The herald and news. (Newberry S.C.) 1903-1937, October 01, 1907, Page SIX, Image 6
STOLEN BONDS ARE GOOD.
feourt En Bailee Upholds Their Vali- <
dity?Court was Divided Seven i
to Six. 1
<
News and Courier.
Columbia, September 27.?The |
-court en banc tonight filed a decision 1
upholding the validity of the stolen ,
state bonds, the court being divided {
7 to 0. The bonds involved are the ,
following, though only one of them ]
was mentioned in this case:
$500 bonds, Nos. 15.1, 231, 371, 783, j
595 and 1,477; $1,000 bonds, Nos. I
507, 1,178, 1,800, 2,525 and 3,778. i
The court sal en bane today, call- '
ed for the purpose of hearing the ar- I
guments on two cases in which the 1
supreme court justices had evenly di- I
vided. In such cases, where the '
case is heard on appeal, I he decision 1
of the lower court is affirmed unless, ?'
as in one of I he cases heard today, (
there is a const it 111 ional point invol- {
ved. Rut when, as in the stale bond
case, I he case is brought in the orig- '
inal jurisdiction of I lie supreme court, (
it is necessary to call the circuit ;
judges to sit with jusices. ,
All I lie members of the supremo J
court were present and all the judges t
ot I he circuit court except judge
Ahlrich, who is on sick leave. Chief 1
Jusice Pope and Associate Justices <
Gary and Woods occupied the usual I
seats of the supreme court, while be- <
low, within the circular desk, sat the 1
following circuit judges: Danl/.lcr, of c
trie 1st: Wilson, of the 3d; Walls, of r
the 4th; Gary, of the 5th; Cage, of s
the (>th ; 1 Ivdrick, of the 7th; lv I ugh, f
of the 8th; Memmitigcr, of the 0th. 1
and Prince, nl the HMli. There being i
division was impossible. i
I he argument for the relator, I'M- i
ward hhrlich, of Coluiubia. in the s
bond case was made by Mr. W. T. Ay- 1
cock, of Columbia, while the Trcasur- t
or was represented by Attorney Gen- I
eral Lyon and Mr. j. William Thur- c
mond, of Edgefield. I
The case is an application for a t
Writ of mandamus to compel the. t
state treasurer to exchange a cor- t
lain stale bond for a certificate of (
stock. It will be recalled t.lfyil a 1
number oi slate bonds, returned for c
cancellation, were not cancelled by t
tho bond clerk, Daniel Zimmerman, 0
as required by law, but were again c
put into circulation by Zimmerman \
and evenutally passed into the hands i
of innocent purchasers. Mr. Ehrlich >
came into possession of one of these .?
bonds and presented it for exchange
for a certificate of slock, the ex- 1
cnange being refused on the ground t
that the bond was null and void, hav- <ing
been cancelled and fraudulently
reissued. The case was brought to (
tost the validity ot tliis and other 1
such bonds, a description of which t
has been advertised in the public 1
prints by the stale treasurer. e
No Cancellation Marks. I
The opinion of the majority is writ- 1
ten by Associate .lustice Jones and is ]
concurred in by .luslict Wood and I:
Circuit Judges Walts, Gage. Danl/.lcr, (!
Memminger and Wilson. After stat- |
ing the facts the opinion goes on to e
say: "No marks to indicate cancella- 1;
tion were ever placed upon said bond, v
although the statute expressly decalr- t
ed that such surrendered bond shall o
immediately, upon such surrender, be h
eancdled and !iJc<l by the stale treas- [[
urer with the permanent records of tl
his office. It is admitted that vela- t,
tor is a bona fide holder for value o
before maturity and without notice, n
The general rule of law is that a o
thiet ot personal properly cannot a
convey to a purchaser, however in- h
title to the stolen property as
against the real owner. Hut from the t<
highest considerations of public poli- c
ev (he law excects fro 111 tho rule no- p
gotiahie intsrunients ac(piired in good h
1 aith before maturity and without no-' h
tice. and makes the title of such hold- tl
er good aaginst the world." ! |.
I ue opinion goes on to say that
"the stale bond cases, 12 S. t(\, show
that a coupon bond of the slate, valid r
in its inception, is a negotiable sccur- v
ity, and the state issuing such 11 ego- t
liable paper incurs the same responirl- v
bilify which attach to individuals or f
corporations in such cases, p
"There is 110 question that the h
bond in question was not valid when
originally put in circulation, and it c
being admitted that relator is a bona s
fide holder thereof at this time, his a
title can in 110 wise be affected by n
the surrender of tho bond to the e
treasurer by some antecedent holder 71
and the subsequent theft by means of' v
which it was again put in circulation.
The method which the 'stale had 1
adopted to lake such bond out of cir- n
dilation, by cancellation, was not 1
complied with by thoao intrusted with
that duty by the slate. The direction 1
to cancel surrendered bonds was de- c
signed to prevent the very possibility 1
which has happened and the failure t
, , ' ' I' " -V- / '
?l (lie hiatc ((dicers to comply cannot
1)0 treated as a circumstance of no
consequence, for Ihe absence of
marks of cancellation make it possible
for the thief to put the bond in
nrculation."
Justice Jones considers the authorities
cited, and especially notices the
Virginia case quoted in the respondent's
argument, and then goes on to
>ay: "The real point of inquiry is,
idmittiiig a valid and strictly negotiable
paper in the hands of a bona fide
liolder before maturity, how far can
intervening circumstances affect the
litle ot the holder? The general rule
s that payment before maturity is
io defence against a subsequent bona
lide holder l.'or value before maturity.
It is the duty of the maker paying
lie commercial paper before maturity
o take reasonable precaution to present
its restoration to circulation by
tccidenf to fraud." Numerous eases
>n this line are cited.
State Responsible for Agent's Acts.
I' urthcr on Justice Jones says;
' I'lie principle that bona fide holder
' 'innot acquire title where there is
ibsolute want of power in the stale
>r its ollicers to issue negotiable pn>er
has no application in this case,
he bond in question having been originally
issued by due authority. The
udder is not claiming by any reissue
if the bond after its redemption, but
>y virtue of the original issue and
lis relation to it as a bona fide holder
inaffected by intervening facts. The
laim is not that the treasurer or any
no in his office had power to rcisuo
the bond, but that he was charg'd
with the duty to keep out of circulation
by cancellation and that his
ailurc to do so was the stale's failire.
It is true the doctrine of estoppel
n Pais does not apply to a sovereign
tale, and thai the state can only act
inder its constitution and through
he legislative enactments, and that,
herefore, contracts cannot be created
against the state except under sancions.
But here we have a bond of
he state issued by due authority of
he legislature which the representaives
ot Ihe stale failed to cancel, as
Iireeled by statute, and which is now
inder Ihe law merchant, the property
>f the relator. It may be further said
hat the right of the bona fide holdts
of commercial paper under circumstances
like these does not rest
vholly upon the law of estoppel, but
s grounded upon high public policy
vliieh is "subserved by making him
secure in his title."
The argument that to recognize the
>ond will be to increase the debt of
he state illegally is noticed in the
pinion and disposed of as follows:
"It is urged in behalf of the respondent
that the recognition of the
loud in question as a valid debt of
he state, when it has already been
'edeemed by the issue of stock in
xcliange, would result in increasing
he delq of the state in violation of
lie constitution. Section 11, Article
0, which forbids the general assetn'ly
from creating any further debt
r obligation without first submitting
he question to the qualified electors,
te. As declared in Whalcy vs Gailurd,
the obpect of the similar proision
in the constitution of 186R was
o place restrictions upon the power
f the legislature to contract debts. It
as no application to a case like this,
'he bond in question in the hands of
lie relator is no new debt at tempted
r> be created by the unauthorized act
f some officer or even by the judglent
of a court, but represents the
Id debt provided for in the statute,
ntliorizing the issue of that series of,
Alhls."
Having thus established the relit?r
s title to the bond, tin; opinion 1
imsiders the method proposed to comel
the recognition of the bond and I
olds that there is no other adequate
?grtl J'einedy than mandamus. It is
iierefore ordered that the writ should
<sue.
All Stolen Bonds Valid.
The effect of this decision is to
ecognize the validity of all the bonds
.bich were stolen from the office of
lie state treasurer, and the treasurer
.'ill be compelled to exchange them
or certificates of stock when present <1
by the holders who prove their
onest title thereto.
Action will also be begun to reover
the amount lost from the threo
tale treasurers, Hates, Timmerman
nd Jennings, or their bondsmen if
iceessary. It is very likely, howver,
that these three gentlemen will
unke good their respective liability
without litigation.
Those dissenting are: Chief Justice
'ope, Associate Justice ft. ft. Gary,
md Judges ftrnest Gary, Klugli,
Vince and I [yd rick.
The dissenting opinion by Eugene
Gary, after reviewing the history
?f the case, 'says that the first quesion
is on the riyht of mandamus of
lie petitioner, bringing up the case of
"SCION 10 FROM UU
OIMOUA nors
Loid, Ireasuer, wlioro ilio court held
Hint mandamus will only lie in enforce
a ministerial duty, not ;i discretionary
duty. Tl>^| opinion tlion
says that wlicn a bond is surrendered
and a certifieale of stock issued in exchange,
it lost its legality as ;1 <nl)sisting
oldiuat ion of the state and
cancellation was n<d a condition precedent
upon which the validity of
the certificate ot stock, which was to
he issued in exchange, depended, and
such requirement was required simply
to prevent traud after transaction
between the holder of the bond
and the state had terminated.
The question," the opinion continues,
"whether the petitioner is a
bona fide holder is not ministerial but
strictly judicial in its nature, and the
action of the treasurer is not subject
to review by this court. The attorney
rencral, however, did not u:ge this
(pies!ion nor the question as to the
aclual notice the holder had that the
bom! was not good, and however the
1)1 of the treasurer to issue a certificate
of stock is a question of power
and must be determined under the
act of 1892, which clearly shows that
the legislature had under contemplation
hut one issue of stock for a
bond, and the treasurer is not authorized
to make a second issue." The
bond.debt cases arc quoted |o uphold
this, where the court held that
bonds in the hands of bona fide holders
can only be regarded as valid
debts.
As to the issuance of additional
stock Justice Gary holds that it' the
Act be construed that way there
would be no reason why there should
not be a third and fourth issue. The
case as quoted above, that bonds issued
without authority of law are
\oid even in the hands of bona tide
holders, is (dearly law. The opinion
then holds that if the duty enjoined
upon the treasurer to issue a second
certificate is not ministerial the court
has not power in mandamus proceedings
and the action is in effect a suit
against the state, which is unconstitutional.
Marriage in the Catholic Church.
Tablet.
Christian marriage is not a man
work but a (rod work. It is not merely
a covenant ot two between a man
and a woman who take each other,
but a conenant of three-?the man and
the woman and God, who joins both,
and accepts into Ilis own immutable
hand the consent of both, and seals
it by an infusion of the lloly Spirit
into their souls. Christ has thus ex*
alted the contract of matrimony into
a sacrament of 'Christ act, one in
which He Himself is the united, bind-J
ing together two souls in a bond
which is a type of the union between
Himself and His church. Ilenco
the unity and indissolubility and sanctity
of Christian marriage, in which
(iod Himself joins together what man
may never dare to put asunder. As]
(iod s work it is God alone who can
make it or unmake it, and as a sacrament
of Christ it belongs to Christ j
and to Ilis church to fix the conditions
of validity nnler which that
work shall be effected. The "work is a
sacramental union of souls, and by
its ver> nature a matter of morality
and of spiritual relation of souls to
God and to each other.
Tu the creation of such a hond the
state, whose province is purely in
things temporal, can have no possible
competence. The state may indeed by
its legislation declare what are the
conditions under which it will accord
to marriages civil recognition and civil
effects as to civil status and inheritance
and other -temporal consequences,
but over the making or
unmaking ot (lit marriage heml itself
il has no control. It cannot make two
persons man and wife before God;
neither can it. unmake them. The stale
ol its own authority can no more
make a marriage valid or invalid in
the e,\ es ot Christ than it can forgive
sins or offer the sacrifice of tho
mass.
-MAN HEARTS."
E TO-NIGHT.
"Human Hearts."
The forthcoming visit of "Iluma
Hearts" will no doubt be wanul
I welcomed by the lovers of all that i
good in melodrama. "Human Hearts
is beyond ?111oslion, one of (lie stronj
| i'sl ami most interesting of plays tlui
j lias ever visited our city. The autl
lor belongs 11> that all too small g'rou
of dramatists, who understand ho
I to roach the heart and hold the al
tent ion of the audience. In "Iluma
Hearts" he has constructed a pla
that will never grow old. The princi
pie theme of the play is 'Hope,' an
has not some author written "Hop
springs eternal in the Human breast.1
'Hope,' the one bright ray of sui
shine that breaks through and illurr
ines the clouds of despair that a
most overwhelms poor 'Tom Logan'
the 'Hope' of a good, pure woman1
love; the 'Hope' of brighter days, tli
'Hope' of an honest man unjustl
accused ol crime, that the crimin:
will be detected and his yood nam
restored. The author has handle*
his subject with consumalc skill an
ease,that shows.the true dramatic it
stinet. The love interest is all r
absorbing. The comedy element i
introduced in such a way, that it b<
comes relevant to the story, and tli
climaxes arc worked out. naturall
and logically.
"Human Hearts" will be seen r
the opera house Tuesday, October :
Every bride should possess a lot c
patience and a cook book.
JAMESTOWN EXPOSITION.
Rates from Newberry S. C., as fo
lows:
Season Ticket $10.55. Sold dail
April 19th to November 30th.
GO Day ticket $16.30. Sold dail
April 10th to November 30th.
15 day ticket $14.30. Sold dail
April 10th to November 30th.
Coach Excursion $S.55. Sold eac
Tuesday, limit .10 days. Endorser
"Not good in parlor or sleepin
cars.''
Through Pullman sleeping cars, vi
Atlantic Cost Line Railroad companj
Write for a beautiful illustrate
folder containing maps, descriptiv
mater, list of Hotel, etc.
For reservations or any informa
tion, Add ress,
T. C. White,
General Passenger Agt.
W. J. Craig,
Passenger Traffic Manager,
Wilmington, N. C.
Worked Like a Charm.
Mr. I). X. Walker, editor of that spicj
tournal, the Knterprise, I.ouisn, Va.
jays: "I ran a nail in my foot last we el
and at once applied Ducklen's Amies
salve. No inflnmation followed; tlx
salve simply healed the Wound." Heal:
sores, burns and .skin diseases. Guanv
Seed at W. I\ Pclham & Son, Druggists
fa a soothing, healing halm containing
no drugs having a narcotic effect. It
RELIEVES
quickly and soothes the congested
membranes and thoroughly heals and
cleanses. Valuable not only for
CATARRH
but relieves colds, throat troubles,
hay fever, "stopped-up" nose, etc.
W Guarantee Satisfaction.
Buy 50 cent tube of Nosuna from
W. Q. Mayes & Prosperity Drug Co
8.. IJ"WSZS
Found at Last.
J. A. Harmon, of Li/.emore, West Va.
says: "At last I have found the perfec
pillgthai never disappoints me; and fo
the benefit of others afflicted with torpi<
liver and chronic constipation, will say
take Dr King's New I.ife Pills." Ouar
an teed satisfactory, 25c. at W. lv. Pelhan
& Son, Druggists.
NOTICE.
Notice is hereby given that we will
make a settlement on the personal
property of J. W. Humbert, deceased,
in the office of the Probate Judge for
Newberry county on Thursday,- the
10th of October, 1907, at 11 o'clock,
a. m.
M. M. Humbert,
Executrix.
Jno. M. Kinard,
Executor.
Sept. 9th, 1907.
CALL AT The Herald and News office
for -.school supplies.
n
New Market. ?
I have opened a first class i
u Meat Market on Friend street, j?
^ next door to the Observer office, it
?? and am prepared to furnish c
choice meats of all kinds. lb
[[ All orders entrusted to me 0
p will receive my personal at- ^
tention.
Come to see my market. ^
y It is the cleanest and most up
l" to-date market in Newberry.
J. A. WRIGHT, p
Friend Street. c<
[? Phone 232.
I- ?
How lo Remain Young. T
's To continue young in health and ?
0 strength, do as Mrs. N. 1\ Rowan, Mc I
Donongh, Ga., did. She savs: "Three I,
bottles of tCleetrie liitlers cured me of I
il, chronic liver and stomach trouble, coin(i;
plicated with such an unhealthy cotulij
lion of the blood that my skin turned red
' as flannel. I am now practically 20 years
d younger than before I took Electric Bit- M
1- ters. I can now do all my work with jjj,
case and assist in my husband's store."
Guaranteed at W. K. Pelhani & Son's p(
ls Drug Store. Price 50c, ui
e Saved Her Son's Life.
y The happiest mother in the little town
of Ava, Mo , is Mrs. S. Ruppee. She
. writes: "One year ago my son was down Pi
with such serious lung trouble that our
I. physician was unable to help him; when,
by our druggist's advice I began giving
him Dr. King's New Discovery, and I
if soon noticed improvement. I kept this n
treatment up for a few weeks when lie 5
was perfectly well. He has worked
steadily since at carpenter work. Dr. r.
King's New Discovery saved his life."
Guaranteed best cough and cold remedy
. by W. U, Pelliain & Son, Druggists. ?]
50c. and $1.00. Trial Bottle free. J 7
y<
'i
a Z
H
% Mfj
J i Jj^\j
A r*?yn<li 1907, Otwull At*
Newberry, S C, ,
^ Dear Friend:
^ I don't see how
H macaroni. I don'
$> get the hole in i
^ says this is a go
^ cause it wont lum
# stomach.
And my, how goo
? with a little che
^ over it, and they
12 1-2 cts a pour
H and 20 cts. a pou
. ^ fresh cheese.
Your fr
? P. S. You can al
^ macaroni and chee
t ? JONES' (
J J Fant'i
I
1
X UUSUUJ'f ueiDDSl' J., XUUf.
You have no idea how delicious
candy can be, if you've
lever tasted ours. The art of
laking and buying candy has
eached the point of perfection
rith us. If
>URE, FINE CANDY ?i
; what you desire we can give J
to you. A sample of our K
hocolates, walnut kisses. Jnut V
rittle, and a hundred and one j
ther varieties will convince ,
ou.
THEO. LAMBRY, !
'he up-to-tl e-minute Confec- 4
tioner and Fruiter. |
ositively the only big show "A
oming to Newberry this year
Tuesday, Oct. 1st.
he highest class exhibition in the world
;untryBros.Slflws j
Twice Daily--2 and 8 P. Nl. m
ore educated animals than all other
lows combined. 50 new acts by 600
irfectly trained Four-footed Fun-furisliers,
.
SEE il
The Marveloua Juggling Norman*,
The Wonderful Flying Zeraldaa. 1
ositively the greatest Feature Acts e.ver
seen beneath a canvas.
BEAUTIFUL ALL NEW
TREET PARADE-Don't Miss It
eaves exhibition grounds 10:30 a. m.
ne ticket admits to everything. Doors
pen for inspection of Menagerie at 1 and
p. 111. jg
M
: I
* ,;
f1
j j
1/ |
' cobs <& ')
/reminder. ^ j
iS \ 1
^ (j
Cr, C*|? i|
l
Oct. 1, 1907. ?
1 1
they make
t see how they t I
t. The doctor ^ I
od thing be- &
p in your
m / 1
d macaroni is 4.
~ i
ese sprinkled J
are cheap too. ^
id for macaroni ^ \ J
nd for nice _
r (
J
1 i end, fe (
Jacob . + / I
wa.ys get fresh 9 / | J
ise at ^ 1
GROCERY. ? |
s Old Stand* ^
. 1