The herald and news. (Newberry S.C.) 1903-1937, January 19, 1912, Page TWO, Image 2
NOT OFFICERS OF THE STATE.
Lyon's Opinion as to Life Trustees of
Clemson-Opinion Asked by
Legislature.
Columbia, Jan. 15.-"It is my opin
ion that the self-perpetuating trustees,
seven in number, appointed under the
will of the late Thomas G. Clemson,
are not creatures or officers of the
State, and hold their positions sep
arately and independently of any au
thority derived from the State; that
the State has agreed to the existence
of the said seven trustees, as provided
for in said will, and can in no manner
confer their duties, or authority upon
any other person or persons whom
soever, nor can it in any wise abridge
the duties laid upon said seven trus
tees as provided for in said will. And
further, that the State has no author
ity to increase the whole number of
the board of trustees to more than
thirteen, nor to choose more than six
of that number to especially represent
the interests of the State. The State
ean not, therefore, acquire the right to
eledt all the trustees," is the opinion
of Attorney General Lyon, transmitted
to the legislature today, in response
oo their resolution asking him to look
isto the question, whether the life
trustees of Clemson college are offi
eors of the State or not.
Gov'ernor Blease laid this matter be
fore the general assembly last year, in
his message referring to several State
officials holding, as he claimed, two
State offices. The opinion of the at
torney general in full follows:
f ^ Opinion in Full.
To the general assembly of the State
of South Carolina:
Responding to your concurrent res
olution No. 297, acts of 1911, page 452,
requesting this office "to investigate
and report to the next session of the
general assembly the legality of the l
State acquiring such control, as will
enable the general assembly to elect
all the trustees of Clemson Agricul
tural college," I respectfully report:
I The preamble of the will of the late
Thomas G. Clemson clearly shows that
it was his intention to establish an
agricultural college upon the Fort
Hill place, a tract of land owned by
him, and to have it perpetuated un
der the terms and conditions set forth
in his will. Referring to the institu
tion he had in mind, he says in the~
preamble of said will "this institution
I desire to be under the control and
management of a board of trustees, a
part of whom are hereinafter ap
pointed." .And it is further provided
in Item 1 of said will, that Fort Hill
shall be given in his executor "in
trust; that whenever the State of
South Carolina may accept said pro
perty as a donation from me for the
purpose of thereupon foundiag an ag-I
ricultural college Is ac'cordance with
the views I have hereit'before ex
pressed, of which the chief justice of~
South Carolina shall be judge, thEn
my executor shall execute a deed ot
said propert'y to the said State and
turn over to the same all property
hereinafter given as an endowment to
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said institution to be held as such bN
the said State so long as it in good
faith devotes said property to the pur
poses of the donation."
Original Life Tru. tees.
In Item 2 it is provided that "the
following named gentlemen, sevcn ir
number, shall be seven of the board of
trustees, to wit: R. W. Simpson, D. K
Norris, M. L. Donaldson, R. E. Bow
an, B. R. Tillman, J. E. Wannamakei
and J. E. Bradley, and the State, if i1
accepts the donation, shall never in
crease the board of trustees to a num
ber greater than thirteen in all, not
shall the duties of said board be tak
en away or conferred unon any othei
man or body of men. T 3 seven trus
tees appointed by me above shall al
ways have the right and the power i;
hereby given them and their succes
sors, which right the legislature shal]
never take away, or abridge, to fill all
vacancies which may occur in theii
number by death, resignation, refusal
to act or otherwise. But the legisla
ture may provide, as it sees proper foi
the appointment or re-election of the
other six trustees, if it accepts the do
nation. . ."1
In the third item of his will the
testator directs that in case the State
shall fail to accept and carry into ef
fect the donation according to the
terms of the will, the seven trustees
named by him shall establish the
school or college provided for in the
will. This direction is given in the
following language:
In Case of Rejection.
"Item 3. Should the three years ex
pire without the State accepting the
donation, in manner as hereinbefore
provided, and if accepted at the es.
piration of three years from my death
no practical. beginning has been made
to carry into effect the purposes of
the donation, or if before the three
years expires the legislature shall re
fuse to accept said donation, then the
donation to the State is hereby revok
ed, and my executor shall execute
his trast by conveying the said Fort
Hill place, and the accumulated fund
arising therefrom, together with all
other property real and personal here
inafter disposed of and intended to be
fliven to the said agricultural college
as an endowment, to the seven trus
tees named above, or their successors,
who shall erect upon the Fort Hill
place such a school or college for the
youth of South Carolina, as in their
judgment will be for the best inter
est, provided that said school or col
lege shall be for the 'benefit of the ag
ricultural and mechanical classes prin
ipally, .and shall be free of cost to
the pupils, as far as the means derived
from the endowment hereinafter pro
vided, and the use of the land may
permit. . . .
In due time the legislature of the
State .passed an act, which was duly
approvied by the governor on the 27th
day of Novemnber, 1889, whereby it
was enacted "That the State of South
Carolina hereby expressly declares
that it accepts the devise and bequest
of Thomas G. Clemson, subject to the
terms and conditions set forth in his
said will and testament. . . ."And
proceeded to make further enactments
establishing Clemson Agricultural col
lege of South Carolina and providing
for its control and management coni
si'itent and in accordance with th.
terms and conditions of the will of the
said late Thomas G. Clemson.
Legally Accepted.
That in accordance with the provis
ions of said will the chief justice of
the State of South Carolina did ad
judge that the State of South Carolina
has accepted the said donation under
the terms and conditions of said will.
The following was the finding and
judgment of the chief justice:
"Columbia, S. C., Supreme Court
Room, December 6, '89: It having been
referred to me as chief justice
State by R. W. Simpson, executor of
the will of the late Thomas G. Clem
son, deceased, under the provisions 01
said will whether or not this State
had accepted the dev'ice and bequest
there. I have this to state:
"Whereas the general assembly of
this State at its last session passed
an act ertitled 'An act to accept the
device and ueQ'lest of T bondis G.
Clemson and to establish an Agricul
tural college in connection th*
in which it is expressly declared thai
the State accepts the said devise andi
bequest of Thomas G. Clemson sub
ject to the terms and conditions sei
forth in the last will and testament 01
the said Thcomas G. Clemso!:
"Whereas, this act was duly approv
ed by the governor of the State on the
27th day of November, 1889,.
"Now it is my opinion that this con
crrenlt action of the legislature and
execttt-:3 departments of the State
the State bas accepted said device and
becuest of the said Thomas G. Clem
son, deceased, suoject to the tjerms and
conditions set forth in his last will ant
t.:an'M r .T? 1 do declare it Is -fur
the act supra constitute acts in t:.e
direction practically carrying out the
terms and conditions of said will, and
within the time limited therein.
W. D. Simpson,
"Chief Justice of South Carolina.?
The above will be found recorded in
the office of the secretary of state,
Book 6, M., page 549.
By the above act of the legislature
declaring the State's purpose of ac-1
cepting the donation and carrying out
the provisions of the will it obtained
possession of the property of the tes
tator and made it impossible for the
trustees to establish and maintain a
college under the provisions of Items
3 of will.
"Valid and Binding."
In my opinion the acceptance by the
State of the real estate and other
property under the terms and condi
tions of the said will constitutes a
contract in all respects vaild and bind
ing upon the State, which the State
is in honor bound to perform, and
which is inviolable under the provi
sions of the constitution of this State
and of the United States.
In the language of the Dartmouth
college case, 4 Wheaton, 644, "It is a
contract on the faith of which real
and personal estate has been convey-1
ed . . it is then a contract
within the letter of the constitution
.ind within its spirit also . ."
The parties to this contract are the
State of South Carolina on the one
hand, whose interests are now repre
sented by her six trustees elected
by the legislature under the provis
ions of the act establishing the said
college, and on the other hand the exe
cutor and the seven life trustees pro
vided for in the will of the late Thom
as G. Clemson; that the seven trus
tees hold their positions and derive
their authority solely under the terms
of the will of the late Thomas G.
Clemson, and are charged with main
taining and perpetuating the said in
stitution according to his plans and
purposes, and especially to safeguard
and effectuate the purposes declared
in said will, while the six trustees al
lowed by said will 'to the State of
South Carolina hold their positions by
permission of said will and under
Iauthority of the act of the legislature
hereinbefore referred to especially
representing the State of South Caro
lina as distinguished from the inter
ests represented by the seven trustees
appointed under said will.. Cooley,
Con Line, 7th Edwition, Par 385; 1031
U. S., 5; 16 Wall, 203.
It is my opinion that the self-perpe
tuating trustees, seven in number, ap
pointed under the will of Thonias G.
Clemson, are not creatures or officers
of the State, and hold their positions
separately and independently of any I
authority derived from the Stat;e; that I
the State ha,s agreed to the existence
of the said seven trustees, as provided 1
for in said will, and can in no manner I
confer their duties, or authority upon
any other persons or persons whom- I
soever, nor can it in any wise abridge I
the duties laid upon said seven trus- I
tees as provided for in said will. And I
further, that the State has no au- [
thority to increase thea whole number!
of the board of trustees to more than
13, nor to choose more than six of that
number to especially represent the in
terests of the State. The State can not
therefore acquire the right to elect all
the trustees.
Respectfully submitted,
J. Fraser Lyon,
Attorney G.eneral. !
"LABEL CASE" CONTINUED.
Bichland Court Resumed, Judge Er
nest Gary Presiding.
Columbia, Jan. 15.-The Richland
county court of general -sessions re
sumed its work this morning, with
Judge Ernest Gary preiding. The
election of Judge Wa;ts to the su
preme bench necesra nd adjournmeni
of the Richland county court until an
other judge could be secured, and
IJudge Ernest Gary, who was disenf
gaged, was assigned to preside.
This morning a continuance was
granted in the "label" case on motioul
of the State. On the State's showing I
that one of their witnesses was sick,
that Mr. Stevenson's legislative duties
would prevent his giving any time to
the case, and that Mr. Abney was ab
sent from the city on business. Col.
P. H. Nelson, of counsel for the de
fence, announced that he would not
oppose a motion for continuance, pro
vided it was marked on the docket as
granted on motion of the State. The
defendants were ready for trial.
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Trial 'ackage by meit 10 e ets.
WIl. E. P?EidIAM A S(0
44
___ .Coprht lvul. ur
Neither will nt
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the m)il. If yo1
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furnish gris foi
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ST ART AN AC(
the Newherry
OF NEWB]
lubi,Nebrr _Luen 1, CA. SOUTHE
p1hedule in ofetOtbr6 11 ceuresafci
peu e r niae arent aradbn
A.h.eL New 3 (B.-Thes
.Smte.... a..i.4al 6.2op k gurated.
olumb , N.ber & LuetB 8:5 a.Om.-No
.scheeInety.. obe 6.1.4p 3.1910 Slespingecar
.cewblerr. In ..te .1256p n .20p andGeenvi
. Alntn. . .. 15pm2. 3.p 11:0N. .-No. e
. Laumtrn.......92.5pm 2.2pm guaraneetodolu
- .C.,& W.L. 8:51:3 . ntNo
. Greenvill. ....00p5m 12.20pm Charlesato8
. Pspritur.. .4pm 12.20pm 2:45pin m.-o.r
v.Nebery.S. A.15L- 2p bato Greeni
. Abbinle.. ...55pm 1.02pm 11:505 a. m-No. ]
. Larenwoo.....273pm 1.33pm ville to Colui
. Greenvs... .. .. 6.05pm 10.30am iCarso 8:e
. SAtana..... .. 8.45pm 82.00am 24 .m-o
S.C . 54. . bi5.to=reen'-.
. Cohbbia.... .. 350pm 1.15am'90p.m-o
. Grosperity... .. 6.26pm 9.50am y- etoCl
. Atebsr.......6.4pm 90.32am igcrGe
. Alntn.... ....5pm 8.44am
A C. & W . ..
. Coeevbill.. ....9.O0pm 71.00am
~v.Prspeit... .6m 9Sa
. Geweroy... ..28a4m 2.38am U U
. Aubeill.... ...5am 820am
. Athens.. .... .. 5.4am 11.59pmn
. Atlanta.. .....7.5am 9.55pm No cat
Nos. 52 and 53 arrive and .depart catch 2
>mr Union Station, Columbia, daily, value I
d run through between Charleston
id Greenville.gaai
Nos. 54 and bo arrive and depart Square
rvais street, Coluj!wtn .- for yoi
pt Sunday, and run through be- ad "I
-en Columbia and Greenville. a
For information ask agents or write No hou:~
W. J. Craig, P. T. M-, unfair c
Wilmington, N. C. since wt
.F. Livingston, S A- trolled l
Columbia. I. C.
I Hones
A Fierce Night Alarm.
sthe h&oarse, startling cough of a For eve
hild, suddenly attacked by croup. Of- full vall
n.it aroused Lewis Chamblin, of Man
teter, 0., (R. F. D. 2' fcr their four judice y
hilren, were greatiy subject'to eroup' with us
Sometimes in severe attacks," he
vrote, "we avere afraid they would die,
ut since we proved what a oertain
~medy Dr. King's New Discovery is, 0
e have no fear. We rely on it for
oup and for coughs, colds or any
roat or lung trouble.'' So do tho"-'
ands of others. So may you. ASthmIIa, Space does
y fever, la grippe, whooping cough,
rteorrhages fiy ,before it. 50ct and
a Tral 'ru,ttIlee. Sold by W. E
A 14
TARi A lA
JUNT TOMYAY
toney spent come
furnish grist for
i start with it a
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'OUNT TO-DAY
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ERRY, S. C.
- - - $50,000.00
J. E. NORWOOD, Cashier.
3N RAILWAY. Arrives Charleston 8:15 a. m. Ar
- rive Savannah 4:15 a. m. Jack
re December 8, 1911. sonville 8:30 a. m.
Departures N(ew- Four further information call da
y, . C. ticket agents, or E. H. Coapmnan, Y. P.
__ & -G. M., Washington, D. C.; 3., L.
schedule figures are Meek, A. G. P. A., Atlata, Ga., or F~
ion only and are not L. Jenkins, T. P. A., Augusta, Ga.
15, daily from Co
-reenville. Pullman ITCOFATALNTNE
between CharlestonTeanuleeigothsac
8, daily, from Green-ofPoprt,SC,wilehlla
abia. Arrives Colum- te'ako usa,Fb 3 92
,Augusta 8:35 P. mn. a 'lc .i. twihtm h
15 p. elcinomircoswl.b ed
7, daily, from Colum
rille.suh ohr bsn s trnatda
.6, daily, from Green-mycm eoetemeig
abia. Pullman sleep-R.TPUH
DSFORTESSETHA ANL HERET.
~n o qeeeThe unsualpeed.ing h t
oryoronyolr of ale ee aticlBnk
tedtrhoe refundnesda Feb.: a3nd12
daeahand evr timec p m,aswhc meth
i hnafeerilestio ofrecedors iceshl, n
LELLu onaygelethat ousns trauate.a
ie n erthcouda e o the iteting.
nie antoeo Ch arle . I-2- t bCaswihh.e
TH FAR ANDSQUTAN DALLERRE
nt pennmthodsotatin"bte sadoe moy ton
dea ech devery timae. masmr