The herald and news. (Newberry S.C.) 1903-1937, October 24, 1905, Image 1
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VOL. XLIIL NO. 123 NEWBERRY4 S. 0., TUESDAY OCTOBER 24, 1905.TWCAWEK$10YR
TESTING BRIGE LAW
Ni FEDERAL COURT
DISPENSARY ADVOCATES AT
TACK BRICE LAW.
Judge Pritchard Grants Order Re
quiring Board of Control of
Union County to Show Cause
Why Dispensary Should
not be Reopened.
-Asheville, N. C., October 19.-Unit
ed States Circuit Judge J. C. Pritch;ard
today issued an order directing R. M.
Fincher, W. D. Wilkins and Elzie
Kelley, the Union county board of
control, to appear before him October
31 to show cause why mandamus
should no7t be granted to J. G. Howell,
requiring the board of control to open
- the dispensary in Union and to rein
state Howell in the office of dispenser,
and give him possession thereof.
This action, whioh constitutes a test
of the Brice bill, is 'brought by J. G.
Howell, the relator, through Bellinger
& Welch and John -G. Capers. The
application to Judge Pritchard was
made by those attorneys.
Columbia, October ig.-R. H.
Welch and John G. Capers, represen
ting J. G. Howell, dispenser at Union,
appeared before Judge Pritchard at
Asheville to-day and obtained an order
for a hearing in the case brought
against the Union -county board. of
control, charging them with violating
the consitution of South Carolina and
the United States for thle enforcement
of the Brice law.
The petition sets forth in part as
follows:
J. G. Howell, relator, vs R. M. Fin
cher, W. D. Wilkins and Elzie Kelley,
as the county board of control for
Union county, respondents.
The relator, J. G. Howell, would re
spectfully show to the court:
Section i. That* he is a resident
and taxpayer of, and the owner of
both personal and real property in
Uuion county, Soubh Carolina, subject
to taxation therein, -and the head of a
family, 'having children of .stchool age,
who are -duly attending the public
schools of said county.
Section 2. Thar the general assem
bly of said state passed an act entitled
"An Act to prohibit the manufacture
of intoxicating liquors as a beverage
witin this State, excep' as herein pro
vided,"and approved December 24,
1892, and 'by its terms 'caking effect
July 1, 1893.
* ThesDispensary Act.
Section 3. That thereafter the gen
eral assembly of the said state passed
~an 'act, approved March 6, 1896, en
titled "An Act to provide for the elec
tion of the Stare board of control, and~
to further regulate the sale, use, con
sumpt'ion, transportation and disposi
tion of intoxicating and alcoholic li
gours or liquids in 'S:ate and prescribe
further penalties fpr the violation of
. We dispensary laws, and to enforce
the same," which was a general
amendment by way of substitution to
ihe above mentioned act of 1892,
whic'h act, as amended from time to
time, was incorporat'ed int'o the Crimi
nal Code of 1902 of said state, a print
e'd copy of the sectcions of which con
taining t'he same is hereto annexed as
Exhiabit A, Section 7, of th!e Act of
1896, being 'Section 563. of said Crimi
nal 'Code, and is as follows: (Here
the dispensary law is quoted and the
Price law.)
Section 5- That the state of South
Carolina is divided into forty-one
counties, among which are Union,
Marlboro, and Greenwood. Union and
Marlboro 'having been established and
organized as counties prior to July 1.
~893, the -date upon wh'ich the dispen
'ary law hereafter referred to, went,
into effect, and Greenwood 'having
been formed and established as a
county in 1897.
*Section 6. :That prior to July ;,
193, "-the sale of alcoholic liquors was
prohibited" by law in the county of
Marl-boro, while in the county of
Union prior to said date the sale of
alc'oholic liquors was permitted by
law.
Section 7. Thtat in the said counties
of Greenwood and Marlboro no dis
pensary for The sale of alcoholic Ii
quors has ever been established or ex
isted under said dispensary law above
referred to.
Section 8. That by virtue of the
authority of the last amendatory act
albove quoted, commonly called the
Brice bill, amending Section 7, of the
Act of 1896, above referred to, and
found as Section 563, of the Criminal
Code of South Carolina, 1902, an elec
tion, was on the-day of-, 1905, ibeld
in the county of Union., whereby was
submitted the question of dispensary
or no dispensary to the qualified elec
tors of said county, and at such elec
tion the majority of the ballots cast
declared against dispensary, where
upon the dispensaries already estab
lished and exis-ting in said county
were closed, in accordance with the
provisions of said Act.
Section 9. T,hat the respondents, R.
M. Fincher, W. D. Wilkins and Elzie
Kelley, prior to the times hereinafter
mentioned were duly elected and qual
ified as the -county board of control
for Union county, under the dispen
sary law, and have ever since been and
now are, such county board of con
rol, R. M. Fincher being chairman,
and W. D. Wilkins being secretary of
the said board.
Section io. That your petitioner,
on or about the 18th day of Maroh.,
1905, was duly elected for the term
of one year -dispenser for the dispen
sary located witbiii the town of Union,
in said county, taking possession of
said office on or about April i of said
year, his term then -beginning, and re
ceived his commision from the gov
ernor of the state for the said office
on the 27bb day of June, the said year,
and coiftinuing to exercise the powers
and duties and to receive the emolu
ment's thereof until -rhe-day of-,
1905.
Closed The Groggery.
Section 11. *That the respondenits,
as such county board of control, act
ing solely under what they consi-dered
to.'be their duty, and who as t'he result
of said election, under and by virtue
of the 'said Brice bill, abov- referred
to, and by direction thereof, and with
out any pretence of any charge of
misconduct on the part of the relator,
did, on the-day of-. 19o5,*close the
said dispensary, located in the town of
Union, dispossessed the relator of his
said office and t'he emolumentcs of the
same, against 'his protest, and not
withstanding the -fact that he was then
ready and desirous of continuing pos
session of said office and pe.rforming
the duties thereof, and he is now de
sirous aind willing so t.o do. That -he
salary and emoluments of said office
were fixed at eighty dollars, ($8o) per
month.
Section 12. T'h'at the relator re
spectfully alleges an.d suggests to this
Honorable Court that the said act of
1904 known as the Brice 'bill, is tin
constitutional, null and void, contra
vening Article XIV, Section I, of the
amendments to the cotlstitution of the
United States:
First. In that it deprives The tax
payers of Un'ion county of their prop
erty without due process of law.
(A.) Because the said act is not a
valid law of the state. inasmu'h as it
levies a tax on all of the taxable prop
erty- in certain counties for the en
forc.ement of a general state law, and
exempts from said levy other coun
ties -placed in the same circumstances
and unfder like condi:tions as to the
diNpnsary law and the enforcement
thereo f. Thus violating Article X,
Section. &,of the constitution of thea
state of South Carolina, wherein is
provided "'the general assembly shall
provide by law for a uniform and
As To School Funds.
(B.) Because the said act is not a
valid law of the said state for the
reason that it provides that any coun
ty voting out a dispensary shall noi
thereafter receive any portion of the
surplus funds that may remain of the
dispensa-ry school funds, after the de
ficiencies in tihie various county school
funds have been made up, as I)rovided
by law, "but leaving the said surplus
funds to be distributed among -che
c-ounties retaining the dispensary,
Marlboro and Greenwood counties, in
which no dispensary has ever been es
tablished-, which is in conflict with
Article XI, Section 12, of the con
3titution of South Carolina. which
provides, inter alia, that such surplus
shall be devo'ted to public school
purposes, and "proportioned as the
general assembly may determine."
There being now in the hands of the
;tate a large amount of such -said
;urplus funds, and which was there be
.ore voting out the said dispensaries
,n said county, and in the surplus
funds the citizens and taxpayers of
;aid county had a vested interest and
)roperty right before the attempt was
nade under the guise of law to de
)rive them of the same.
(C.) Because 'the said act is not a
ralid law, for the reason that the gen
ral assembly -has a~ctempted to enact
i special law concerning a subject
where a general law could be made
ipplicable, thereby violating Article
VII, Section 34, of the constitution o-I
South Carotina, where it is provided
n Subdivision X:I where a general
aw -can be made applicable no special
aw shall be enacted."
"Equal Protection."
Second. In that it denies to all
>ersons of Union county and of all
)ther counties ithat have or may 'here
ifter vote out the said dispensary,
,hereunder the equal protection of
-he law: (A.) Because the said act
evies a tax of one-half of one mill
.-pon every dollar of the value of the
:axable property in said county, and in
!ve.ry other county vo,ting out the
lispensary tihereunder, for the purpose
>f defraying the expenses of the en
orcement of the said dispensary law
:herein, ,thereby attempting by its
rery terms to levy a tax upon the tax
rble property of certain counties to
fefray the expenses of the enforce
nient of a general state law therein
~nd exempting fi-om sai.l levy other
:ounties placed in the same circum
~tances and 'under like conditions as
o the said dispensary law and the en
~orcement 'there, thus violating Ar
icle X, Section 1, of the consitution
>f South Carolina wherein is provid
~d: "The general assembly shall pro
ride by law for a uniform and equal
-ate of taxation," etc.
(B.) Because in the county of
Jnion and other counties voting out
:'he .dispensa'ries for the enforcement
>f the General St'ate dispensary law,
vhich prohibiits the sale in any part of
:he state, of alcoholic liquors, except
n dispensaries, the state levies a spe
:ial and continuous tax on all prop
~rty for defraying 'the expenses of the
~nforce'ment of the dispensary in said
:ounty, and protecting the persons
:herein from violations of said dis
'ensary law, whereas, under and by
:he general provisions of said law,
e 'persons within the counties of
3reen'wood and 'larlboro, where no
lisp)ensaries have ever ibeen establish
ed. and where no alco'holic liquors
~re legally sold, are afforded the pro
:tction of said dispensary law, to
zether with coumnties 'having dispensa
-ies, without any special levy of tax
~s for the enforcement of the same,
nor are they ,burdened with any other
:oflditions for the enforcement of
th same; t'hus denying to persons in
Union -county the equal protection of
the law aff' rded the persons in Marl
boro and Greenwood county, although
situated alike.
Greenwood and Marlboro.
(C.) Because said act provides 'that
'Any county voting- nout a dispensary
shall not thereafter receive any por
tion of the surolus funds t-%at may re
main of the dispensary school funds,
after the deficiencies' of the various
county school funds have been made
up, as provided by law, but leaving;
the said surplus funds to be distrib
uted among the counties retaining the
dispensary, and Marlboro and Green
wood counties, in which no dispen
sary has ever been established, which
is in conflict with Article XT, Section
12, of t;he constitu'tion of South Caro
lina, which provides, inter alia, that
such surplus funds shall be devoted to
pu'blic schools and apportioned as the
general assembly may determine,"
there being in the hands of the statel
a large amount of such surplus funds
and which was there .before the voting
out of said dispensaries in said coun
ty, in which said surplus funds the cir
izens and taxpayers of said county
had a vested interest and property
right before the amendment was made
under the guise of law to deny to
them the proper proportion of said
-fund, and to still give ic to Marlboro
and Greenwood counties. and the oth
er counties not voting out the dis
pensary, said Marlboro and Green
wood counties being in the same cir
cumstances and under like conditions
as to the dispensary law and the en
forcement as the said county of Union
and the other counties voting out the
dispensary law.
Subsequent Elections.
Section 13. That in the counties ot
Cherokee, Pickens, Newberry, York
and Lancaster, Darlington and Mar
ion, elections have already been held
under said Act of 1904, commonly
called the Brice bill. wherein was sub
mirted to the qualified voters'thereof
the question of dispensary or no dis
pensary, and at said elections in said
counties the majority of th-e ballots
cast in each were found and declared
to be against the dispensary. Where
upon the dispensaries already estab
lished and existing in said counties
were closed in accordance with the
provisions of said ac7.
Section 14. That by reason of the
closing of said dispensary located in
town of Union, Union -county, to the
office of dispenser of which t<h:e relator
had been, as alleged hereinbefore,
duly elected and commissioned for a
term of one year, which term 'had not
expired wheni said dispensary was so
closed, and has not'now expired, and
being dispossessed of his said office.
and the emolumen-ts thereof. ever
since said closing of said2 dispensary,
the relator has been and is now being
deprived of. the emoluments of said
office and 'his property rights therein
without due pirocess of law, contrary
to Article 14. Section 1, of the .amend
ment to the constitution of the United
States of Ameri.ca, which, provides
that no state shall "deprive any per
son of life, liberty or property wir.h
out due process of la-w."
WhTIerefore, the relator prays that
this Honorable -Cournt will issue its
writ of mandamus to the said respond
ents. R. Mv. Fincher, WV. D. Howell
and Elzie Kelley, commanding them
to open the said dispensary located
in the town of Union, South Carolina.
and to reinstate the said relator in
his office and give him possession of
thes ame, and for such other and fur
ther relief as may be proper.
-Signed. Bellinger & Welch. John G.
Capers. attorneys for relator.
No statement is made as to those
back of this movement. A. H-. S.
Mrs. Agnes W: Quarles, widow of
R. P. Quarles, of Abbeville county.
died at Tumbling Shoals, Laure ns
coumly. at the home of ther daughter.
Mirs. WV. B. Sullivan, last~ Thursday at
the adivanced age of ninety years.
G. Raymond Berry t.he absconding
superintendent of educa.tion of Marion
cou;zy, has been returned from Tam
pa. Florida. and lodged in the jail at
Marion. T-here are about fourteen
true bills retu,rned against him on
quite a number of charges, chiefly
A. C. JONES TALKS
ON PROHIBITION
IS OPPOSED NOW AS IN PAST
TO ALL NOMINATIONS.
He Does Not Object to Voting Out
the Dispensary Under Brice Law
and Is not Opposed to Local
Option Principle.
Newberry, October 19.-In view of
the conference n1hich was held re
cently in Columbia by the prohibition
ists and in view of the fact that Mr.
A. C. Jones was not present at this
conference, and in view of the further
fact 'chat 'Mr. Jones has for a long
number of years been a consistent pro
hibitionist and was active in matters
pertaining to the advancement of the
cause, and in view of the,still further
fact that Mr. Jones announced him
self several months ago as a can.di
date for governor, your correspondent
called on hinr and asked him if he had
observed that the prohibitionists had
been holding a conference in Colum
bia, and that one of them whosat
tended this conference had, in the pub
lic press, called upon the Hon. Joseph
A. McCullough, of Greenville, to make
the. sacrifice necessary to make the
race for governor, and that another
member of this conference, also an
editor, had endorsed this suggestion,
and claimed to have done so several
months ago. Mr. Jones was asked if
he would care to make a statement, or
if he had anything to say in reference
to this conference, and what his atti
tude as a candidate for governor
would be towards the prohibitionists
organizing, suggesting and putting
forth a candidate for governor. Mr.
Jones -readily consented to talk and
replied as follows:
"Yes, I read tihe newspaper accounts
of it, and while I don't know positive
ly who called itt I think it was called'
by Mr. Joel E. Brunson's friends. I
noticed -that Mr. C. C. Feattherstone,
Joseph A. McCullough., James A.
Hoyt, the Rev. Louis J. Bristow, John
L. McLaurin and Mir. W. H. Wallace
composed the caucus.
A Former Convention.
"Mr. Brunson has never forgiven
me for obeying the state democratic
executive committee in 1898, when I
as chairman of the prohibition dem'o
ratic state executive committee, was
informed that 'the suggestion of the
candidates 'by the State Prohibition
convention was contrary to and in
violation of t*he constitution of the
democra'tic party of the state. You
will remenmber that before this 1898
convention met a number of the pro
hibitionists wrote to the members of
thie stare democratic executive com
mittee and the anembers of the United
States senate and House for their
opinion as to whether they had the
right to meet in convention and sug
gest a ticket to be voted for by the
prohibitionists in the 'democratic pri
mary. :A majority of th.ese, replying
to them, told them that tlhey did. I
warned them against such action'at
the time, and told them that a new
oommit:ee would ~be elected in the
spring or early summer, and that that
new committee would say that the
ticket suggested or nominated by
them would be declared irregular and
would have to be withdrawn, and that
it would be a mistake to do it. The
convention was -held and a ticket sug
geted, and I was electe'd to succeed
Mr. L. D. GChildls as the chairman of
the state prohibition democratic exec
utive .committee. The State Demo
cratic c :nvention me: very soon af
:erwards. elected a new committee, as
I predicted, declared the suggested
ticket of the prohiibitionists irregular
and in violation of the constitution.
"Thie State executive committee saw
nothing they could do (as they were
all democrats) but to withdraw the
suggested candidates, and to leave
e.hm free to bhecome .candidates as in