Historical Newspapers of South Carolina

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ksrA /?a VOL XLV NO 75 NEWBERRY S. O., FRIDAY. SEP1'EMBEE 18. 1908. TIEAWE.S.0AYA STATE LOOSES IN DISPENSARY FIGHT JUDGE PRITCHARD SUSTAINED BY COURT OF APPEALS. Framers of Constitution Never Con ceived That Southern State Would Engage in Liquor Business. News and Courier. Richmond, Va., Sept. 15.-In an opinion handed down shortly after noon today by the United States cir cuit court of Appeals Judge J. C. Pritchard is sustained in !his findings in the now famous suit of the Fleischman company and others against the South. Carolina dispen sary commission. The opinion in this case was writ ten by Judge James E .Boyd, district judge of -Greensboro, N. C., and con curred in by his associates, District Judge Waddill and Chief Justice Ful ler. The opinion is quite lengthy, consuming more than forty pages of closely typewritten matter. Much of this, rhowever, is devoted to the state ment of facts. In the opinion proper Judge Boyd says in part: "There are two main propositions; first, the jurisdictional, which pre sents the question whet.her this is a suit against the State of South Car olina and, therefore, forbidden by the 11th amendment; and, second, whether the dispensary commission is a court incapable of having its pro ceeings stayed by 'a writ of injunc tion by a federal court. Does this case come within the limits prescrib ed! In this connection it becomes necessary to inquire if the State has any present interest in the fund in controversy which can be divested by a judieial determination of the true amount, if any, justly due to the complainant? Or has the State. by an act of the legislature. relinquish ed all rights, if any existed, to enough of the fund to pay all the just debts of the State dispensary? "The first proposition rests largely upon the construction to be given to the act of the South Carolina legisla tue of February 16, 1907, providing for the appointment of a commission to wind up the affairs of the State dispeisary, and Section 47 of another at abolishing t'he State dispensary. The State, through its legislature, has passed both the title and posses ion of the fund to the commission for the purposes designed in the act. The fund being in the hands of the commission charged witih this duty, the State has no intei'est ini so much -thereof as is necessary to pay the just debts." Dispensary Fund a. Trust Fund. The court cites the case of the United States vs. Planters' Bank of Georgia (22, U. S.,) and many- other decisions, sustaining this position, in cluding the case of Gjunter, Attorney General. vs. Atlantie Coast Line Rail road., (200, U. S.,) ''I what capaci ty,' -asks the court, "are the mem hers- of the commission acting? Are they offiers of the State of South Carolina or are they agents appoint ed under an act of the legislature empowered to take possession of a certain fund, and directed to admin ister such fund in a certain manner? We are constrained to hold tl>at the funds in their hands are held in -trust for the payment of the .debts men tioned, and tbhat the creditors of the State dispensary have a property in the fund in the hands of the commis sion to the extent that the debts are shown to be just, and that a judic.ial determination of the true amount of such debts can in no way affect the rightsand interests of the State. 'Having., therefore. deter'mined t,he relation of t:he appellants to the funds in controversy, we answer the ques tion propounded in the outset that this is not a suit against the State, and that the complaiaant is not for bidden to maintain his action by the 11th amendment of the constitution of the United States. This suit is not against the State nor is the State an idispensable party. "Treatir,. the funds in the hands of the appellants as a trust fund and the duties of the trustees being clear ly defned, the trnstor is not even a necessary party to a suit brought to compel the trustees to discharge their duties. The position appears to be that the agents and representatives of the debtor should constitute a tri bunal absolute in its e>iaracter to arbitrarily pass upon what, if anything is due an alleged creditor, and if a claim be adjudged invalid to put an end to it without further opportunity for redress on the part of the credi tor. To uphold such a contention would be to deprive such a creditor of his property without due process of law." The State a Liquor Dealer. The court further announces that "in the conception and adoption of the eleventh amendment it never entered the minds of the fra mers of the amendment that a sovereign State would engage in the liquor business and become a trader by buying and selling an article to common traffic in competition witi the citizens of the country. It may be questioned. therefore, whether the State o+ South Carolina was exercis ing a governmental prerogative in perfo-ming a function necessarily or properly incident to its autonomy as as a State." In reference to the provisions of the 11th amendment Judge Boyd uses the following language: 'Undoubtedly the 11th amendment was intended to prevent tie federal court in suits prosecuted by citizens of another State or citizens or sub jects of a foreign State from inter fering with a State in the process of its autonomy. in maintaing its own system of self-government so long as such system is in harmony with the constitutio.n of the United States. To this end, therefore, the funds of tahe Sta.te in its treasury, or held by its officers or agents for use in the ad ministration of the governmental af fairs in the State are not to be af feeted by the process of a federal court, nor can such court entertain jurisdiction of an action which has for its purpose the invasion of the rights of the State to manage and control its internal affairs or of an action which will obstruct the State authority or impair the State instru mentalities in the discharge of legit imate functions in the maintenance of the State's integrity. To be more concise, the constitutional limitation is to the effect that the courts of the United States cannot entertain juris diction in an action at the instance of a citizen who seeks to recover as against the State ,the property be longine to the State. or t.he purpose of which is and the result of wvhich: wvould be, to disturb the legal and orderly administration of -the State's internal governmental affairs by its duly appointed officers and agents.' The Commission not a Court. As to whether or not the dispen sary commission is a court is briefly considered. Judge Boyd cites the constitution of the State of Souti Carolina. providing for the establish ment of the different courts of th( State. the court holding that while it is true that the commissioners were empowered to invectigate th( transactions connected with manage -ment and control of the State dis pensary before its abolishment, they were not empowered to determinE any issue of fact, enter any judg ment or conclude any party thai might be investigated as to any righi or interest involved. Judge Boyd then refers to the opin ior of the supreme court of South Carolina deciding that a suit against the dispensar.v commission was a suit against the State. ''The South Ca-r 'lina supreme court.'' says the judge, "'is entitled to and has our most pro. found respect. but we do0 not feel en titled to adopt the construction given by that tribunal to the statute of South Ca roldina. The law governing us is well settled in the case of Bur 'tess v . Seli'.mani. 107. United States. It is our conclusion, therefore, that ile conclumsion of the circuit court for- the district iof South Carolina ap pealed from shoulE. be affirmed."' IIt will be seen from this that Judge P'tehard has been affirmed in every partieular. Immediately after the reading of the opinion by .Judge Boyd. Mr. W. four a stay of sufficient length for the preparation of an appeal in the case. He first asked for a. stay of sixty days. but Judge Boyd suggested that fort dlays would be ample. The or der wa: entered that a stay of man date for that length of time be al lowed. Mr. Stevenson represented the I attorneys who appeared for the dis pemsary board and came here at their request. LYON WLL APPEAL. Attorney General Disappointed Over The Dispensary Decision. Columbia. Sept. 13.-Attorney Gen Lyon states that the dispensary case will he taken up to the United States supreme court. Just how the matter wl go up cannot now be said, but it is the determination of the attorney general that the highest court in the land shall .pass on the issues involved and in this the attorney general has the full approval of Governor Ansel. The decision of the court. of ap peals was naturally a great disap) point.ment to the administration, es pecially to the attorney general. but the full text of the decision has not yet been received here. and Mr. Lyon could not make any extended comment on it this evening. It appears. how ever. that the State has lost on prac tinally all points. which, of course. in eludes the question of jurisdiction. It is stated, however, that t-e man date of the court has been stayed r forty days, and in this time the policy of the administration as* to the next steps will be determined. Meanwhile the collateral for the money involved is safely locked in the vaults of the State treasury, and it will be some time before the State is required to give it up if an appeal is perfected, which will almost cer tainly be done. "'This decision means that the crim inal cases pending in connection with the adniinistration with the late State dispensary will not be tried any time soon: not unfil the Federal supreme court has the opportunity to pass on the case. A MACEDONIAN CRY. Aiken Farmers Call on Smith to Boost the Price of Cotton. News and Courier. Aiken, Sept. 16.--A number of Aiken county's farmers held an mn formal meeting this morning, and the low price of cotton was tile suIb.Ject for discussion. Since the nomination of ''Cotton '' Smith for the U.nited States senate, they thought the price should be around 15 cents. so the body resolved to telegraph him about the matter. They drafted the follow ing telegram: Aiken. 'S. C.. Sept. 16. 1908. Mr. E. D. Smith, Florence, S. C. We respectfully call your attention to the downward tendency of~ the price of cotton, which will soon reach zero. Do please. Mr. Smith, come to our rescue. We stood by you in your distress, now do please stand by us in the time of peril. Mr. Smith, if you can't raise the price of cotton, please send a wireless to Uncle Ben, who is now in Europe. Aiken County Farmers. Why? Harper's Weekly. Nat Goodwin, tTie actor, has a friend, who owns a country place in Maine that is ten miles from a rail way station or telegraph office, a fact of which Goodwin is duly cognizant.' Now the player used often to visit this friend, whom 'he has ever found a lavishly hospitable host, and who has time and time again advised that 'there is a room at the p)lace in Maine ready for him whenever he cares to occupy it. On one occasion Goodwin cabled from London : "May I stay over the third Sunday in September?"' The friend paid $3 to the messen-' ger' who brought the cable message. likewise a sum necessary to defray the cost of his reply: ''Of course, but don 't cable.'' Wh'ereupon, Goodwin innocently sent this query by cable. ''Why COMMON PLEAS COURT. Considerable Amount of Busines: Disposed of-Court Likely to Continue all the Week. While not many jury cases hav( been tried, the common pleas court Judge Memminger presiding, has dis Posed of considerable business this week. and the probability is that t:h4 rourt will continue throlua-hout thf eek. The first ease tried in the nev -ourt house-was that of W. R. Bouk. night v. the Southern railway coin {. ! 'w _ y r A. H. HAWKINS, Foreman of first jury empaneled it the new court house. any. This case was taken up im nediately after the dinner recess or 1onday. Mr. A. Hayne Hawkins, o: Prosperity, was made foreman of th jury, .igning the first verdict in th< iew building. The other members of :he jury were: P. G. Glenn. T. A Dominiek. J. B. Black, D. B. Cook, J !. Werts, N. Y. Dennis, J. L. Miller J. T. Baker. Cyrus B. Schumpert, J X. Wallace. P. C. Singley. The com )laint was read to the jury by Mr T. B. Hunter, of the firm of Hunt unt & Hunter, who represented th< )laintiff. The answer was read b Dr. Geo. B. Cromer. of the firm of Johnstone & Cromer. who representei :he defendant railway company. The plaintiff alleged that durin; the early spring of 1906 he tenderes : the railway company at Old Towi i car load of seed for shipment;. tha M'r. A. T. StAmand,- at that timi agent of the road, agreed for him t< iave a certain ear which had beer alacedl in which to load his seed. anm bhat the car was pushed out of po ition in shifting. and Mr. StAmanm ef used to ha:;e it replaced for him leaving it in a position wvhere hi sould not load it. Mr. Bouknight saih tha.t he had a contract with the South er Cotton Oil company in Newberr: to take his seed at the hig'hest mar et price which was offered him, anm to pay' him a certain commission. B: reason of his being delayed in load ng the car, lie said. he was forcee to sell out to another buyer at Olh Town. selling :a: the market price but losing his cominission on the car Fe sued for $1,99., actual and puni tive damages. The railroad contended that Mr Bouknight was given all the accom modations which could be given hiu 2onsistent witih its duty to other ship pers. Mr. I. H. Hunt made the. openin argument for the plaintiff, and wa followed by Mr. J. B. Hunter for th< )laintiff, and Mr. Cromer and Mr Johstone for the defendant, Mr. WV El. Hunt closing for the plaintiff. 1n chiarging the jury Judge Mem ninger stated that. inasmuch as they vould write the first verdict to b< vritten in the new building. they ould naturally be on their mettle ti mete out justice. His chiarge wa: lear and exhaustive. The ~jury retired1 shortly a fter' th< Siinneir recess5 oin Tuesda afternoo md after remlainuing out about ai ouir and a half, brought in a verdici lor' the railway cornpany. The first case on Wednesday morn ras that of Mattie Young v. Dors Eddy. suit for $114 and interest. the la.intiff alleging that $114 had beer aid on a notimi heldb the defendani w( :ni rIove what was due on the note, the whole amount claimed be ; i !8j.5. The plaintiff was rep r(ented by Me,4rs. Simp::(n. Cooper & B-obb. f Lairens. and Messrs. Hunt, Hunt & Hunter of the local bar. No men'tber of the Laurens firm was present, the members of the lo - cal firm appearing for the plaintiff. The defendant's attorney was Mr. Cole. L. Blease. Mr. Blease being out of the city. a motion for a con tinuance on that ground was urged, but was refused by the court. Mr. Fred. H. Dominick. Mr. Blease's law - partner. was in court, but the case was Mr. Blease's case before the for mation of the partnership, and Mr. Dominick vas not an attorney of record. Upon the refusal of the mo tion for a continnance, it developed that the defendant was not in at tendanee upon the court, and Mr. Dominick consented that judgment should he taken for the amount claim el. The jury-the second empanelled in the new building-was composed of the following gentlemen: William !Johnson. foreman; C. H. . Shannon, Cyrus B. Schumpert. J. G. Brown, J. A. Wallace. Robert T. Pugh. G. S. Long, J. A. Burton. W. W. Berley, J. T. Baker. J. B. Brehmer. D. B. Cook. It was announced t-hat the case of Milburn Wagon company v. A. T. Brown had been adjusted. The two eases of Mrs. Lalla B. Stockman and Adam L. Aull v. the Southern Railway company were tried together, the plaintiffs being repre sented by Messrs. Hunt, Hunt & Hunter and the defendant by Messrs. Johnstone & Cromer. These cases were taken up on Wednesday morn ing, and concluded shortly after din ner on Wednesday afternoon. The testimony of the plaintiffs was to the effect that Mr. Adam L. Aull had received a message from his son in-law in Columbia, in September, 1904, telling him of the serious ill ness of his daughter. md telling him to come to Columbia. on the first train. Mr. Aull and his wife-who , had since died-and his daughter, !Mrs. Stockman, and two of their children. went to the depot at Pomar ia to take the mixed train which at l that time passed Pomaria somewhere about nine o'clock. Their testimony was to the effect that. they flagged it down, and that the train ran about two hundred yards below the regular stopping place before stopping, where upon they gathered up -their baggage Iand started towards the train, when the train pulle.d out and left them. They were forced, they said. to wait Ifor ti. 3 regular passenger, wrhich at thez time passed Pomaria b)etween 11i and 12 o'clock. The waiting room, 'they stated. wras closed, and the wveather was cool. and they had suf fered themselves by the wait. and had had considerable difficulty in taking -care of the small children they had with them. They alleged small pecun iary loss after their arrival in Colum bia as a result of having been delay ed. The railroad contended that for the mxdtrain Pomaria was only a flag station, and the -waiting room was never open at night. They produced evidence in regard to the weather, contending that it was mild, and of fering t.he meteorological record of Government Observer WV. G. Peter son in support of their contention. -They urged that the plaintiffs in hav ing to wait for the regular passenger had not been damaged, contending that the regular passenger had better accommodations than tahe mixed train, -and that the mixed train was late and -arrived in Columbia only .23 minutes ahead of the train which they had intended to take. - -The jury, after remaaining out a short while, returned a verdict in the - 'm of .$240 for thle plaintiff in each case. The eas~e of Dr. 0. Y. Hunter v. Henry Heymnan et al.. involving the possession of two mules, was then trkeni up. the- plaintiff b'ing repre -ented by Mfessrs. Hunt, Hunt, & Hunter. and the defendants by Messrs. Johnstone & Cromer. It was agreed to try the case before the pre siding judge without the intervention of a juryv. The testimony was con eluded on Wednesday afternoon. Arumntn in the matter was defer red yesterday morning in order to take up again the jury trials. The tirst ease yesterday morning was that of Louisa Nelson v. the Southern Railway company, the plain tiff being represented by Messrs. Blease & Dominick and the defen dant by Messrs. Johnstone & Crom er. The defendant, a colored woman, alleged injuries as the result of two passengers on the Southern, which were to pass at. Montgomery, and one of which she was on, going to Charleston to be operated upon, ran into each other as one of them was taking the siding. The defendant admitted negligence, and under Judge Memminger's decision the case was not one for punitive damages, it was simply a question for the jury as to the amount of the injury. The jury returned a verdict of fifty dollars for the plaintiff. "DUTCH WEATHER PROPHET." Mr. W. P. Houseal Says First Frost Will Be October 6-9-Killing Frost 16-17. Mr. W. P. Houseal who is known to many of our readers is furnishing weather forecasts for the Columbia State. The following is forecast for frost printed on Wednesday: "The first frost for the fall of 1908 will occur in the period of Oct. 6-9. Killing frost - will occur Oct. 16-17. This forecast includes the section north and west of Columbia. However, the sandy or lower sections of the State may likewise have the same frost temperatures and be af fected. accordingly. "Severe equinoetial disturbances are not apprehended during the per iod Sept. 20-23, on account of the absence of solar and planetary con ditions which prevailed at the storm period of Aug. 17-24, and which caus ed the great flood' as foreshadowed in a forecast published on Aug. 15 in the State. '"Cool winds will prevail during the remaining portions of September, variable from north to northeast. The cause of these conditions is due to the excessive precipitation in the Ap palachian watershed as well as to similar precipitation in the central valleys, which flow into the gulf and south Atlantic. and which at the same time cause local storms along the gulf and Atlantic coasts. Those sec tions receive the wind which flies out of the centres of these coastwise storms, and in some periods also the rains which accompany the storms.'' ** * *:. * * * * * * * * *An Open Letter to News Readers * * * * * * * ,** * * * * Friends: As State organizer and leader in Sunshine work in South. Carolina Marye R. Shelor has wrought faithfully and well. Upder her energetic leadership the work has grown and prospered exceeding the brightest hopes of its most loyal supporters, and today shows more encouragement than ever before. But the demands of time and strength are very great, and multi plicity of cares and duties a heavy burden. Especially taxing to the or ganizers eyes, which, never very strong, are severely taxed. Recognizing the 'help it will be in getting through with a very large correspondence Master Fred McKit trick a bright little South Carolina shut-in and loyal Sunshiner has giv en a dollar toward a fund to by a typewriter to be sent a Christmas surprise to State he-dquarters and our loved leader. The writer is down a dollar and has agreed to act as treasurer. For a good, serviceable machine we must have not less than twenty-five dollars. Time is short. Are there not twenty five good Sunshiners in South Caro lina who will give a dollar each to this fund? - Contributions will be promptly ac knowledged, and information as to aims and progress of the work cheer fully given. Faithfully yours in the work,