The herald and news. (Newberry S.C.) 1903-1937, August 06, 1907, Page THREE, Image 3
UDGE GARY ON
STATE RIGHTS
DCIDES FOREIGN CORPORA
TION IS CHARTERED.
This Opinion is in Direct Conflict:
With a Recent One From Judge
Pritchard.
Columbia. August 1.-Judge Ernest
Gary. of the circuit court, today ren
-dered a. most important decision, in
volving the right of an Inter-State
railroad to have damage suits and
other cases transferred from the state
to the federal courts on the ground
that they are foreign corporations.
The case is that of W. C. Geraty, of
Charleston, against the Coast Line
for damages for over $2,000 and the
judge finds that under the constitu
tion of this state all roads have to be
chartered under the laws of this state,
and that the Coast Line is estopped
from contending that it is a foreign
corporation, because if it establishes
this contention it is being operated in
South Carolina unlawfully.
In a similar case in North Carolina
recently Judge Pritchard decided the
other way so far as North Carolina
was concerned in the case of the
Coast Line.
The decision is on a question long
disputed in this state, and is of the
highest importance. The decision fol
lows:
The State of South Carolina, Coun
ty of Charleston, Common Pleas. W.
C. Geraty, plaintiff, against Atlantic
Coast Line Railroad Company, de
fendant. The defendant made a mo
tion before me to set aside the ser
vice of the summons herein, on the
ground that the defendant is not
a corporation, organized under the
laws of the State of South Carolina,
as alleged in the complaint.
The view which I take of the ques
-tion involved, renders unnecessary
th consideration of the numerous
phases of the law, discussed by coun
sel.
Article 9. Section 8 of the consti
tution of South Carolina, is as fol
lows: "The General Assembly shall
not grant to any foreign corporation
or association, a license to build,
operate or lease any railroad in this
state; but in all cases where a rail
road is to be built or operated, or
is now being operated in this state,
and the same shall be partly in this
state and partly in another state, or
-in other states the owners or projec
tors thereof shall first become incor
porated under the laws of this state;
nor .shall any foreign corporation or
association, lease or operate any rail
road in this state, or purchase the j
same or any interest therein. Consoli
dation. of any railroad lines and cor
porations in this state with others,
shall be allowed only where the con
solidated company shall become a do
mestie corporation of this state. No j
general or special law shall ever be
passed for the benefit of any foreign i
corporation, operating a railroad un- 1
'der an exi.ting license of this state, ort
under any exisiting lease, and no
grant of any right or privilege, and
no exemption from any burden shall i
be made to any such foreign corpora- I
tion, except upon the condition that
the own4rs or. stockholders thereof <
shall first organize a, corporation in e
this state under the laws thereof, and r
shall thereafter operate and manage t
the same and the business thereof.'' t
The Atlantic Coast Line Railroad i
company (which was incorporated un- g
-der the laws of Virginia) and the
Savannah, Florida and Western Rail- I
way Company entered into articles of I
agreement for the consolidation and
merger of the said companies; and Is
thes aid articles of agreement werea
confirmed by the stockholders of
each of said companies, at separate s
meetings held, in pursuance of law r
and after due notice.
The stockholders of each of said t
companies, at theiL respective meet- j
ings, adopted a resolution ''that the
State of South Carolina be requested' a
Sto issue to Henry Walters, Warren G. q
Elliott. James J. Lucas and Christoph- t
er S. Gadsden and such other persons i:
as may be, or hereafter may become, q
associated with them as the owners r
and stockholders of the merged, unit- c
ed and consolidated company and o
their successors, a charter as a merg- t
ed, united and consolidated body poli- 3
tic and corporate. in perpetuity, un- n
der the name of the Atlantic Coast v
Line Railroad Company, having, pos- v
sessing, holding and enjoying, each, t
every and all of the rights, powers, I
privileges, immunities and franchisese
of every nature whatsoever, set forth, L
in such articles of agreement and con- o
solidation, and each and every and s
all of the rights, powers, privileges, e
immunities and franchises of every
atuire wvhatsoever granted to, hold,
ossessed or enjoyed by each of the
constituent corporationS merging, I
uniting and consolidating into the r
~tlantie Coast Line Railroad Corn- r
any not in conflict with the terms I
;i p oik ID uuI s o L itd atr lezs of
agreeimeiit and consi-lidation.
These facts are set forth in the cer
tificates of the secretaries of said
companies, filed with the Secretary
of Statc. when application was made
for a el arter embodying the forego
ing provisions, which was duly issued
by the Secretary of State on the 13th
of May. 1902.
-Chapter XLIV of the Code of Laws
sets forth the conditions upon which
foreign corporations are permitted to
do business in this state.
Sectioi. 1.793. of said cbapter, pro
:ide-; thai " when a ior(..gn corpora
ion conp;ies -.ith the provisions and
requiriemnts of this elapter it shall
ipso facto become a domestic corpora
tion and shall enjoy the rights and
be subject to the liabilities of such
domestic corporations; it may sue and
be sued in the courts of this state and
shall be subject to the jurisdiction of
this state as fully as if it were origi
nally created under the laws of the
State of South Carolina."
Section 974 makes it unlawful for
any foreign corporation to do busi
aess or attempt to do business in this
state without first having complied
with the requirements of said chapter,
and provides a punishment for viola
tion of said provisions..
It is not denied that the defendant
is operating its road in this state.
In 13 Ene of Law, 895, it is said:
"When a foreign corporation avails
itself of the privileges of doing busi
ness in a state whose laws authorize
t- to be sued there, by service of pro
ess on an agent, its assent to such
service will be implied. It waives
the right to object to the mode of ser
vice of process, which the state law
ithorizes. The fact that it has not
At to appoint and designate an agent
for service of process is wholly imma
:erial. It is stopped by its actions
xrom denying that it has complied
with this requirement.
The defendant is, therefore. estop
>ed from contending that it is not a
lomestic corporation, for if it is not
hen the operation of its railroad in
-his state is unlawful.
Public policy demands that the de
endant, under the circumstances,
hould be regarded as a domestic cor
)oration.
From the fact that it is doing busi
ess in this state the presuniption
rses that it has complied with the
~onditions upon which it was lawful
or it to operate its railroad.
I Elliott on Evidence, Section 106;
2 Enc of Law, 1,280.
The motion is, therefore, refused.'
Ernest G-ary, Circuit Judge.
1st of August, 1907.
mRSHAW ELECTION TLLEGAL.
tate Board of Convassers Decides
The Recent Dispensary Blection
.was Ellegal.
ews and Courier.
Columbia, August 1.-The state
oard of canvassers today unanimous
v decided that the dispensary elec
ion recently decided by the Kershaw
ounty board of canvassers to have
one for prohibition by a majority of
4 was illegal on account of irregu
arities, which means that the dis
ensaries in Kershaw are to remain
pen until the supreme court decides
therwise. The prohibitionists gave
otice of appeal to the supreme court
rough certiorari proceedings, and
he papers have all been prepared,
Lttorney General Lyon having been
iven notice before hand.
Following is the report of the state
oard in deciding against the county
oard:
'We, the state board of canvas
ers. find the facts in this case to be
s follows:
'Upon the question of sale or no
ale of liquor two ballot boxes were
rovided and used at each voting
'lace in the county. Upon one of
Ihe ballot boxes were the words, 'For
~ale,' and upon the other box the
ords, 'Against Sale.' Persons fav
ring the sale of intoxicatns were re
ired to cast their ballots in the
ox labelled 'Against Sale.' A sim
ar arrangement of boxes and re
irement as to casting ballots were
rovided for voting upon the question
f manufacture or no manufacture,
ne box being labelled 'For Manufac
are' and the other box,, 'Against
lanufacture.' Upon the question
f application of profits two boxes
-ere provided; upon one was the
'ords. 'For School Fund,' and upon
e other the words, 'For Roads and
iridges.' tle voter being required to
ast his vote in the box bearing the
ibel corresponding with his wishes
r vote. The clerk of court of Ker
saw county issued certain certificat
of which the following is a copy:
"Clerk's Certificate of Rezistra
"I, I. P. Hough. clerk of court for
ershaw county. do hereby certify
bat the name of W. R. Hough ap;
ears up~on the book in my office as~
ao 19, duly regitered, in Buffalo
Toxvil.i"1p. pior to Jailuary .. 198,
under Arliele 2. Section 4, Subdivi
sion C. of the State Constitution.
"Camden. S. C., this 29th day of
May. A. 1). 1907.
"I. C. Houh.
"Clerk Court. Kershaw County.
"It was shown that in eight boxes
144 persons were allowed to vote up
on such certificates in this election
and without registration certificates
provided by law. That the majority
of votes cast upon the question of
sale or no sale were against sale, and
were 84 in number. That the ma
jority of votes cast upon the ques
tion of manufacture or no manufac
ture were for no manufacture, and
were S1 in number. The arrangement
of the boxes and the use of the cer
tificates of the clerk of court above
referred to were pursuant to general
instructions, issued to managers of
election at eaeh precinct by the com
missioners of election, a copy of the
instructions being hereto attached
and made a part of the findings of
fact by this board. Each voter was
allowed to vote upon the question of
sale or no sale and the application
of profits as provided for in Sections
2 and 3 of the dispensary .la*, and
also upon the question of manufac
ture or no manufacture as provided
for in Section 37 of the dispensary
law, upon taking the required oath
only one time, and as for one elec
tion, and only one set of managers
served at each precinct. That only
one petition was filed, in which an
election upon the two questions of
sale or no sale and manufacture or
no manufacture were prayed for.
''Upon the facts above set forth
the state board of canvassers find
that the said election was illegal, in
that Section 3 of the dispensary law,
regulating the number of ballot box
es, was not observed and that the
secrecy of the ballot was thereby de
stroyed. Also that it was contrary
to law to allow persons to vote on
the certificates of the clerk of court,
and without registration certificates,
as provided by law. It is not deem
ed necessary to consider the other
fndings of fact in this case.
"It is ordered that the said elec
tion be. and is hereby, declared null
and void and set aside."
ALICE CLIMBED A TREE.
The President's Daughter Lives Up
to the Reputation of Her
-Father.
Minneapolis Journal.
It is whispered, and only whisper
ed, that M.rs. Nicholas oLngworth,
the former Alice Roosevelt actually
limbed a tree out in Yellowstone
Park and according to the story
which has reached Minneapolis, it
was no small tree, and Mrs. Long
worth went way to the top. What is
more. the story says, she did it just to
show that she was,her father's daugh
ter and to ''stump'' her husband.
The Longworths passed through
Minneapolis recently on a trip to
Yellowstone Park. What the trip
through the park lacked in formality
and ceremony it made up in jollity
and good fellowship, according to
Charles Phelps, a New York man, who
was at the West Hotel today.
According to the story, some one in
the party remarked that Mrs. Long
worth was certainly able to live up to
the reputation of her father so far as
being an expert at ''roughing it''
was concerned, and somebody else ex
pressed a doubt that Congressman
Lo ugwoith could keep up with his
wife if she got started on some real
Western stunts. That statesman, who
had been doing his best to show that
his heart was still light, remarked
that while his wife might have done
some things in the way of roping
steers and strangling catamounts
with her bare hands before her mar
riage, which he doubted his ability to
equal, he thought that under present
conditions he would refuse to admit
any superiority in such things on the
part of his better half.
Without a word, Mrs. Longworth
according to the stary, remember
jumped from the carriage, which was
moving along at a lively rate, grasped
at the low branch of a tree, and be
fore the startled party had time to
eae was scrambling up the trunk,1
'shinning'' and pulling herself up
and over hand.
''It's up to you 'Nick' '' cried the]
breathless, but smilling and triumph
ant, daughter of the President.
'Nick,'' according to the story,
bought cigars.
Heeding the Warning.
From the Springfield Republican.
Followiing his famous address to
the effect that if the states did not a
do their dunties in the control of cor
porations the general government 3
would have to do it fo them. Secre- a
rv Roont shonil1 non- spenk on the
~.iet of what happens to states
w1iieh have tried to follow this ad
ministration warning.
Government by injunction was bad
lv damaged in the North Carolina
collision.
Neighbors Got Fooled.
"I was literally coughing myself to
death, and had become too weak to leave
my bed; and neighbors predicted that I,
would never leave it alive; but they got I
fooled, for thanks be to God, I was in
duced to try Dr King's New Discovery.
It took just four one dollar bottles to
completely cure the cough and restore
me to good sound health," writes Mrs.
Eva Uncapher, of Grovertown, Stark Co.,
Ind. This King of cough and cold cures, I
and healer of throat and lungs, is guaran-|
teed by Wm. E. Pelham & Son, Drug
gists, Soc and $i.oo. Trial bottle free.
Those floods in the West are of
fering candidate Fairbanks fresh op
portunities.
Rising From the Grave.
A -prominent manufacturer, Wm. A
Fertwell, of Lucama, N. C., relates a
n:.ost remarkable experience. He says.
"After taking less than three bottles of
Electric Bitters, I feel like one rising
from the grave. My trouble is Bright's
disease in the Diabetes stage. I fully
believe Electric Bitters will cure me
permanently, for it has already stopped
the liver and bladder complications which
have troubled me for years." Guaran
teed by Wm. E. Pelham & Son, drug
gists. Price only 5oc.
If they want to bury the deposed
Emperor for good, they migh make
him vice president of Korea.
Hunting for Trouble.
"I've lived in California 20 years, and
am still hunting for trouble in the way
of burns, sores, wounds, boils, cuts,
sprains, or a case of piles that Bucklen's
Arnica Salve won't quickly cure." writes
Charles Walters, of Alleghany, Sierra Co.
No use hunting Mr. Walters, it cures or
money refunded at Wm. E. Pelham &
Son's drug store. 25c.
Maxim Gorky says the Americans
are a "silent, gloomy people." Evi
dently none of them told Max just
what they thought of him.
A Valuable Lesson.
"Six years ago I learned a valuable
esson," writes John Pleasant, of Mag
nolia, Ind. "I then began taking Dr.
Ring's New Life Pills, and the longer I
take them the better I find them " They {
please everybody. Guaranteed at Wmn.
E. Pelham & Son, druggists. 25c.
FE To women for collecting
names and selling our novel
FREties, we give Sig Premiums.
Send your name to-day for our new plan
>f Big Profits with little work. Write
o-day. Address C. T. MOSELEY Pre
mium department, 32 E. 23d Street,
New York City.
TH E VICTOR.
The popularity and reputation
that the Victor enjoys is due to its
solid-as-a-rock construction. The
use of the highest grade of. mate
rial and skill, mechanical and mu
sical, that the world affords, makes a
it what it is..
For the Cottage.
For the Mansion.
The prices of the Victor range
from $io.oo to $1oo.oo, payable in
easy monthly installments if desired.
HEAR THE VICTOR AT
SALTER'S
Art and Variety Store,
MJain Street, Newberry, S. C.
New Market.
I have opened a first class t
Meat Market on Friend street,
-iext door to the Observer office,
mnd am prepared to furnish
:hoice meats of all kinds.
All orders entrusted to me o
wil1l receive my personal at
ention.
Come to see my market. G
t is the cleanest and most up
o-date market in Newberry. c
J. A. WRIGHT, d
Friend Street. d
Phone 232.
e:
Barbecue. a
I will furnish a first class barbecue b
t Jno. P. Wicker's August 22, to be ~
repared by J. A. Graham and H. M.
tieker. Everybody come and enjoyy
a'ood dinner.
W. L. Graham. 1
0*
EGG-O-SEE-Fresh and crisp 10c.
S package.
RICE-15, 18 and 20 lbs. for $1.00.
KARO SYRUP-10, 25 and 50c. cans.
HOUSEHOLD AMMONIA-3 Bot
ties for 25c.
PARCHED COFFEE-Our stock of
Parched Coffee is the most com
plete in town, and varying in price
from 15 to 35c. per pound.
TEA-Gunpowder, Young Hyson,
-Oolong and Mixed 40 to 80c. per lb.
Our stock of Canned Fruits, Canned
Vegetables, Canned Meats and Pickles
S+
is the largest and most complete ever
S offered here. Our prices are as low
as goods of such quality can be sold.
Our stock of staple and fancy Gro
ceries is full, and we cordially invite
you to to call and inspect same.
Jones' Oroceru,I
Fant's Grocery Old Stand.
Sooo880 0+8+0t
Barbecue at Sligh's.ThSeeto
Mr. Jno. C. Mills will furnish a jri ,y
~arbecue at Sligh's on August 17, theAU rIL
icasion being the meeting of theAB
armers' union. Prominent speakers
vil be present and will deliver ad
resses. The price of dinner will be NwRvae
l5 ents and 40 cents. Everybody is
nvited and a good dinner is guaran
eed.__ FRE V
CHEAP RATES
Via Southern Railway. Jamestownaneusiecmlioadeegn
er-centennial Exposition, Nrfolk, jwl.A potnt o vr o
On aceount of the above occasionony.
he following instructions will gov-Tedieiosadrc.foo
rn the sale of round trip tickets to tmn alls opeini h
~orfolk, Va. from Ntwberry, S. C. sce oggaddb h a~
Season ticket-$19.55. This ticketmndofte RINLSa.
will be sold daily April 19th to andGRK.
neluding November 30th, 1907, finalThswobaedftryr f
ate to leave Norflok returning De- wr n tgetepne tI h
~ember 15th, 1907. mto sdb h ars n ot
60 day ticket-$16.30. This ticket batflwmno uoe
vill be sold daily April 19th to andHudesoAmrcnwenh'
neluding November 30th, 1907, final nwuei aeepesdterdr
ate to leave Norfolk returning six-lgtadsaifcin
y (60) days from aete of sale and ydeoan
ot lated than december 15th, 1907. Thsect
Fifteen day ticket-$14.30. Thissmpetfolwadiwllavyo
icket iwll be sold daily April 19th eexeeofcam,cotis?
o and including November 30th,blahsndfrvrgeyoaba
.907, final date to leave Norfolk re- ~flcmlxo n reyu kn
urning fifteen (15) days from date rmpmls a oo,b.chas
f sale.et.Itloeswohtoyumn
Coach Excusion ticket-$8.55. Thistnethpreweakyut ud
icket is not god in sleeping, 'Poul egeunedaonl-n f a
aan, or Parlor cars, and will be soldesdein
n Tuesday of each week during~ per-Weelyothsrn nema -
od of the exposition, final date to poi bv auatrn ot h
eave Norfolk returning ten (10)prcislsthnoeafwatoei
ays from date of sale.chreThreiesfeewt er
For routes, stop-overs, etc., writerng
rn call on us. I sagniers u imn
NOTICE.lygaate,vrdanyshp.
WHERES Sarh W.Calme, aslike Behe wiSecra etn of
rs, ha filedher PeitionwnRthis$2.00
orhahereautynis moreddesirabseGuar
ian or sid inor an thash bepexisreie comexwhn youndegn
NOW HEREORE otic is iv-ewrelsamp opornills Get veyo
ordran oobefnorh four a lisiexat
aTheodireccronstons rofisaiforiob
itaining atfaulpeessncomptereonedsttht
herig n ai ptiio wllbehamTis offe ithe forENAI andte
Sth undrsined n Wdnesay,Ti e olyasainedaftnas of ~n
u~ut 2st,190, a elven'c ok and tcn ur egpens.Iste
M. ~~endutoday oe thi Euoppe.unt
F.ndredschfmpeerican fomeottho
robteJuge orseberypolty t C.lo andOtSLlEaeo
July19t, 197. 32 fro2m r Stpee, New coork Citya.
etc. t lon-i wrt-toyoymny