Historical Newspapers of South Carolina

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VOL. XX, NO. 31. DARLINGTON, S. C., THURSDAY, AUGUST 3, 1893. WHOLE NUMBER 965. LOCH LACONICS. MATTERS IN AND AROUND PROS PEROUS DARLINGTON. * A Column of Newt, Tersely Told, of Interesl to Our Many Readers. A colored man was carried to the lunatic asylum on Tuesday. A protracted meeting is in progress at the High Hill Bap tist Church. The annual meeting of the Darlington Agricultural Society will be held at the Fair Grounds on Tuesday next. The overseers of roads, who have been appointed by County Commissioner Gandr, would do well to read his notice insthis issue. . A number of Darlingtonians witnessed the series of baseball games played in Florence last week between that city and Rocky Mount, N. C. An overflow drain is being attached to the cistern at the artesian will so that the water therein may be kept fresh and pure by a constant flow. The Darlington Guards have received an invitation to join the Third and Fourth North ;• .Carolina regiments in their an- : ' trial encampment at Charlotte during the present month. The colored teachers’ associa tion for this county will meet in the Court House on Satur day. The white teachers’ as- sociation will meet at the same place on the Saturday follow- Jug. One of the most ominous look ing clouds that have ever been • seen here hung jover Darlington on Monday afternoon. Some uneasiness was caused, but the cloud passed by without doing apy damage. One of the recent and most noteworthy additions to the number of horses now being trained by the Darlington Driv ing Association is’MimWilkes”, a very fine colt, belonging to Mr. T. C. Poore, of Belton. Services will be held in the Prpsbytenan Church on Sun day "nrning next and will be oonduosu by.Mr. James Green, of Arkansas, a theological stu dent in the Southwestern Pres byterian University at Clarks ville, Tenn. The president of the county alliance requests us to state that the official announcement of the alliance rallies in this county (which.is published in another column) was not givep to tHe public,sooner because thespeak- ers.could not be obtained until after the meeting of the State Alliance. The annual announcement of the well known institution, Wofford College, appears in this issue. This is one ot the most popular colleges in the State, and deservedly so. Parents or guardians who contemplate sending their boys to college should read the Wofford An nouncement. At the meeting of the State Alliance at Walhalla last week ator W. D. Evans, of boro, was elected President, olutiofis which smack f of Third Party ism were .. Candidates for office made to promise to put loyalty to the Allia nee above loyalty to party caucus. C. G. Williams, who lost by fire last week la. to publish the fol lowing card: "I take this man ner of thanking the many who came so promptly assistance at the fire and iteful for the many tions o f sympathy since r, m and acts of »n ma *> ■ of kindness It is a matter of sincere regret mane *11 our people that the performance of the Florence —“*-“T troupe, in the opera t this place on Wednes- of last week, was so The affair advertised, so but r anything about night of the per- » rain poured in i presentation was *> a better au- has always ama- i and the is ihe regret from our sister city ithso poorare- • 1 ..... iflnMmf ifiTi fc ii fT > *ri PERSONAL PARAGRAPHS. Brief Mention About People You Know •nd^ People You Don’t Know. Mr. and Mrs. T. W. Norment have returned home. Mr. L. M. Norment returned on Monday from Laurinburg.N. Rev. aqd Mrs. John Stout have returned from the Ham mocks. , . Miss Maggie Jamison, of So ciety Hill, is visiting Mrs. H. Mclver. Mrs. S. L. Pierce has return ed from a visit to relatives in Georgia. Mrs. F. E. Norment and fami ly have returned from their trip to Charleston. W. F. Dargan, Esq., and Mas ter Woods Dargan have gone to the Hammocks. Mr. E. R. Cox has returned from a trip to the mountains of North Carolina. Misses Nettie and Alma Aich- el, of Charleston, are visiting Mrs. R. W. Boyd. Mr. E. M. Wells will leave on Monday for a two weeks’ stay at Wrightsville Sound.’ ' ‘-V Mr. J. W. Blackwell and fam ily have returned from a visit to Williamsburg county. Mr. A. Weinberg, who has been in the North Carolina mountains, has returned home. Miss Bessie Williamson left on Wednesday of last week for Murray’s Inlet, Horry county. Mrs. J. H. Mason and Miss Ethel Parrott, who have been visiting in Sumt#r, have return ed home. Misses Rosa and Bettie Beas ley, daughters of Rev. J. S. Beasley, of Marion, are visiting the Misses Kelley. Mr. W. J. Moorhead has moved into his residence on Oak Street, in East Darlington, which has just been completed. Messrs F. E. Norment, L. 8. Welling and Dr. J. M. Earle re turned on -Saturday from a fish ing trip to the Little Pee Dee River. Miss Sadie Rhett, who has been visiting the Misses Wil liamson, returned on Wednes day of last week to her home in Charleston. Misses Emma and El)a Har rell, who have been visiting their cousins, the Misses Kelley, returned on Tuesday to their home in Sumter. Mrs. C. T. Mason and her daughter, Miss Emma Mason, of Sumter, who have been visiting Mrs. J. H. Sanders, returned home on Monday. Messrs C. W. DuBose and L. G. McCall have returned from Cleveland Springs. Going i^nd returning they drove through the country in a buggy and it took three days to make the trip each way. Mr. Frank R. Rhodes, of Swift Creek, left on Saturday for an extended trip. Rumor has it that he will first visit the Hammock and from thence he will go to the World's Fair; crossing the continent he will vtsit Tacoma, Wash., go through California to Texas, thence to New Orleans, up the Mississippi River to St. Louis and on to New York, via Niagara Falls, and from thence he will return home. AS OTHERS SEE US. A Sumter Gentleman’s View of the Condition of our Crops. [Sumter Herald.] A gentleman who has recent ly visited what is known as- the Swift Creek section of Darling ton county, which lies ten miles north-west of the court house, says that the crops there are very good. The prospect for corn is equal to any ever known, cotton is also dome well, and the tobacco crop is fine. Some time back this section suffered to a limited extent for rain, not enough to seriously damage the crops however, but for some time past rain has been plenti ful, the seasons following just exactly to suit the needs of the crops. Around the town of Dar lington crops are poor owing to bad seasons, as may he seen from the railroads. Ada Hiers, colored, was hang ed in Walterboro on Friday for the murder of his brother-in- law. NOT IN CONTEMPT. JUDGE HUDSON’S LATEST DECI SION ABOUT THE DISPENSARY. There is No Authority for JusticePope’s Action, but the Circuit Judge is , PowerlesstoRemedy it. The trial of the county board of control and the county dis penser, charged with contempt of court in opening the dispen sary at this place, contrary to Judge Hudson’s order of injunc tion. was held in the Court House on Friday. Messrs Net ties & Nettles conducted the prosecution, assisted by C. A. Woods, Esq., of Marion, and Messrs Boyd & Brown appeared fov Mr. Floyd and Assistant At torney General Buchanan for the board of control as in the previous hearings. A numjer of interested spectators witness ed the proceedings. It was stated in the last issue of The News that it was gen eral!^ thought that nothing would be done to the defendants as they based their action upon the order of Justice Pope, of the Supreme Court The result of the trial bore out this belief. Judge Hudson refused to hold them for contempt for the rea son stated, that their action was based upon Justice Pope’s order. The Judge in his decis ion did not conceal the fact that he thought Justice Pope’s order illegal. Ht: says, “for this (Justice Pope’s) exercise of power we are aware of no au thority, but much to the con trary”. However, he said the matter had leii his jurisdiction when it went .to the higher court on appeal and he was powerless to furnish a remedy; the plaintiffs must find this rem edy in the Supreme Court as a body or in one of its members. Like all of Judge Hudson’s de cisions this one is clear and for cible. The following is the full text of THE JUDQE’S DECISION: On the 7th day of July, 1893, upon a rule to show cause, be fore me at my chambers at Dar lington, and after a full hearing in return to said rule, the de fendant, John Buckner Floyd, was enjoined and restrained from opening a dispensary in the town of Darlington, tinder the permit granted him by the other defendants aforesaid, con stituting the board of control for said county, under the Act of 24th December, 1892, com monly known as the Dispensary Act. The said board were like wise enjoined from granting to the said Floyd any other or fur ther permit to open tr dispensa ry for the sale of intoxicating liquors, and were likewise en joined from granting a permit to any other person whomsoev er. Shortly thereafter, to wit, on the 12th day of July, counsel for the defendants served notice of appeal to the Supreme Court from the said interlocutory or der of injunction and, as it is alleged, perfected said appeal and filed the papers in the office of the clerk of the Supreme Court. Thereupon the Attorney General, D. A. Townsend, as counsel for the appellant, with out notice to the respondents, applied to the Hon. Y. J. Pope, Associate Justice of the Su preme Court, at his chambers at Newberry, and ou the 19th day of July, instant, obtained an order from him staying and suspending the said interlocuto ry order or injunction until the further order of the Supreme Court. Immediately upon no tice of this order the said John Buckrihr Floyd opened the said dispensary, and proceeded in the sale of intoxicating liquors, contrary to the order of injunc tion issued against him July 7, instant, and is still'engaged in conducting the business of the dispensary. Conceiving the said order of Justice Pope to be unavailing to' supersede the interlocutory injunction of July 7, 1893, the pontiffs in the action aforesaid applied to me at my chambers on the 94th day of July, instant, and sued out a rule against the said defendants to show cause before me, at my chambers at Darlington on the 28th inst., why they should not be attach ed as for contempt in violating the interlocutory order of in junction granted in this cause on the 7th day of July afore said. The case came up ou return to this rule. I take the follow ing to be the law in regard to interlocutory injunctions: A Circuit Judge may grant a pre liminary or interlocutory in junction, at chambers, upon an ex parte motion, and without notice. In that event the de fendant may move upon notice for its dissolution, and this mo tion, if not made in open Court, must be made before the Judge who granted the injunction, if he be in his circuit; if not in his circuit the motion may be made before a Judge of any otfier cir cuit, or before a Justice of the Supreme Court. If a Circuit J udge be in his circuit an ap plication at chambers for au in junction, or a motion at cham bers to dissolve one granted by him, must be made before him, unless disqualified. Section 239 of the Code is as follows : “An order of injunc tion may be made by the Court of Common Pleas in which the action is brought, or by a Judge thereof, and in the absence from the circuit, or inability from any cause, of a Judge thereof, by a Judge of any other circuit, or a Justice of the Su preme Court.” Section 24C pro vides : “If an injunction be S anted by the Court or a Judge ereof, without notice, the de fendant at any time before the trial may apply upon no tice to the Court or a .Judge thereof, in which the action is brought, to vacate or nullify the same.” These are the reg ulations of the Code as to grant ing injunctions and foi vacating the same The present case does not involve the question of the original jurisdiction of the Supreme Court under the Con stitution to grant injunctions. After an injunction has been granted by the Court of Com mon Pleas, or a J udge thereof, upon due notice to the defend ant, it cannot be dissolved by another Circuit Judge nor by a Justice of the Supreme Court at chambers, either upon or with out notice to the plaintiff. Not even the Supreme Court in term can vacate an interlocutory in junction thus granted, unless it be after hearing on appeal. At the December term, 1787, in the case of the State ex rel Zimmerman vs Westmoreland it was held “That the Supreme Court has power to grant a writ of injunction, but it has no po w er to dissolve an injunction granted on Circuit.” Mss. case No 2,138, Appendix to 27, S. C. R , page 625. Now, the order of Justice Pope is nothing less than a dis solution of the injunc tion of July 7, and is the exercise of power at cham bers, and without notice, great er than is possessed by the Su preme Court in term time. In the case above cited an appeal was pending, just as in this. It is thus a well settled rule of ju risdiction, and it is the estab lished law and the practice of the Supreme Court, that pend ing an appeal the Supreme Court has no power to dissolve an interlocutory order of in junction granted by the Circuit Court, or a Judge thereof, un less after hearing on appeal. Surely then a Justice of that Court sitting in chambers can have no such power. But it is claimed that author ity for the order of Justice Pope is given by rule No 21 of the Supreme Court, which provides among other things that “either of the Justices may make orders in any cause pending in this Court, to stay proceedings which when served with the pa pers on which it was made shall stay the proceedings according to the terms of the,order.” This rule is proper and is necessary to enable the Supreme Court to maintain its exclusive control of a case therein pending. But it does not cover the order of Justice Pope, insofar as it un dertakes to supersede, that is, to dissolve the injunction of July 7. It does authorize a Jus tice to stay further proceedings in a cause when an appeal is pending. Such an order to stay does not disturb the interlocutor ry injunction, but preserve* the status quo and prevents any further proceedings in the causa by the Court below or by either party to the action- An order to stay an interlocutory injunc tion is without meaning and in operative, unless it be a manda tory injunction, but an order superseding an injunction oper^ ates its dissolution. The order of July 7 cannot be dissolved except by the Circuit Court, after hearing the case on its merits, or by the Supreme Court, after hearing the appeal Now is there an appeal pending in this case? The Circuit Court cannot be ousted of its jurisdic tion by a notice of appeal from a non-appealable order, as, for instance, an order refusing a motion for a non -suit, and others of a like purport. An order resting in the discretion of the Cour*. not involving the merits of the case nor affecting a sub stantial right when such order in effect does not determine the action, and does not prevent a judgment from which an appeal might be taken, is not appeal- able. See Subdivision 2, Sec tion 11, of the Code. An inter locutory order of injunction comes under the class of non- appealable orders. It does not ordinarily involve the merits, nor does it determine the action, or prevent a judgment from w hich an appeal might be ta ken. This has been expressly de cided in the case of Garlington vs. Copeland, 25 8. C. R 41. Subdivision 1 of said Si-ction provides that an appeal may be taken from “Any intermediate judgment, order or decree, in volving the merits in actions commenced in the Court of Com mon Pleas and General Sessions, brought there by original pro cess, or removed there from any inferior Court of jurisdiction, and final judgments in such actions.” Whilst an interlocutory order of injunction does not ordinarily involve the merits of the action, yet it is possible that in the na ture of actions such might be the case, and the question is, does the order of July 7th come within the exception and involve the merits? If this be an open question I cannot adjudicate it, because it is not the province of the Circuit Court, nor of a Judge thereof, to decide what matters are and what are not appealable to the Supreme Court if there is any doubt about it. It is only when the statute is explicit, or where the matter has been ad judicated by the Supreme Court, that the Circuit Court, or a Judge thereof, can disregard the notice of appeal. The in junction of July 7 is based prin cipally upon the opinion that the Act of December 24,1892, in its leading feature, the estab lishment of dispensaries in the State, is unconstitutional. The question o f constitutionality goes to the very root of the mat ter, and therefore involves the merits of the case and is appeal- able. Such seems to be the view of counsel on both sides, and I jvill hold, therefore, that an ap peal is pending and has been perfected. Upon the perfecting of the appeal the jurisdiction of the Supreme Court attached, and that of the Circuit Court was suspended. By the terms of the statute (See 356 of the Code) all further proceedings in the Court below became stayed, i. e., held in statu quo, the in junction remaining in full force until it should be dissolved by the Supreme Court after hear ing an appeal. So well is this law of the case established in this and other States, that it is scarcely worth while to cite authorities, l wjjl, however, refer to the following: The Sixth Avenue Railroml Company vs Gilbert, 71 New York Reports, 430, Court of Ap- K als, 26 Sickles; State vs Dillon, issouri Supreme Court, June 18, 1888, reported in Southwest ern Reports, Vol 8, page 781; Bullion, Beck & Campion Min ing Company vs Eureka Hill Mining Company and others, Supreme Court of Utah, report ed in Pacific Reports, Vol 13, page 174; Hover vs McDonald, Supreme Court Report, page 136, Vol 10, U. S. 109; Klinck vs Black, 14 8. C. Reports, 241. These cases decide that an ap peal from an order of injunction with the stay given by statute, or by order of Court, does not suspend, dissolve or supersede the order of injunction, but merely stays all further pro ceedings in the cause on circuit, in open Court or by a Judge thereof, and preserves the status quo, leaving the prohibitory in junction in full foroe, and leav ing the Court below, or a Judge thereof, at full liberty to pro ceed by rule in contempt to E unish the defendants for vio- iting the order of injunction pending appeal. All the cases, so far as I have been able to consult the author ities cited, concur in this plain, practical common sense view of the essential nature cf an In junction, the effect of an appeal therefrom, and the control which must in the very neces sity of the cose continue in the Court below, to protect its or ders of injunction. Unless this g swer continues to abide in the ourt below, nothwithstanding the appeal, the remedy by in- i 'unction would be 'fruitless, ’his is apparent without fur ther comment or illustration by examples. But the complica tion and the embarrassment in the present issue is that the or der oi Justice Pope is not sim ply a stay of proceedings. If that were all there would be no hesitation on my part to make the rule absolute and punish the defendants, or at least Floyd, for contempt of Court in violat ing the ir^rlocutory order of injunction, ' nothwithstanding the appeal. But the order of Justice Pope goes, as wo think, beyond tne statute and the rule of Court, and supersedes, that is, dis solves the injunctiQn. For this exercise Of power we are aware of no authority, but much to the contrary. As long as this order is of force the defendants are not in contempt. But who is to set it aside ? Who can declare it null and void? Can a Circuit Judge at chambers set aside and an nul an order in a cause pending in the Supreme Court, made by a Justice of that Court at cham bers? I think not. I think the only remedy is by motion ad dressed to the same Justice, to vacate or modify the order in question, as Rule 21 requires in case of an order of stay, or by motion addressed to another Justice of that Court when it is other than an order of stay, or by appeal to the full Court. It is a serious matter for the inferior Court, or a Judge there of, to disregard, dissolve or de clare void, an order emanating from a Judge of the Supreme Court. Whilst the present order ren ders unavailing and fruitless the remedy by injunction and is at variance with law and practice, so far as I understand it, yet it will have to be relieved against by the Supreme Court, or a Jus tice thereof. I feel powerless to grant the relief, and even if I had the power it is better that relief be had through the Su preme Court or a Justice there of. A conflict of jurisdiction should always be avoided if pos sible, and the Circuit Court or a Judge thereof should not dis regard an order emanating from a Justice of the Supreme Court, unless the right and necessity to do so be undoubted and ur gent. This is a motion for attach ment for contempt, in violating an order of injunction. That interlocutory order of injunc tion has been superseded; that is its dissolution. The defend ants, therefore, plead this order of dissolution, in full justifica tion, and disclaim all intention to treat this Court with con tempt. My first 'official notice of the order came in th’s return to the rule. The defence is good while the order of Justice Pope is of force. It can only be modi fied or vacated by application to the same, or some other Jus tice of the Supreme Court, or to the Supreme Court itself. As a Circuit Judge sitting in cham bers I have not the power. The argument of the grave and interesting question raised in the issue has been calm, clear, forcible, courteous and learned, calling for a full deliverance from me on all points raised. But the urgency of the case has compelled me to promptness, and in fact haste, in rendering this decision. Let the rule be discharged, and let the parties pay their respective costs. There being no attorney’s costs allowed by statute, only the costs of officers of the Court are to be paid, and it is so ordered. J. H. Hudson, Judge 4th Circuit. At Chambers, July 88, 1893. (Other Locals on 2nd Page.) < - The feeling of saperiority in the sterner sex is inborn. - “Mamma, do you think you’ll go to heaven?” said Jack, thoughtfully looking into his mother’s face. “Yes, dear, if I’m good,” said the little mother cautiously, wondering what would come next. “Then pleaee be good, for pa pa and I would ba lonesome without you. — Kate Field's Washington. Miss Rosa Mayo, of Cumber land, Virginia, a young lady promiuent in society circles, was killed by lightaing last i week. A WOMAN'S ADVICE. “Hello, George, have you or dered your summer suit yet ? “Well, don’t delay a minute, but go at once to McCall & Burch’s and— “What! That horrid thing 1 No, indeed, you shall never wear it. Makes you look like a slouch. Throw it away and get one of McCall & Burch’s, which they are selling at cost for cash. They’re just too lovely. And they always give such perfect fits. “That’s a dear. Yes, come early. “Good-bjk” AGreatSnit SALE. —AT— Our entire line of Spring and Summer Suits must be ’Closed out in the next sixty days. We will sell you anything in this line AT COST FOR CASH We mean what we ! All we want is for you to call and see for yourself. Another fresh arrival of $1 Negligee Shirts —the best in Darlington for the money. Something new in Windsor Scarfs at 50c, the very thing to wear with negligee shirts. We are still making a special ty of Shoes. We have about 35 pairs in sizes ranging from No. 5 to No. 7, which we are selling out re gardless of cost. These shoes are regular $5 and $6 goods, but owing to the unpopular sizes we will close them out at fl.50 per pair. A nice line of extra light weight coats, and vests; also ex tra pants. mm m . W h IN OUR HA' In our Hat stock we few more Straw Hats] we are selling at redv not at cost. i -: