoted from here, as it is largely quoted from in a decision of this court which will presently be cited. In Wright v. Sill, 2 Black, 544, the Supreme Court of the United States uses this language: “Whatever differences of opinion may have existed in this court originally in regard to these questions, or might now exist, if they were open for reconsideration, it is sufficient to say that they are concluded by these adjudications.” In Minnesota Co. v. National Co., 3 Wall, 332, the same tribunal, in speaking of^e inififfiTaiKte of adhering to former decisions, used this language: “Parties should not be encouraged to speculate on a change of the law when the administrators of it is [are] changed.”
*256In the case of Gage v. Charleston, 3 S. C., 491, the Supreme Court of this State, when called upon to reverse a decision of their predecessors, in the case of State v. Mayor, etc., of Charleston, 10 Rich., 491, declined to do so, resting their decision solely on the doctrine of stare decisis. Moses, C. J., in delivering the opinion of the court, rests his conclusion largely upon the authority of Chancellor Kent, who “bears his own testimony to the importance of adhering to a solemn decision, as the highest evidence which we can have of the law applicable to the subject,” and recommends and adopts the rule laid down by that eminent jurist as the rule by which this court must be governed. There can be no doubt that in the case of McCullough v. Brown, supra, this court, as it was then constituted, made “a solemn decision” of the identical question now presented, and there is as little doubt that such decision was recognized and affirmed in the three subsequent cases above cited. Here, then, we have a solemn decision, made, too, as is well known,, after the most elaborate argument, and after the fullest consideration by the court, affirmed in three subsequent cases, which, as Chancellor Kent says, furnishes “the highest evidence which we can have of the law applicable to the subject;” and if all this does not furnish a proper case for the application of the wholesome doctrine of stare decisis, it is difficult for me to conceive of a case for its application.
But I do not propose to rest my dissent solely upon the doctrine of stare decisis, but will proceed to consider whether the principles upon which the decision in McCullough v. Brown rests have been shown to be erroneous; for, until that is done, every one must admit, as Mr. Justice Gary frankly does admit, that such decision must be followed in this case. I do not, of course, propose to reproduce here the reasoning employed or the authorities cited in the previous decision, except in so far as it may be necessary to correct what appear to me to be certain misconceptions of the grounds upon which the former decision was rested. While, therefore, still relying upon, but not repeating here, such reasoning and authorities, I proceed to notice certain points in which, as it seems to me, the former decision has been entirely misunderstood. Inasmuch as it was *257distinctly declared in the former decision (p. 41), that “we fully concede the power on the part of the legislature to throw around such traffic [speaking of the liquor traffic], all safeguards necessary and proper to prevent or, at least, minimize such evils [alluding to the evils likely to flow from an unrestricted traffic in spirituous liquors], 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” — that is to say, whether such act can properly be regarded either as a prohibition law or as a law to regulate the sale of spirituous liquors, for the opinion immediately proceeds to show that the Dispensary Act cannot properly be regarded as either the one or the other;' and again, after discussing the question whether the Dispensary Act can properly be regarded as an act to regulate the sale of spirituous liquors, this language is found in the opinion of the majority of the court in McCullough v. Brown (p. 244): “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 cannot regard the dispensary law as such an act.” In view of these distinct and repeated concessions, it is impossible to understood why it should have been thought necessary, or even pertinent, to cite case after case, to show that this court had previously held the law to be just what it was explicitly conceded to be in the former opinion. To say the very least, it was certainly a work of supererogation, or it disclosed a clear misconception of the positions taken in the previous case.
Another misconception of the grounds upon which the decision in McCullough v. Brown was rested will be found in the unwarranted assumption that the court in that case denied the power of the legislature to embark the State in a trading enterprise upon some vague ground that it is in violation of the fundamental theories of republican institutions, or, as it has *258been expressed, “under the guise of some philosophical abstraction that there is some power in them [the courts] by reason of some mysterious something, called, for the want of a better name, ‘the social compact;’ ” or, as it is expressed by the attorney general in his argument in this case, the court, in the case of McCullough v. Brown, acting upon the theory “that there was an unwritten constitution prohibiting the encroachments on natural rights without and beyond the terms of the written constitution, logically took into that theory, and as necessary to it, the construction that sec. 41 of art. 1 limited the powers of the written constitution — thus making a resort to some standard not laid down in the words of the charter” (the word “necessary,” or some such word, being probably omitted by a mistake of the printer). A careful scrutiuy of the opinion of the majority utterly fails to show that the denial of the power of the legislature to embark the State in any trading enterprise is rested upon any such vague, philosophical abstractions, or any such grounds as have been indicated above, as the basis upon which such denial rests.
In that opinion the following language is used (p. 248): “Finally, the constitutionality of the Dispensary Act is assailed upon the grounds 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 expressed 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 governments must necessarily be regarded as limited by that declared purpose.” And again, after showing that this doctrine of implied limitations upon the legislative power had been recognized and applied in cases of taxation by the Supreme Court of the United States and by this court itself, as well as by the courts of other States, we find this language (p. 249): “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 in any trade which in*259volves the purchase and sale of any article of commerce for profit, is outside and altogether beyond the legislative power conferred upon the General Assembly by the Constitution, even though there may be no expressed provision in the Constitution forbidding such an exercise of legislative power. Trade is not and can not 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.”
If there is anything in this language which contains the gist of the argument upon w-hich the proposition that the legislature had no power to embark the State in a trading enterprise, that contains any hint or suggestion even that the majority of the court rested its conclusion upon this point in the case upon any such principles as have been unwarrantably assumed to be the basis of the former decision as set out above, I must confess my inability to perceive it. On the contrary, the conclusion formerly reached was rested solely upon the ground that, although the Constitution contained no express provision prohibiting the legislature from embarking the State in a trading enterprise, yet such a prohibition was necessarily implied by the terms used in the Constitution, expressly declaring the purpose for which that instrument was adopted, as well as by the express terms used in section 41 of article 1 of the Constitution.
This brings me to notice another misconception of the view taken of that section in the former case. It seems to be supposed that the majority of the court in the case of McCullough v. Brown construed that section as meaning that a portion of the legislative power had been reserved by the people, and, therefore, the portion so reserved could not be exercised by the legislature, and the case of State v. Hayne, 4 S. C., 403, is again cited to refute such supposed view. In the former case the majority of the court used the following language (p. 249): “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 inter*260fere, 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.” In view of this express statement of what the court in the former case regarded as the true construction of section 4=1 of article 1, it is somewhat difficult to understand how it can be supposed that the court regarded it as reserving any legislative power to the people.
Indeed, the construction placed upon this clause of the Constitution by the majority of the court in the case of McCullough v. Brown, is practically the same as that adopted by Willard, C. J., in State v. Hayne, supra, for he says: “The true effect of this declaration is that it reserves to the people whatever is not granted by the instrument, as, for instance, the right to make changes in the form of government is not granted, and under this clause remains in the hands of the people, capable of exercise when they may see fit to do so.” The form of expression used, “as, for instance,” shows that the right to change the form of government, used merely as an illustration, was not the only right reserved by this clause of the Constitution; and I may venture to add another illustration, as, for instance, the right to settle any disputed question of science by legislative act is not granted, and, therefore, is beyond the competency of the legislature, though not expressly forbidden, but is forbidden by necessary implication. Why? Because it is altogether outside of the declared purpose in forming the Constitution, and, therefore, beyond the purview of the legislative power therein granted. Other illustrations might be used, but, as time is pressing, I will, as Mr. Chief Justice Willard did, content myself with one. It is very obvious, therefore, why it was not deemed necessary to refer to the case of State v. Hayne in Feldman v. City Council, 23 S. C., 57.
In this connection, it may be well to notice the criticism of Mr. Justice Gary upon that case. His view, as I understand it, is that, while the decision .in that case was right, it was placed upon an erroneous ground; that the very nature and definition of the term “taxation,” necessarily implied that it *261could only be imposed for some public purpose. Hence, when the Constitution conferred upon the legislature the general power of taxation, the use of that term necessarily carried with it the idea that it could only be imposed for some public purpose, although the Constitution did not, in express terms, forbid the imposition of taxes for a private purpose. This, as it seems to me, is but the expression of the same principle upon which the decision in Feldman’s case rested, in a different and perhaps stronger form. The principle upon which the question turns is, that the grant of any legislative power is necessarily limited by the nature and definition of the terms used in conferring the .power. Hence, as I have argued in this as. well as in the former case, the general grant of legislative power contained in the Constitution must be regarded as necessarily limited by the expressly declared purpose for which such grant was conferred. To apply this principle to the present case, the Constitution having been adopted for the declared purpose of forming a civil government, every grant of power therein to the different departments of the government, legislative or otherwise, must necessarily be limited to the accomplishment of that expressly declared purpose as ascertained by the nature and definition of the terms used in declaring such purpose, just as the general power of taxation, when conferred without any express limitation, is necessarily limited to the purposes for which such power is conferred, as ascertained by the nature and definition of the term used. Indeed, I understand it to be a settled rule of construction to be applied to any written instrument, whether it be a Constitution or an ordinary contract between private persons, that where the purpose of such instrument is expressly declared therein, reference must be had to such declared purpose in ascertaining the scope and extent, of its terms. I think, therefore, that until it is shown (which I think never can be) that trade is one of the appropriate functions of civil government, any statute purporting to embark the State in any trading enterprise is altogether beyond the competency of the legislature, because it exceeds the limitations upon the legislative power necessarily implied from the express terms used in the Constitution.
*262This doctrine of necessary implication has been expressly recognized and affirmed by the Supreme Court of the United States in at least two cases — Dobbins v. Commissioners, 16 Pet., 435, where it was held that a State could not impose a tax upon the salary of an officer of the United States government; and the case of Collector v. Day, 11 Wall., 113, where it was held that the United States government could not impose a tax upon the salary of a State officer. In the case last cited, Mr. Justice Nelson, in delivering the opinion of the court, uses this language: “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 aqd instrumentalities of that government. In both cases, the exemption rests upon necessary implication, and is upheld by the great law of self-preservation.” As I understand it, Mr. Justice Gary, with that commendable frankness and candor which should always characterize a judicial opinion, concedes that if the object of the Dispensary Act was to embark the State in a commercial enterprise, and it was not intended as a police measure, it would be unconstitutional. It is due to him that I should quote the language used by him in this connection: “We have no doubt that if such was the object of the act, and it was not intended as a police measure, it would be unconstitutional, even in the absence of section 41, article 1. As we have said, if the act is not a police measure, it is unconstitutional. It is quite a different thing, however, when trade is simply an incident to a police regulation.”
The next inquiry, therefore, is, whether this dispensary legislation can be regarded as a legitimate exercise of the police power. And first, it will be necessary to determine where such legislation is to be found. It certainly is not to be found in the act of 1893 alone, for that view is clearly negatived by the title of that act, as well as by the terms used in its repealing clause. The title of the act of 1893 is as follows: “An act to declare the law in reference to, and further regulate, the use, sale, consumption, transportation, and disposition of alcoholic liquids or liquors within the State of South Carolina, and to *263police the same.” Now, the use of the words, “declare the law,” and “further regulate the use, sale,” &c., “of alcoholic liquors,” necessarily implies the continued existence of some previous law upon the subject; and the only statute of that kind which we have is the act of 1892 upon the same subject, which passed under review in the case of McCullough v. Brown. Then the repealing clause of the act of 1893, which is in these words, “All acts or parts of acts inconsistent with this act are hereby repealed,” does not, in terms, purport to repeal any particular act, but only such acts or parts of acts as may be inconsistent with the act of 1893. Hence, upon the plainest principles of statutory construction, the act of 1893, even if regarded as constitutional, cannot be considered as repealing the entire act of 1892, but only such parts thereof as may be found inconsistent with the provisions of the act of 1893. It follows from this, that the dispensary legislation must be found in both acts.
The next question is, whether such legislation can properly be regarded as a legitimate exercise of the police power of the State. Without repeating here the reasoning and the authorities used in the majority opinion of this court in McCullough v. Brown, to show that this legislation cannot be regarded as a legitimate exercise of the police power, though still relying upon the same, I will proceed to consider some other views upon this subject presented in the argument of the case now before the court, and in the consideration of this case by the court. Before doing so, however, I must be permitted to advert to what I consider a very dangerous doctrine, asserted in the former case, and again insisted upon in this case. That doctrine, as I understand it, is, that the police power of the State is limited only by the will of the legislature, except, perhaps, in those cases where certain powers have been denied to the States by the provisions of the Federal Constitution. Hence, it is argued that when the legislature passes an act declaring it to be intended as a police regulation, the court have no right to inquire whether such act is, in fact, a police regulation, and, as such, a legitimate exercise of the police power. I cannot subscribe to any such doctrine, for it would subject the rights *264of the citizen, secured to him by constitutional provisions, to the unrestrained will of the legislature, and would render absolutely useless all the safeguards provided in the Constitution for the protection of his rights against invasion by the lawmaking power of the government. While this undefined and, therefore, dangerous power, called in general terms the “police [lower,” is fully conceded, and, I may add, is essential to the welfare of the government and of the people composing it, yet I cannot agree that it can be exercised without limitation or restraint. It has its origin and is based upon the doctrine of self-preservation, said to be the first law of nature. “Salus populi est mprema lex.” It may be likened to the doctrine of self-defence as between individuals, which justifies even the taking of human life in a case proper for its exercise; and, as the courts have unquestioned authority to pass upon any case in which that doctrine is invoked, I do not see why, upon the same principle, the courts may not pass upon a similar power, when it is invoked, to sustain an act of the legislature.
These views, which it seems to me are fully supported by reasoning from the nature of the case, are also sustained by authority. To show this, it is only necessary to refer to the case of McCandless v. Railroad Co., 38 8. C., 103, and to what is said by Mr. Justice Harlan in the case of Mugler v. Kansas, 123 U. S., at pages 660, 661, a case quoted from in the opinion of Mr. Justice Gary. It seems to me that the use of the word “primarily” in the quotation is sufficient to show that the learned judge recognized the doctrine for which I contend— that while the legislature must of necessity “primarily” determine what measures are needful or appropriate for the protection of the public morals, &c., yet such determination is not final and conclusive. But if there is any doubt as to the true meaning of the sentence quoted, that doubt is effectually dissipated by the language immediately following, which is not quoted: “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. * * * The courts are not bound by mere forms, *265nor are they to be misled by mere pretences. They are at liberty — indeed, under a solemn duty — to look at the substance of things whenever they enter upon the inquii’y, whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable-invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the Constitution.”
I proceed next to inquire whether the dispensary legislation can be regarded as a legitimate exercise of the police power. It seems to me clear beyond dispute that it cannot. As is said in the quotation from Black on Intoxicating Liquors, found in Mr. Justice Gary’s opinion, the maxim, “Sicuteretuoutalienum non Icedas,” furnishes the general rule for the application of the police power. In other words, that power can only be exercised for the purpose of restraining one citizen from so using his own rights or property as to work injury to the rights of another. To apply this abstract principle to the particular subject with which we are dealing, under the police power the law-making department of the government may throw such restraints around the traffic in spirituous liquors as may be deemed necessary to protect the health, morals, and safety of the community, and may even -go further, and absolutely prohibit such traffic, provided it is inherently and necessarily injurious to society. But this power is to be exerted for the purpose of restraining the citizen in the exercise of his rights to trade in any lawlul article of commerce, and cannot be so extended as to authorize the State to engage in a traffic forbidden to the citizen. The police power reaches its limit when it restrains or prohibits a citizen from engaging in a traffic regarded as hurtful to society, and cannot be exercised for the purpose of enabling the State to engage in such traffic.
This proposition has been distinctly decided in the only case, so far as I know, in which this proposition has been directly presented. In the case of Rippe v. Becker, 1 Minn., I find the following language in the syllabus, prepared by the *266court itself for the very purpose of showing what were the points decided in the case: “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.” And in the body of the opinion I find this language: “The police power of the State to regulate a business does not include the power to engage in carrying it on.” And again the learned judge, speaking for the court, in regard to the true signification of the police power, says: “The term means simply the power of the State to impose those restraints upon private rights which are necessary for the general welfare of all, and is but the power to enforce the maxim, Sic títere tuo ut alienum non Icedas.” It seems to me clear that when the police power has been exercised by enacting laws for the regulation of the traffic in spirituous liquor by the citizen, or absolutely prohibiting such traffic, the police power is exhausted, for there is nothing else upon which it can be exercised. Hence any legislation which, going beyond this, purports to invest the State authorities with the exclusive right to buy and sell spirituous liquors, cannot be vindicated as an exercise of the police power.
An attempt is made to draw a distinction between the application of the police power to the traffic in spirituous liquor and to other subjects, to which such a power may be applied. I am unable to discover any foundation for such a distinction, either in reason or authority. While it may be true that the mode of exercising the power may be different, according to the subject to which it is applied, and the regulation may be much more stringent in one ease than in the other, yet the foundation of the power, and the principle upon which it is exercised, is the same, no matter what the subject may be to which it is applied. The regulations which have, from time to time, been adopted by which the traffic in spirituous liquors has been controlled, are fully j ustified as a legitimate exercise of the police power,' because it is generally, if not universally, regarded as a traffic dangerous to society if unrestrained and unregulated by law. Upon the same principle the traffic in *267drugs, which, of course, includes poisons of all kinds, being regarded as attended with danger to the community unless subjected to proper regulations, may, under the police power, be so regulated; but the legislature, under the guise of the police power, has no more right to pass an act by which the State is to assume the exclusive business of buying and selling spirituous liquors, absolutely forbidding the citizen from engaging in such business, than it has to pass an act by which the State is to assume the exclusive business of buying and selling drugs, absolutely forbidding the citizen from engaging in such business. The same principle applies to all other subjects upon which the police power may be legitimately exercised.
It seems to me, also, an entire mistake to argue that, because the State may delegate the exercise of the police power to some subordinate governmental agency — as, for example, a municipal corporation — it may also delegate such power to a private citizen, and that it does so delegate it when it issues a license to a saloon keeper to sell spirituous liquors. While it is not doubted that the State may and has delegated the police power to some subordi nate governmental agency, such as a municipal corporation, within the limits of such corporation, I do most emphatically deny the power of the legislature to delegate any portion of its legislative power — police power or anything else — to a private citizen; and, so far as I am informed, neither this State nor any other has ever undertaken to do so. When the legislature passes an act forbidding the sale of spirituous liquors by any private citizen without a license, and prescribes the conditions upon which such a license may be obtained, this is done by the State, through its legislative department, in the exercise of the police power of the State; and when the person to whom the license has been issued sells any spirituous liquor, he does so not by virtue of any police power delegated to him, but by virtue of his compliance with the regulations prescribed by the State in the exercise of its police power. But, as was held in the case of Mauldin v. City Council, 33 S. C., 1, even where the State delegates the police power to a municipal corporation in the broadest and most unlimited terms, the corporation could not, *268under the guise of an exercise of the police power, engage in any private business; for, as was said by Mr. Justice McGowan in that case: “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 any kind outside of the scope of the city government.” The decision in that case, as was shown in McCullough v. Brown, rests upon a principle which, as it seems to me, is conclusive of the question now presented.
There is another consideration which conclusively shows that this dispensary legislation cannot be regarded as a legitimate exercise of the police power. Both of the acts of 1892 and 1893 manifestly contemplate that, as a part of the scheme, the State authorities shall sell spirituous liquors outside the limits of this State, and upon this construction of the act of 1892, the State authorities have acted, as may be seen by reference to the ease of South Carolina v. Seymour, 153 U. S., 353, where, in the oath of the governor in support of the petition for the registry of the trade-mark adopted by the State, it is stated, “that the said trade-mark is used by the said State in commerce with foreign nations or Indian tribes, and particularly with Canada.” This feature of this dispensary legislation, together with its profit features, commented on in the former decision, show to my mind very clearly that the whole scope and intent of this legislation was to enable the State to monopolize the liquor traffic, to the entire exclusion of the citizens, with a view to the profit of such traffic. This is made more apparent when it is seen that the same legislature which passed the act of 1893, passed another act on the same day, providing that the profits of the dispensary in the county of Clarendon should be applied to the past indebtedness of that county. See acts 1893, p. 452.
As a justification for the State entering into the business of buying and selling liquors, reference is made to the fact that the federal, State, and municipal governments buy and sell articles without question as to their authority so to do; and reference is made to the practice of the penitentiary and lunatic asylum, both of which institutions buy articles for the support thereof, and. sell the products of the labor of the in*269mates thereof. But this, as it strikes me, is a very different thing from the State’s engaging in the liquor traffic. In the one case, the articles are bought for the purpose of carrying on the government or the institutions above alluded to, and when no longer needed for such purposes, sold again, while under the dispensary legislation, liquor is bought, not for any governmental purpose, but for the express purpose of being sold again at a profit. It also seems to have escaped attention that the two institutions specially referred to — the lunatic asylum and penitentiary — are both contemplated and provided for in the Constitution (the former expressly, and the other by necessary implication, as may be seen by reference to sections 1, 2, article.XI., of the Constitution), and, therefore, any appropriate means for carrying them on may lawfully be provided for by statute.
But, without pursuing the subject further, it seems to me that it has been shown in this and in the opinion of the majority of the court in the case of McCullough v. Brown, that spirituous liquor is a lawlul article of commerce; and this is so acknowrledged by the Supreme Court of the United States even since the passage of the Wilson bill, as may be seen by reference to the case of In re Rahrer, 140 U. S., 545, cited by Mr. Justice Gary under the name of Wilkerson v. Rahrer — a case which arose after the passage of that bill — where Mr. Chief Justice Fuller uses this language: “Unquestionably, fermented, distilled, or other intoxicating liquors or liquids are subjects of commercial intercourse, exchange, barter, and traffic between nation and nation, and between State and State, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts” — that, this being so, every citizen of this State has a constitutional right to engage in such traffic, subject, however, to the right of the State government, in the exercise of its police power, to throw such restraints around such traffic by the citizen as may be deemed necessary to protect the morals, health, and safety of the community against the evils incident to such traffic, or, if such traffic is inherently and necessarily injurions to society, may *270absolutely prohibit the same — that the dispensary legislation is neither the regulation of the traffic nor a prohibition of the same, but, on the contrary, is a scheme by which the State proposes to monopolize such traffic, to the entire exclusion of the citizen, and to force every consumer who may desire to obtain spirituous liquors for any purpose to purchase the same from the State authorities at such a profit to the State as may be fixed by the designated State authorities, and hence such legislation cannot be regarded as a legitimate exercise of police power; and finally, that any legislation which, like the dispensary law, undertakes to embark the State in trade, is without constitutional authority. I must, therefore, conclude that this dispensary legislation, whether presented in the form of the act of 1892 or in the form of the act of 1893, or both combined, is in violation of the Constitution of the State, and, therefore, null and void, except in so far as the provision in the act of 1892 forbidding the granting of licenses to sell spirituous liquors beyond the time therein limited is concerned.
Having reached this conclusion, it is scarcely necessary to go further and inquire, especially in a dissenting opinion, whether the legislation which has been under consideration violates the Federal Constitution'. But I may add, without going into any discussion of the federal question, that it seems to me that so much of this dispensary legislation as purports to forbid a citizen of this State from importing, either from a foreign country or from another State of this Union, any spirituous liquors for his own use, is in violation of sec. 8, art. I., of the Constitution; for it will be observed that even the Wilson bill does not forbid such importation, nor does it authorize any State to do so. On the contrary, its language necessarily implies that liquor may be transported from one State into another, and all that such bill purports to do is to subject such liquor, upon its arrival in a State, to the laws of such State.
Judgments affirmed.