Historical Newspapers of South Carolina

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4 ; ? v . ' j|S)c ^eralD and jews. VOL XLV NO 75 NEWBERRY. S. O.. FRIDAY. SEPFRMTiF/R 1? mn? Trflf A ~~ ? STATE LOOSES IN ? DISPENSARY FIGHT ? of JUDGE PRITOHARD SUSTAINED l)n BY COURT OF APPEALS. ar| is Fraincrs of Constitution Never Con- eit ceived That Southern State Would on Engage in Liquor Business. f(> toi News and Courier. XV( Richmond, Ya., Sept. 15.?In an ()f opinion handed down shortly after 0f noon today by the United States eir| cuit court of Appeals Judge J. C. I Pritchard is sustained in'his findings <?j k in the now famous suit of the (],( I Fleischman company and others C11 ' against the South Carolina dispell- ,nc sary commission. so, The opinion in this ease was writ- ii() ten by Judge James E .Boyd, district j,v judge of Greensboro, N. C., and con- (,0 curred in by his associates, District j;,( Judge Waddill and Chief Justice Ful- |)(> ler. The opinion is quite lengthy, consuming more than forty pages of closely typewritten matter. Much of ,)e this, (however, is devoted to t:he state- j)}.( ment of facts. as In the opinion proper Judge Boyd savs in part: ., ... t Ik there are two main propositions; .j first, the jurisdictional, which presents the question whether this is a suit against the State of South Carolina and, therefore, forbidden by eo' the 11 th amendment; and, second, V whether the dispensary commission is ^0( a court incapable of having its pro- fei ceedings stayed by a writ of injunc- s tion by a federal court. Does this s,Vf case come within the limits prescrib- s,u ed? In this connection it becomes pl>! necessary to inquire if the State lias * 1 any present interest in the fund in ' controversy which can be divested by . a judicial determination of the true amount, if any. justly due to the , 1 complainant? Or has the State, by an act of the legislature, relinquished all rights, if any existed, to enough im of the fund to pay all the just debts of the State dispensary? 1 "The first proposition rests largely 001 upon the construction to be given to a'' the act of the South Carolina legisla- au' ture of February 1 (>. 11)07, providing J110 for the appointment of a commission 1"1, to wind up the affairs of the State ? dispensary, and Section 47 of another fm act abolishing the State dispensary. 's The State, through its legislature, T,n has passed both the title and posses- ' 10 sion of the fund to the commission 1 for the purposes designed in the act. The fund being in the hands of the ,)n commission charged wit'll tliis duty, ? the Slate has no interest in so much VVo , thereof as is necessary to pay the just debts." in' Dispensary Fund a Trust Fund. ('u' The court cites the case of the United Stales vs. Planters' Bank of { Georgia (22, t\ S.,) and many other sar decisions, sustaining this position, in- cm eluding the case of (hinler. Attorney coi General, vs. Atlantic Coast Line Bail- Ca road, (200, 1*. S.,) "In what eapaei- me ty," asks the court, "are Mie mem- Sti hers of the commission acting? Are it they oflicers of the State of South we Carolina or are they agents appoint- tra ed under an act of the legislature me empowered to take possession of a pei certain fund, and directed to admin- we ister such fund in a certain manner? an; We are constrained to hold that the me funds in their hands are held in trust mis for the payment of the .debts men- or tioned, and tdiat the creditors of the ?] State dispensary have a property in ion I the fund in the hands of the commis- Cai jj sion to the extent that the debts are the i shown to bo just, and that a judicial agr determination of the true amount of olii such debts can in no way .iffeet the "i> rights and interests of the State. fmi "Having, therefore, determined the till I' relation of the appellants to the funds by in controversy, we answer the. ques- Soi tion propounded in the outset that us this is not a suit against tlie State, ires <and that the complainant is not for- It bidden to maintain his action by the 1'ie 11th amendment of the constitution for of the United States. This suit is pen not. against the State nor is the State 1 1111 indispensable party. Pri "Treating the funds in the hands par of the appellants as a trust fund and T the duties of the trustees being clear- Hie ly defined, the trustor is not even a P. ossary party to a suit brought to ipel the trustees to discharge their ies. The position appears to be t the agents and representatives the debtor should constitute a trilal absolute in its character to itrarily pass upon what, if anything ilue an alleged creditor, and if a iin lie adjudged invalid to put an 1 to it without further opportunity redress on the part of the credilo uphold such a contention ild be to deprive such a creditor his property without due process law." The State a Liquor Dealer. lie court further announces that ' conception and adoption of eleventh amendment it never e'red the minds of the fin's ol the amendment that a ereign State would engage in the lor business and become a trader buying and selling an article to unon trafTie in competition with citizens of the country. It mav questioned, therefore, whether the te ot South Carolina was oxoroisa governmental prerogative in forming a function necessarily or perly incident to its autonomv as ;i State." n reference to the provisions of 11th amendment Judge Boyd uses following language: Undoubtedly the 11th amendment ; intended to prevent the federal rt in suits prosecuted by citizens another State or citizens or subs of a foreign State from interng with a State in the process of autonomy, in maintaing its own em of self-government so long as j It system is in harmony with the stitution of the United States. To end, therefore, the funds of t'he te in its treasury, or held by its ers or agents for use in the ndisfratiou of the governmental af s in the State arc m>1 to be afed by the process of a federal rt, nor can such court entertain sdietion of an action which lias its purpose the invasion of the its ol the Stale In manage and trol its internal atVairs or of an on w<liich will obstruct (lie State loritv or impair llie State instruitalities in the discharge of legitte functions in the maintenance he State's integrity. To be more eise, the constitutional limitation the efleet I lint the courts of the ted States cannot entertain jurision in an action at the instance of iti/.en who seeks to recover as inst the State ^the property boring to the State, or Mio purpose which is and the result of which ild be, to disturb I lie legal and M-ly administration of-the Stale's rnal governmental alTairs by ils kr appuinled officers and agents." The Commission not a Court, s to whether or not the dispen' commission is a court is briefly -idered. Judge Boyd cites the -dilution of | fie Stale of South olina, providing for lh<> establisliit of the differenl courts of the te, (he court holding thai while s (rue I hat (he commissioners e empowered to investigate the lsacfions connected with managoil and control of the State dissary before ils abolishment, tliev e not empowered to determine issue of fact, enter any jndgit or conclude any party that lit be investigated as to any right ntcrest involved. ndge Boyd then refers to the opinof die supreme court of South olina deciding (hat a suit against dispensary commission was a suit ins! I he Stale. "The South Cara supreme court," savs the judge, j entitled to and has our most pro-1 id respect, but we do no! feel en-[ d to adopt the construclion given; that tribunal !o the statute of! Ih ( aroliua. I'ho law governing! s well settled in the case of Bur-J vs. Seligman, 107, United States.; s our conclusion, therefore, that ' conclusion of the circuit court I he district of South Carolina aped from should* be affirmed." will be seen from this that Judge chard has been affirmed in every icular. nmediately after the reading of opinion by Judge Boyd, Mr. W. Stevenson, of Clieraw, S. C\, asked | for a stay of sufficient length for t preparation of an appeal in the ca: lie first asked for a stay of six days, but .)udge Hoyd suggested tli tortv days would bo ample. The ? der was entered that a slay of inn date lor t.hat length of time be > lowed. Mr. Stevenson represented I attorneys who appeared for the d poMsary board and came here at the request. LYON WLL APPEAL. Attorney General Disappointed Ov The Dispensary Decision. Columbia, Sept. l.">.?Attorney tie Lyon slates that the dispensary ca will be taken up to the United Stat supreme court. Just how the malt will go up cannot now be said, but is the determination of the attorn general that the highest court in t land shall .pass on tin? issues involv and in this | lie attorney general li the lull approval of Governor Ans The decision of the court of a peals was naturally a great dis:i pointiiiciiI to Mie administration, i peciallv to the attorney general, h I lie lull text of the decision lias n yet been received here, and Mr. I,\i could not make any extended comme on il lliis evening. It appears, ho ever, that the Slate has lost on pru ti'*ally all points, which, of course, i dudes the question of jurisdicti< It is stated, however, that the ma dale of the court has been s(ay< f ?r forty days, and in this time t policy of t he admiuisl rat ion as the next steps will be determine Meanwhile the collateral for tl money involved is safely locked the vaults of the State treasury, at it will be some time before the Sla is required to give il up if an appe is perfected, which will almost ee taiuly be done. I his decision means that the crii inal cases pending in connection wi the administration with the late Sta dispensary will not be tried an\ tin soon; not until the Federal suprcn I court has the opportunity to pass < (lie case. A MACEDONIAN CRY. Aiken Farmers Call on Smith Boost the Price of Cotton. News and Courier. Aiken, Sept. It).?A number < Aiken county's farmers held an 1 formal meeting this morning, and II low price of cotton was tlie .>ub,)e ; for discussiou. Since the iioniiuatii of "Cotton" Smith for the I'niti States senate, they though! the pri | should be around 1."? cents, so tl body resolved to telegraph him a bo the mailer. They drafted the folio' ing telegram: Aiken. S. ('., Sept. 1(1. I!)US. Mr. 10. I). Smith, Florence, S. ('.We respect fullv call your attention the downward tendency oi' the pri ol cotton, which will soon reach zer Do please, Mr. Smith, come to oi rescue, We stood by you in vol distress, now do please stand by i in the time of peril. Mr. Smith, you can't raise I he price of col to please send a wireless to Cncle lie who is now in Europe. Aiken County Farmers, Why? Harper's Weekly. Nat Goodwin, I he actor, has friend who owns a country place Maine that is ten miles from a rai way station or telegraph office, a fa ol which Goodwin is duly cognizan Now Mie player used often lo vis this friend, whom die has ever font a lavishly hospitable host, and wl has lime and lime again advised th; there is a room at the place in Mail ready for him whenever he cares I occupy it. On one occasion Goodwin cabh from London: "May f stay over tl third Sunday in September?" The friend paid $5 to the messci gor who brought (lie cable niessag likewise a sum necessary to defrn the cost of his reply: "Of course, In don't cable." Whereupon, Goodwin innocent! sent; (his query by cable, "Wli not ?" ho COMMON PLEAS COURT 50. t.v Considerable Amount of Bus Disposed of?Court Likely I >,_ Continue all the Week. ill While not many jury cases no boon tried, the common pleas t ,s~ Judge Memniiugcr presiding, Inn -H" posed of considerable business week, and the probability is Ilia court will continue throughout week. The first case tried in the er court house-was that of \Y. I{. 1 night v. the Southern railway tV.\ V( . . v :: - - .f' n|'(1 A. II. HAWKINS, Koreman of first jury empanch , the new court house. u. lie pany. This case was taken up in mediately after the dinner reces id Monday. Mr. A. llayne Ilawkin to Prosperity, was made foreman o al jury, signing the first verdict ii r- new building. The other meinbe the jury were: I'. (I. (ilenn. 'I n_ Dominii'k, .1. I>. I>laek, I). Ii. Coo tli S. Werls, X. Y. Dennis, J. 1,. M I,. .). T. linker, Cyrus H. Seliumpei ne A. Wallace. I'. Singley. The m? plaint was read to the jury by ,n '? Hunter, of the firm o.f I Hunt & Hunter, who represent e? plaintiff. The answer was reai Dr. (leo. H. Cromer. <?f the fir Johnstone & Cromer, who reprc.si to the defendant railway company. The plaintiff alleged t!':it <it the early spring of 1 !>()(? lie tem to the railway company at Old ' >>f a car load ??f seed for shipment n- Mr. A. T. StAmaml; at that lm agent of the road, agreed for hi < < liaive a certain car which had "i placed in which to load liis seed, 'd t h;it the car was pushed out ?I ce sition in shil'ling, :iiul Mr. SiAi refused to have it replaced for leaving it in a position where |V~ could not load it. Mr. Roukniuhl that lie had a contract with the S< ern t'otton Oil company in Xowl ? to lake his seed at the highest |o kel price which was offered him, ce to pay him a certain commission, o. reason of his being delayed in hi* ing the car. he said, he was f< ur t'> sell out to another buyer at us Town, selling at the market | if but losing Ii is commission on the n, lie sued for $1,!)!).">, actual and | n, live damages. The railroad contended that Houkuight was given all the ac modal ions which could be given consistent with its duty to other : pors. a Mr. T. II. Hunt made the opc |n argument for the plaintiff, and |j_ followed by Mr. .1. M. Hunter foi ,.| plaintiff, and Mr. Cromer and ,1 Johnstone for the defendant. Mr |j II. Hunt closing for the plainlif id In charging the jury Judire .N 10 mingcr slated that, inasmuch as it would wrile the first verdict t< ie written in the new bnildinir. |o would naturally be on their met I mete out justice. His charge d clear and exhaustive. ie The jury retired shortly a tier diunvr recess on Tuesday a fieri ii- and after remaining out about e, hour and a half, brought in a vei iy for the railway company, it The first case on Wednesday in was (hat of Mat tie Young v. I ly Kddy, suit for $11-1 and interest, ly plaintiff alleging that $111 had paid, on a note held by the defen I *T JVW -a. TV J ' end s'bove whiil was due oil the ' re< note, the whole amount claimed he-1 till liness irg $1')S 0."?. The plaintiff was rep-J ;o resented bv Messrs. Simp.'.on, Cooper' wa (.V; IV'bb, of Laurens, and Messrs. So Hunt, Hunt & Hunter of the local lit' have bar. No nienlber of the Laurens firm Hh ourt, was present, the members of the lo- dm ? dis- eal firm appearing for the plaintiff, er. this The defendant's attorney was Mr. all I the Cole. L. Hie use. Mr. Mease being j pa: the mil of |lie city, a motion for a eon- we tiuuance on that ground was urged, oik new hut was refused by I he tourl. Mr. Cli iouk- Fred. 11. Dominick. Mr. Mease's law inl com- partner, was in court, but the ease tat was Mr. Hlease's case before the for- adi ., million of the partnership, and Mr. Me Doniiniek Mas not an attorney of nol record. I'pon the refusal of (lie mo- sin SpM linn for a continuance, i! developed I lit RKjn that the defendant was not in at- ret tendance upon the court, and Mr. tin j?l| Dominick consented thai judgment should be laken fur the ainonnt claim- ''I K I'll. 'I'lie .jury? I he second empanelled ! in the. new building?-was composed Mr ot the following gentlemen: William I lolmsun. foreman; ('. 11. Shannon, | t'vrns H. Scluunpert, .1. <i. Hrowu, .1. V j A. Wallace, Hubert T. Hugh, (?. S. ? Ey | Hunt'. A. Iiiirtun. W. W. Herlev, to ' Haker. .1. U. Hrehnicr. I). H. we i t 'uok. St: ' was announced that the case of fro Milhurn Wagon company v. A. T. j Hruwn had been adjusted. I!" Mk The two eases of Mrs. I,alia H. (>-!< ! Stockman and Adam L. Anil v. the lli; Southern Railway company were tried sec (d in her, the plaintiffs being repre- llo | seated by Messrs. Hunt, Hunt & of i Hunter and the defendant by Messrs. sail ini- j .lohuslone & Cromer. These cases fee is on ' were laken up on Wednesday morn- 4 s, of j ing, and concluded shortly after din- are I" the j tier mi Wednesday afternoon. The iod i the I testiniuny of the plaintiffs was to ab> rs of j the effect that Mr. Adam H. Anil dil '. A. ; had received a message from Ilis son- per >k, .1. (in-law in ('n)mnbia, in Sepleinber, ed iller. 1MM, lelling him of the serious ill- a f |, .1. : ncss uf his daughter, and telling him SI:i cum- j to nunc lo Columbia on the first Mr.'train. Mr. Anil and his wife who ||M, Inn!. | had since died ?and his daughter, Vai I the Mrs. Sluckmaii. and I wu of their >1 by children, wenl lo the depot al Hoinar- ||l(, in of ia to take tin- mixed train which al |);l| nted that time passed Homaria somewhere sjn about nine o'clock. Their testimony Val iring wns 'he effect that they flagged u,H; lered '1 down, and tliat the train ran about |'m I'owu 'XVo hundred yards below the regular that s'"PI)'nir place before stopping, where- (j() time j nP?n they gathered up their baggage n,,| m |() ami started towards the train, when Sj(, been 'he train pulled out and left them. j and i 'he.v were forced, they said, t<? wait I' po- I '"r Hie regular passenger, which at nam! "Iil- time passed I'omaria between ^ him :,ni' '~ o'clock. The wailing room, |n? |'hey stated, wa> closed, and the said xvea' her was cool, and they had sufMllli ''ered t !nni-cl\c> |>y the wail, and had ' ,errv had considerable difficulty in taking mar- Ismall children they had Hid |w''h I hem. They alleged small peeiin- I i?v(iary h>s> after tlieir arrival in ('uluin- b*a I,,.,,)', j hia a> a result of having been delay- <'ai l i I'll. wn >rced Old I he railroad contended that for I ho hci ice mixed train I'omaria was only a flag hay station, and the waiting room was the ami- m'ver open at night. They produced sii| evidence in regard to the weather, c*nc contending that it was mild, and of- I fering the meleori>logical record of sin ^li'in" <',>vernment Observer W. (J. Peter- pli< ,. son in support, of their contention bin > They urged that the plaintiffs in hav- gai ing lo wait for the regular passenger sin ning had not been damaged, contending 1 was that the regular passenger had better get the aceoinrnodalions than the mixed train, cor and that the mixed train was late and tri< '' arrived in Columbia only 215 minutes shu ' ahead of the train which they had en I cm - intended to take. lyji they The jury, after remaining out a siir > be short while, returned a verdict in the'our they suni of $2'I0 for the plaintiff in each I le to case. , has was The case of |)r. (!. Y. Hunter v. a ^ Henry 11eyman el al., involving the hav the possession of two mules, was then Tin toon, taken up. the' plaint i IT being repre- fiv< an senti'd by Messrs. Hunt, Hunt, & lin; "diet Hunter, and the defendants by 111i.Messrs. Johnstone & Cromer. It was ( lorn- agreed to try the case before the pre- knr Dora siding judge without the intervention aim the of a jury. The testimony was con- full been eluded on Wednesday afternoon. dantj Argument in the matter was defer Ui-Cijx. ?i.nu A X JUAH I vest('rdav morning {,, order to ?' up again the jury I rials. n';; T?:,s" >?'siorday "morning s ,,,a( ??' T"'uisa y. | he " 1UM,'" company, (lie plain, t being representod by Messrs. >as(; & Uominiek and 'the defend ?rt:ss,'s- Johnstone & CromMio defendant, a colored woman i'g*d injuries as (he resull of two ssengers on the Southern, which re to pass at Montgomery, and '?! which she was on, going lo arleston In he operated upon, ran ? one of I hem was :?ig the siding. The defendant nit led negligence, a?d ??dor Judge 'milliliterV decision (he case, was ???ie for punitive damages, i( was 'Ply a question for I ho jury as to Jiiiionnt of ihe injury. The jurv 11,111 . :l v,,'dict of fifty dollars' for ' plaintiff. >UTCH WEATHER PROPHET." J:, IIo"seal Says First Frost Will Bo October 6-9?Killing Frost 10-17. W. 1\ llousenl who is Known "I ""I' readers is f.iniishiuJ;?'v?-?s|s for ||,e Columbia ,h'- M,r l??lh?winy is forecast for prini<>d on Wednesday : 'Tlie firsi frosl lor li.,. fall of " U ,M in I be period of Oet Killing frosl will occur Oct. I'- I'liis forecasl includes the ' ??n north and west of Columbia, "ever. | he sandy or lower sections ">e Slate may likewise liave the lie ros| teniperalures and be afled accordingly. ' Severe equinoei isil disturbances appreluuided during (lie nerSepl. on a ml of ihe and planetarv con"'"s which prevailed al tlie storm 7'1 Aug. 17-iM. and which cans"'e great flood as foreshadowed in "n'cas| published on Aug. 1.1 in the ilc. 'no! winds will pr,v.,i, during remaining porlions Sep,en,be,' laole I ron, north lo northeast. The ,st' ion is ,|1H> (l) excessive precipilali ? ||?. A|). achiau watershed a* well :|s j,, 'i,in' l,|,(,('i|>ilal ion in Ihe central 7s; How into Ihe gulf and AI hint ic. and which al Ihe same ie cause local slorms along I he 1 ,'""1 A Haul i.. coasts. Those see"S '"''eeive ||,e win,I which flies ,lM' ?*?;? res of asl wise iim.>. and in some periods also ||?> "s accompany ilie slorms." * * * * * * >: * * ? >, SUNSHINE. .i Open Letter to News Readers < * * * * * * ? * * * * ''n,'":ls: As and 'ler in Sunshine work in Soiiiii r"lill;' -Marye |{. Shelor has "<gM faill,fully and well, f mler energetic leadership the work ! grown and prospered exceeding bnghlesl hopes of j|s mosl loval >j?orters, ami today shows more '"iiragcmcnt I ban ever before. bit Ihe demands of time ami cnglh are very great, ami mull,' il.v ol cares and dulics a heavy del,. MspeciaII v taxing lo (he oruxors eyes, which, never verv I>ng, arc severely I axed. Recognizing tin*'help i| will be in ling Ibrough will, a verv lar<>e respondence .Master I'Yed ' McK'fl"k.? 'itIle So,,11, Carolina it-in and loyal Simshiner has giv;l ("ward a fund lo by a "writer lo be sent a Christmas <" Stale headquarters and loved leader. writer is down a dollar and agreed |? act as treasurer. For ?>d, serviceable machine we must e nol less than twenty-five dollars, e ,s short. A re | here not | wenty' gtwid Sunshine,s in South Car'oi wlm will give a dollar each to ? fund ? 'outribnlions will be promptly ae wledged, and information as to is and progress of the work cheerv given. Faithfully yours in the work, Carter Riser.