Historical Newspapers of South Carolina

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The Opinion Filed at Last. State Supreme Court and the Registration Law. Majority Dismiss Gen. Butler's Case-Chief Justice Mciver Holds That fthe Court Has Jurisdic? tion and That The Law is "LD constitution al. Columbia State, July 7 The Supreme Court has finally dis? missed the registration law test case entitled Matthew C. Butler against W. H. Ellerbe, comptroller general of the State of South Carolina, and W. T. C. Bates, treasurer of the State of South Carolina. This is the case brought by General Butler at the November ierm, J.894, of the Supreme Court? to test the constitutionality of the registration laws of the State. The case was heard on the 3d of last / December, and the people 1 of the whole State have waited patiently ever since for the decision of the Su? preme Co'urt. The delay has caused the court to be severely criticized, and it has ii been complained that the delay was I ^ due to the political considerations in? > volved. Justices Pope and Gary agree in dismissing the case, but do so on dif? ferent grounds. The decision of Mr. Justice Pope dismisses the proceed? ing on the ground that the petitioner has a plain and adequate remedy at law. Mr. Justice Gary dismisses the proceeding on the ground pf the want foequity in the petition. Justice Mciver dissents from both and holds that the proceeding is a proper proceeding ; that the petition? er is entitled to the relief under the proceedings, which is asked, and de 'clares the whole registration law un? constitutional, null and void. Ju8?'rec*Pope wrote the opinion of the court. J U8tice Gary also filed an opinion of some twenty-one pages of foolscap, which in substance agreed with the positions taken by Justice Pope. The dissenting opinion cf the Chief Justice is twenty-nine page6 in length The object of the case was to test the constitutionality of the registra? tion law, bu: it was in the form of a petition asking that the State Treas? urer be permanently restrained from applying funds in the State Treasury to the payment of salaries for the su? pervisors of registration Justice Pope says in his opinion : "The delay in rendering the judgment of the court is owing to the failure to prepare this separate opinion at an earlier day. That when a grave con? stitutional question is to be passed upon, unless it is imperatively neces? sary that there shall be no delay, I am disposed to view it as my duty to hear and consider thoroughly what is presented " He differs with Mr. Gary in the j view that there is rn effect a suit against the State, and he cites, among other cases, the case of Evans vs. the State Treasurer, i J 38 So. Ca , and the case of Robertson vs. the State Treasurer, in regard to the val- ; idity of $5,250,000 of State bonds. 'But he agrees with Mr. Justice Gary that the proceeding should be dis? missed, putting it upon the ground that he had adequate remedy at law, and concludes that the court is with? out jurisdiction in the premises. Mr Gary holds in his opinion that j the proceeding M'S in effect a suit; against the State Second-The State is an indispen? sable party. Third-The question as to the con stitutionality of the ac's cannot prop? erly arise, as there are other grounds upon which the court can rest its! judgment. Fourth-if the State could be sued she would be estopped from interpos? ing the objection* ttiat the services J rendered at her instance and for her '? benefit#were illegal The appropria? tion? show that the State desired the payment of such services. Equity will not therefore iend its aid to coir.-1 pel the State, indirectly through the defendants as lier fiscal officers, to do that which the State could not be compelled to do in a direct proceed? ing'. . j The rest of the opinion is devoted . mainly to a support of these four main propositions. Taking these views, he regards it j unnecessary to dis-::1^ the constitu? tionality or unconstitutionality of the act itself Chief Justice Mciver holds that each taxpayer has an interest in the matter, and that the plaintiff has the right of action. That he cannot see how '.he plaintiff in this case is estop ed from bringing the action simply because he has held ofEce while the registration laws were in force This disposes of the two main objections raised by the Attorney General to the petition. Coming to the real question at issue, the constitutionality of the laws, the Chief Justice save : "It ?eems to be settled that even in States whose constitutions are silent upon the subject, a statute requiring the registration of voters, is not per? se unconstitutional, as much a statute is regarded as a mer? regulation of the constitutional right to vote, and is designed to furnish evidence of the fact that the voter is possessed of the qualifications fixed by the con? stitution. But it seems to be well settled that where the purport and ??BanBniBgtoMt^aagHHiiBitn ? effect of a registration law is I to or take away any of the qu? j tions preKcribed by the constit I or where its effect is to obstruct vert, or even necessarily impec exercise of the right conferr : the constitution, it cannot be RU ,' ed, but must be held an uncoi j tional invasion of the constitu right of suffrage." The Chief Justice then tak ! several of the provisions of the j tration laws and shows that the ; unreasonable in their demande j are in direct conflict with the c ; lotion. He adds : "The featu ; our registration law which have ? been shown to be unconstitul are so intimately connected with so interwoven with other provi I that the whole act must be dec unconstitutional." Justice Mciver continues : '? the preparation of the foreg opinion, which was as usual, milted to my associates for their j sideration, and they have both i pared separate opinions, in w j while not considering or decli what I regard as the real questh j the case, they both concur in hol< though differing on one point, the action cannot be maiutaine jurisdk?tional grounds, and li concur in rendering judgment the complaint or petitioner, as called, must be dismissed. "Of course, if these jurisdicti j grounds are tenable and this cou i without jurisdiction in the case, j is an enrJ of the matter ; and any ! sideration *of the merits of the would be, at least superfluous, if j absolutely improper. * * * "But as I do not think any of ti j jurisdictional grounds are tens j and on the contrary, am enti i satisfied that this court has jurie j tion, and is therefore bound to j cide the issue presented, I must i here to the views hereinbefore pres8sed. . "A proper respect, however, the views of my associates, whic is always a pleasure for me to them, as well as a due regard for gravity of the issue presented, quire that I should not content i self with a simple declaration th; do not consider the jurisdictional jection tenable, but should go on ? consider the ground upon wh these objections are based, J this I propose to do as bril as the importance of the inquiry \ permit. "First, it is objected that th?t practically an action against l State, and to which she is an inc! pensable part. If this be the ti nature of the action, then it is cit that this court has no jurisdicti? in the absence of any consent which there is no pretense on t j part of the State. The import* j inquiry, therefore, is ii this acti can in any proper sens? be regard as an action against the State I not think so, for the following rt sons : The object of this actio?: not to affect injuriously any proper or rights of property of the Stat If the plaiutaiff should obtain jud ment in the case no interests of tl State could possibly be affected i juriously thereby. In this respe the present case differs widely fro the cases of Lowry vs Thompso supra ; La vs. Jumnel, I OT U. S and the Columbia Water Power Cor pany vs. Columbia Electric Strei Railroad, Light and Power Company 20 S. C. Hep , 1.002. which seem t be principally relied upon, for in eac of these cases some interest of th property right of the State wg sought to be effected, while such not the case in the present actio/ I think it is clear, therefore, withot going further into the authorifjet that this case cannot possibly bo-rt garded as an action against the Stat to which she is an indispensabl party. "While it is quite true that th question of the constitutionality of ai act of the Legislature should not' bi considered in a case where such casi can be decided upon other grounds as that is in fact nothing more thai saying that *!?e constitutionality of ai act of the Legislature should not bi unnecessarily assailed for considera tions of comity and respect, whicl should always exist ameng the differ ent departments of the government would forbid the judiciary depart merit of the government from un necessarily assailing the action of it* co ordinate department. But whet : a case is presented to a court for its : decision, in which it is necessary foi a proper decision that the question oi the constitutionality of an act of the Legislature should be considered and ; determined, then it ie not only the right, but the duty of the court to consider such questions, and ii the act in question is found to be in con? flict with the constitution the court ; must say RO. That, in my judgment, is precisely the attitude of the case ; now under consideration. The ob? ject of the action is to restrain and I enjoin certain public officers of the i State, who are the custodians of the 'public funds from applying any part thereof to an illegal purpAfce, to wit, the payment of the salaries of certain so-called public officers, supervisors ; of registration, upon the ground that there is no valid law for the appoint? ment of such officers. So that the i vital question in the case, and the one , that lies at the very foundation of it, I is whether there is any valid law pro viding for the appointment of super? visors of registration ; for if there is no such valid law, then it is clear that the public funds cannot propel be applied to the payment of* t salaries of persons claiming to he offices not established by law. No as there is no doubt nf tho fact tl what purports to he an act of t Legislature has been 6pread upon t statute books providing for t establishment of such officers and fi ing the salaries thereof, and the 01 claim is that such so-called act without constitutional authority, a for that reason only has not the for of law, it follows conclusively tl; the question as to the constitutional' of what has been termed for couv( ience the registration law, necessar; arises in this case, and the solution that question is absolutely cssent to the decision of the case Indee outside of questions of jurisdicti and procedure, it is the only que tion in the case '.Another objection ?6 stated in the words: 'If the State could be su she would be estopped from inti posing the objection that the servie rendered at her instance and for h benefit were ?l?*>r*l. Che appropr tion shows that ^iate desires ti payment of such services Equi will not therefore lend its aid to coi pel the State indirectly through tl defendants as her fiscal officers to < that which the State could not 1 compelled to do in a direct procee ing.' It seems to me that this obje tion ignores the important and vit distinction between the legislatu and the State. The legislature is n the State, but is simply one of tl agencies or departments of t) ' government, called into existence t I the voice of the people, who are tl ! source of all power, as expressed ; ! the constitution, The legislature ce j only act lawfully within the limi ? prescribed in the. constitution, ar: ; any action on their part in conf?n with the provisions of the constit tion is without lawful authority, ati therefore null and void, not biodin on the organic body, so-called 'tli State,' or upon the people compo&in such organic bod}*. Ilence th inquiry inevitably comes bac to the question whether the regii I tration law establishing the office < supervisor of registration and provic ing for the salary of such office is coi stituti?>? al. If it is, then clearly til present action cannot be maintained but if ir. is not, then it necessarily fo lows that the public funds cannot b lawfully applied to the payaient of sue salaries, aud it seems to me that DOL?; ing can be clearer than that any tai payer, whether one or more, may it voke the aid of the court to preveo the fiscal officers of the State from ap plying the funds in the treasury to au purpose not authorized by law, for, be sides the fact that such funds are de rived from taxes levied and collecte* from the people of the Stare, and ii which, therefore, every taxpayer i more or less interested, the coostitu tion expressly provides that uo mone; shall be drawn from the treasury but ii pursuance of an appropriation made b] law.' Art IL, Sec. 22. And this pro hibitiou is repeated practically io thi same terms io Art. IX , Sec. 12. It i: not correct to say that the State ha? expressed auy desire upoD rhe suhjec uotil it is shown that there is some vaiid act of the law-makiog departmen of the goveromeot estaiishio?- t h t office of supervisor of registration anc fixing the saiary of such office. "Fourth. AU the otr.er objectioci to the jurisdiction of this court, excepi the last, which will be presently con? sidered, are based, as it seems to me, upon a misconception of the true nature aod real object of the actioo. This is oot an action hy which the plaintif] seek to obtain relief against a wrong either doDe or threateoed against him as an elector or vorer, and the fact that there is oo allegation io the complaint that either the plaiotiff or aoy other citirixjn of the State has beec deprived of the right of suffrage by reasoo of rhe provisioos of the registration law, is a matter of uo consequence, for such au allegation wouid oot be pertiuent to the issue presented by this act. Cou cediug. for the purpose of this ioquiry ooly, that no citizen of this State en? titled to exercise the right of suffrage Ins ever yet becu deprived of such right by the operation cf the law for I do such an allegation would uot be per not perceive how ?hat could affect the real issue preseoted by this case. The wrong complained of is that the fiscal officers of the goveromeot have ex? pressed their purpose to apply aod are about to apply a portioo of the public funds uoder their custody to ao illegal purpose, and the remedy sought is to preveot such a l?gal diversioo of the public funds from the purposes to which they cao alone be lawfully ap? plied. The actioo is brought by the plaintiff as a taxpayer, and the all?? gation that he ts also a duly qualified elector is wholly superfluous, tor I au> unable to see any rcasou why aoy citi Z20 of the State, who is a taxpayer, a female for example, whether au elec? tor or not. may not bring an action like this to prevent any illegal diyersioo of the public fuods io which ali the tax? payers, whether electors or oot, are interested. ''It ooly remaios to coosider the last objection to rhe jurisdiction which is based upon the well-settled doctrine that a court of equity will oot take jurisdiction of the name case where thc plaintiff has a plain and adequate remedy at law. The bare ?tatemeot of thc doctrine is sufficient to ??how that, iu order to sustain this objection it must appear that the plaiotiff has a plaio and adequate remedy at law ; aud iu my judgment this bas oot been and j caooot be made to appear. What other remedy a taxpayer has to prevent an illegal diversion of the public funds by the fiscal officers of the government than that adopted in the present case has not been suggested, and I am at a loss to conceive of any. lt will be ob? served that the fund here in question was derived from taxes ievied under and by virtue of the act to raise sup? plies for the fiacai year commencing November 1, 1803, *for the purpose of meeting appropriations to defray the current expenses of the government' for that fiscal year, and, so far as I am informed, there never wa? any special or separate levy of taxes to pay rhe salaries of supervisors of registration. How then was it possible fer the tax? payer to raise the issue here presented by refusing to pay his taxes or by pay ing the same under protest and bring? ing an action to recover them back. The action does not and should not proceed upoo the ground that any wrong was done to the taxpayer iu levying and collecting the taxes upon which the fund in question was derived, for such taxes were levied and collected for au entirely lawful and proper pur? pose, the payment of the curren ex? penses of the State government, and ' ?nce no resistence in any form could have been made to such levy and col? lection But the wrong complained of is that after the fund derived from tax? ation had been properly placed in the treasury, a portion of it is about to be diverted from the legal purposes to which it is properly applicable and ap? plied to an illegal purpose; and how j that wrong can be prevented except by an injunction forbidding the officer charged with the custody of the fund from so misapplying it, I must confess , I am utterly unable to conceive I cannot, therefore, concur in thc conclusion reached by the majority of , the court that the complaint should be dismissed for want of jurisdiction On the contrary, I am satisfied that this court has jurisdiction and is bound to decide the real questiou in the case, viz : the question as to the constitu- ; tiooality ot the registration law Upon that question I have hereinbefore set ! forth the reason for my conclusion, to which I still adhere that the said law is clearly unconstitutianol "I am therefore of the opinion that the prayer of the complaint insofar as it seeks to enjoin the Comptroller Geo- ! eral from drawing any warrant on the i State treasurer for the pay of any su- ' pervisor of registration and to enjoin the State treasurer from paying any ! such warrant, should be granted." A leading attorney, who read the Chief Justices opinion all the way j through, thus summarizes it: "The Chief Justice announces the j conclusion that he arrives at on the merits of the controversy, namely, the I constitutionality of the registration j laws. Ile says in substance that these enactments are in violation of sundry j provisions of the State constitution, all of which he enumerates. He holds j that the many provisions and require- ' meots set forth in the registration laws as prerequisites to the right of ballot are burdensome and uneven, and could not have been intended to merely reg- : ulate the right, of suffrage, bot upon ; the contrary, the effect of th; provi? sions of the law is to abridge nod im? pede the citizen in registering find vot? ing. He says that all registration laws to bs constitutional, must have for ] their purpose the regulation of tho suffrage, and their province should be tu facilitate aod not to discouraoe regis tration. "He holds that the closing of the books on the first of July, and allow ?og no provision for registration, ; ex? cept for minors, between July 1st and election day, is also unconstitutional ; ! also, that the scheme of the ac:, which j is to have but one general original reg- : istration, is contrary to the section of j the constitution, which requires the j registration from titue to time of all electors in the State. He also holds ? that ttie certificate feature of the act in effect requires double registration - namely, that the voter must both be registered on the books and also have a certificate of registration, and present it to the poll?, and that such provision 1 is in contravetitioo to the State consti? tution. He poiuts out various other sections of the act that are constitution? ally obnoxious. And he says 'hat there are so many provisions of the | registration law that are unconstitu? tional, and that they are so interwoven with the provisions that are not other- j wise void that the whole act must be declared unconstitutional.'' Love the Living. How is it that we like the coats and the garments even better when the seamstress is dead than we did when she was actually making them ? That is a tender mystery in life. It is a fact everywhere. The little child's little toy becomes infinitely precious when the tiny player can no more handle it. And the two little shoes are the most precious property in the house when the lit? tle feet that wore them are in God's acre. Let us love ono another whilst we live. Not a word do I say against the sentiment which en larges the actions of the dead, but I would speak for a kind word on le hall of those who are sitting next you, and making your own house glad by their dolt fingers and their loving hearts -Dr. Parker. Kew medicines have helli thrir ground 50 successfully HS Ayer'i Cherry Pectoral. During the past S fry years, it has neen the most popular of all tough-cures and the de- ; marni for it to-day is greater than ever be fore. Prompt to act and eure to cure. ' A New Departure in Law. Judge Townsend's Hilling as to Jurymen. No Man Opposed to the Enactment of a Law to be Trusted With the Trial of Offenders Against the Law. COLUMBIA, July S.-The dispen? sary law has brought forth some cu? rious law and rare judicial holding. Some of the views of the new judi? ciary have, to say the least, been orthodox, but of the new members of the Bench Judge Townsend 6tands high on account of his independent course while connected with the Administration To-day he took a position in regard to the competency j of jurors that is something unusual at : this Court, and one which, if continu? ed, will have considerable effect on certain lines In a word, jurors who were opposed to the dispensary law, but who were not opposed to its enforcement, were stood aside by the order of the Caurt. The Court stenographer was asked for some of the instances to indicate the policy ol the Court "S. G. McQ,uarters, opposed to the law ; not opposed to the enforcement ,of the dispensary law. With his opposition to the law could go on ury and give a verdict accord ing to the law and evidence, and was able to give the prisoner any reasonable doubt.. Mr. McMaster submitted that the juror was competent. The Court: "Ido not think he is disinterested," and ordered the juror to stand aside J. D. Frost, H Joyner, J. F Wil? liams and Messrs. Livingston and Fray lick were 6tood aside on the same grounds, Mr Milton Levert, who is quite an old man. "was opposed to the man? ner in which the dispensary law was being enforced, but could give a ver? dict according to the law and evi? dence and would not allow his oppo- i sitiou to the dispensary law to ! actuate him in his consideration of the case.r Stood aside by the Court. This was the course of the State in j the case of Bill Beatie, who was ! charged with selling liquor in viola tion to the dispensar}* law. Beatie i was tried once befure and the jury j after being out all night was unable ! to come to any conclusion. The opposition of the jurors to the law, more expressed by 6orae than by others, prevented a jury being j drawn from the first panel, so an extra venire had to be drawn and the Court took a recess until 3 o'clock to get a jury to try a poor negro. It will be noted that the run of! convictions have been of poor color? ed men Assistant Attorney General Town? send was in Court for the purpose of co-operating with Solicitor Nelson in the prosecution of the case. Ile says that he is after bigger game, and it might be noted that sornd other cases like that against Bowen are likely tc be heard from if certain whisperings are to be counted. Mr. McMaster, who is the counsel for the colored man, has had objec? tion noted to the rulings of Judge Townsend, and if there should be need for it expects to appeal from the decision of the Court. At the afternoon session of the j Court the extra venire that had been summoned to try the negro. Bill Beatie appeared. John L Casey, Chris Jacobs, T. B Aughtry, Don Harrison, E. E Calvo, W. N. Abbot, Jeff Espotono, Harry Wallace. E. T. Hendrix and J. Klinebeek were stood aside on the grounds of their ob | jection to the law in one 6hfipe or another. Mr. Shnler was accepted. After Alderman Trump had been ob- 1 jected to on the ground that he was opposed to the law, and the venire : was exhausted, the State announced that it would accept Mr. Trump rather than have to summon another venire Mr McMaster objected to Trump on the ground that he had , been presented and was made to stand aside on the very ground that others had been made to stand aside, and that he could not be recalled. The objection was overruled and Mr. Trump was made foreman of the jury. In the argument Mr. McMaster called attention to the undue efforts made to convict in such cases. That in the ordinary run of cases the State did not appear, but in this case the assistant Attorney General arid the "great and mighty constables" were present in full force. Judge Townsend, in charging the jury, said that the case was one of j fact. The law had been placed upon the statute books, and with its expe? diency neither he nor the jury had j anything to do. The jury in the Bill Beatie case does not show much hope of coming to an agreement. At 10.30 o'clock thc jury announced that no verdict had been reached. This is the sec? ond time the case of the lonesome negro has been given juries, and this time there was only one man from the city on the jury, and PtiH no verdict was reached, after hours The negro was the only witness for the defence. The trial to day cost at least $125 and it was all all about 25 cents worth of liquor. Abolishing Days of Absti? nence Except Friday. Nsw YORK, July 7 -The Time* to morrow will say : .'The Rev. Thomas Ducey, pastor of St. Leo's Roman Catholic Church in this city, is authority for the state? ment that the Rope has promulgated a decree abolishing all the days ot abstinence in the year, except Fri? days, even during Lent. This de? cree, however, is applicable only to poor persons and their families. "That such a Papal decree had been issued has been surmised in Catholic circles for some time. That it was an absolute fact, the Rev. Father Ducey assured a reporter for the New York Times last ?light." "It is absolutely correct arid authentic," Father Ducey said. "While I have not 6een the official document sent to the bishops of the United States, the information came from a trustworthy Roman Catholic correspondent about two months ago. I know that this decree of the Holy Father has been promulgated in the Western part of the United States, and I presume the archbishop of New York will convey this informa? tion to the poor of the archdiocese when he has formulated the ? an? nouncement - ^ .? .*. *? -- New York's Dry Sunday. Saloon Men Take Roosevelt at His Word, and Close Up. NEW YORK, July 7.-This city to-day had somewhat the appearance of a Mairre prohibition town. There were less saloons doing business than on last Sunday. Many of them which had done a quiet business on previous Sun? days were closed to day beyond all doubt. Many of the soloon proprietors had been impressed by the statement of President Rosevelt of the police de? partment during the week past, that the excise law would be strictly en? forced on Sunday and that any one caught violating it would be arrested President Roosevelt had convinced the saloon keepers that there would be no "blufl" in enforcing the law, so most of them decided not to take any chan? ces. A few. however, kept open to-uay, but, as on las': Sunday, they would oot admit any one unknown to them. Heretofore, on Sundays, in the hole! cafes, small plates of cheese and crack? ers were placed on every table and any who presented a respectable appearance could take a seat, and by eating, or pretending to eat some of the cheese ? or crackers, could get whatever he called for to drink. This was changed ! to-day at all of the hotels. Patrons were banded a menu and required to order something to eat before anything to drink was served to them. The fa? mous "Tenderloin" district was no ex? ception to the "dryness"' prevailing in other Darts of the city and the Bowery was practically deserted In many churches to-day the minis? ters delivered sermons extolling the I crusade against the opening of the sa? loons on Sunday. Removed the Ban From the G. A. R. ST. LOUIS, MO., July 8.- Arch? bishop Kain of the Roman Catholic Dit-cese of St. Louis, has made a decision that removes the ban placed by some priests on Grand Army funerals. Under his ruling, members of the G. A. R. attending funerals may enter the church wearing their uuiforms and in.Mguia, and may conduct funeral services in accordance with their ritual in Catholic cemeteries. Cures OTHERS, WILL Cure You. AYE R'S Sarsaparilla MAKES THE * WEAK STRONG. 52d Year. The Great Faim, Industrial r:a Stock Journal of the South. ONE YEAS FOB Si. Sample copies and Premium List will be mailed FREE on application to THF- PYLTIVATOR PUBLISHING CO. Boi 415, Atlanta. Ga NOTICE. I TCAXT every man and woman in the United States interested in the Opmm and %Vh-.<kv habits to have one of mr books on theee dis" ease*. Address B. M. Woollev. Atlanta, ?a. Box 382, and one will be tent you tree. Choice writing Paper tea cents j*r box a: S. G. Oateen & Co's.