Argument for Petitioner.

been shown, no citizen of this country has a right to sell intoxicating liquors, and hence the people have no common right to engage in that trade as a business. When the legis lature, in the exercise of the police power, sees fit to commit the control of that trade to the State, under such regulations as its discretion suggests, it does not deprive any citizen of his rightful business and does not create a monopoly in the proper and objectionable sense of that word.

Besides, as the prohibition or regulation of such trade rests entirely within the police power of the legislature, it may make the license to sell intoxicating liquors exclusive in the State or in any corporation or citizen when deemed necessary. The State v. Brennan's Liquors, 25 Connecticut, 278.

This doctrine of monopoly by the State of the trade in intoxicating liquors is sustained in principle by the SlaughterHouse Cases, 16 Wall. 36.

IV. It is also urged that the Fourteenth Amendment is violated by some of the provisions in the Dispensary Law. But the Dispensary Law being a police law, the Fourteenth Amendment cannot impair its provisions. Besides, there is no discrimination which makes the clause class legislation. Barbier v. Connolly, 113 U. S. 27, 32; Trageser v. Gray, 73 Maryland, 250.

V. It is further contended: (1) that the statute does not authorize a seizure without warrant, and (2), that if it be construed to give such authority, it violates the provisions of the constitution respecting unreasonable searches and seizures. This provision of the constitution of South Carolina is substantially the same as the provisions of the Constitution of the United States and of Maine, Massachusetts, and Vermont, in regard to searches and seizures. In the statutes of each of those States, as to intoxicating liquors, there is an express provision allowing the proper officer to seize the liquor intended for unlawful sale and to arrest the keeper of it "without warrant," and then to proceed formally in the matter, to its adjudication.

These provisions of statutes of Maine, Massachusetts, and Vermont as to arrest and seizure without a warrant " have

Argument for Petitioner.

been construed and sustained by the highest courts in those states. Jones v. Root, 6 Gray, 435; State v. O'Neil, 58 Vermont, 140; In re Powers, 25 Vermont, 261; The State v. McCann, 59 Maine, 383; The State v. Dunphy, 79 Maine, 104.

VI. The position taken by respondent's counsel, that the liquors in question could not be seized by the petitioner, because it was in the custody of the law, is untenable.

It is admitted that all the property of the South Carolina Railway Company, when it passed into the hands of the receiver, went into the custody of the law, and that the receiver could not be arrested for obeying the order of the court in reference thereto; nor could his possession of the property be interfered with by seizure under execution. But the liquor in question was not in the custody of the law simply because it happened to be in the temporary possession of the receiver. It was no part of the property of the railway company that had been taken into the custody of the law, under and by virtue of the receivership thereof. The receiver had transported it as a common carrier, as the property of Lowenstein Bros., to Charleston, and there held it as their property for delivery to them as the owners. He sustained no other relation to the liquor than that which the railway company itself sustained to it, to wit, that which imposed the duty upon him to deliver it, if not prevented by the law, and allowed him to charge proper freight thereon.

So the receiver in this case being a common carrier, who had performed his duty as such in transporting the liquor, and then held it as the property of another, to be delivered upon payment of proper charges, had no higher rights in regard to the same than any other warehouseman would have.

It follows, therefore, that the liquor not being a part of the property of the railway company in the control of the court, and being the property of another, in temporary charge of the receiver or warehouseman, he could not properly hold it against the seizure by your petitioner, and the court could not protect him in refusing that obedience to a valid police law incumbent upon every citizen.

Opinion of the Court.

VII. The position taken by the respondent's attorney, that Rev. Stat. § 974, quoted by him, authorizes the punishment for contempt by both imprisonment and payment of the costs, is incorrect.

That section evidently refers to regular prosecutions for crimes, and has no reference to punishment for contempts under rule.

It must be concluded either that, if the costs are a fine, they cannot be imposed as joint punishment with imprisonment; or that, if not considered a fine, they are added as a part of the punishment, and are in excess of the limitation of the

statute.

In either case, the express limitation upon the power to punish must control.

Mr. Joseph W. Barnwell, opposing.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

We reiterate what has so often been said before, that the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal; but when no writ of error or appeal will lie, if a petitioner is imprisoned under a judgment of the Circuit Court which had no jurisdiction of the person or of the subject-matter, or authority to render the judgment complained of, then relief may be accorded. In re Frederich, 149 U. S. 70; In re Tyler, Petitioner, 149 U. S. 164.

The contention here is that the order of committal was wholly void for want of jurisdiction to make any order whatever, or to make the particular order.

1. To sustain the proposition that the court had no jurisdiction to commit, it is argued that the petitioner was in the discharge of his duty as an officer of the State in the execution of a valid police law of the State, authorizing the search and seizure; that his action was therefore justifiable, and judicial interference with him absolutely precluded.

The validity of the Dispensary Act was elaborately discussed

Opinion of the Court.

by counsel for petitioner, but we perceive no necessity for entering upon an examination of that question. The Circuit. Court was of opinion that the act did not authorize a seizure without warrant. It was admitted below that such a seizure could not be made except under the authority of a statute conferring the power to do so, and nothing to the contrary has been adduced on this argument.

Any other view would be inconsistent with settled principles of the common law and with familiar constitutional provisions for the security of person and property and immunity from unreasonable searches and seizures. The original occasion for securing that immunity may have been the abuse of executive authority in the matter of obtaining evidence of political offences, but these safeguards are not therefore limited in their scope, and extend protection against every exertion in that direction of merely arbitrary power.

In some of the States authority to proceed in respect of liquors, without warrant in the first instance, is expressly given by statute, but is accompanied by the provision that when the seizure is so made, the property seized is to be kept in safety for a reasonable time until a warrant can be procured, and it is held that, should the officer neglect to obtain a warrant within such time, he will be liable as a trespasser. Kent v. Willey, 11 Gray, 368; Weston v. Carr, 71 Maine, 356. In Kennedy v. Favor, 14 Gray, 200, 202, Chief Justice Shaw said: "The authority to seize liquors without a warrant, though sometimes necessary, is a high power; and, being in derogation of common law right, it is to be exercised only where it is clearly authorized by the statute or rule of law which warrants it."

In his examination of the Dispensary Act the learned judge holding the Circuit Court pointed out that it was to be strictly construed and not to be extended beyond the import of its terms. Northern Pacific Railroad v. Whalen, 149 U. S. 157. The act could not be regarded as dealing with intoxicating liquors as if they were a deadly poison whose presence was noxious per se, which might justify an enlarged construction of the language of the statute to the end that so fearful a nui

Opinion of the Court.

sance might be abated, for their use as a beverage was recognized, and their sale placed in the hands of public officials. Moreover, it was not admissible to hold by construction that the statute had authorized the seizure of the goods without warrant, in view of section twenty-two of article I. of the constitution of South Carolina, which declared that "all persons have a right to be secure from unreasonable searches, or seizure of their persons, houses, papers, or possessions. All warrants shall be supported by oath or affirmation, and the order of the warrant to a civil officer to make search or seizure in suspected places, or to arrest one or more suspected persons, or to seize their property, shall be accompanied with a special designation of the persons or objects of search, arrest, or seizure, and no warrant shall be issued but in the cases and with the formalities prescribed by the laws."

Indeed, the statute upon any reasonable construction did not contemplate action without process. By the twenty-second section, places where intoxicating liquors were sold, bartered, or given away, or where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors were kept for sale, barter, or delivery, in violation of the act, were declared to be common nuisances, and if the existence of such nuisance were established, either in a criminal or equitable action, upon the judgment of a court or judge having jurisdiction, finding the place to be a nuisance, it was to be abated and the liquors and accessories taken possession of and confiscated.

Under section twenty-three, such places might be enjoined and abated by action in the name of the State, careful provision being made that orders for the search and seizure of the goods should only be issued upon an affidavit stating or showing that intoxicating liquors particularly described were kept for sale, or sold, bartered, or given away on the premises, particularly describing the same.

The twenty-fifth section provided that liquors in transit intended for unlawful sale in the State might be seized and proceeded against as if "unlawfully kept and deposited in any place," and were therefore not subject to seizure without pre