The herald and news. [volume] (Newberry S.C.) 1903-1937, 1908-09-18
STATE LOOSES IN
DISPENSARY FIGHT
JUDGE PRITCHARD SUSTAINED
BY COURT OF APPEALS.
Trainers of Constitution Never Con-
ceiyed 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
cult court of Appeals Judge }. T..
Pritchard is sustained in his findings
in the now famous suit Of the
Fleischman company and others
against the South Carolina dlspen-
sary commission.
The opinion in this case was writ
ten by Judge James E Boyd, district
Judge Of Greensboro, n. G., and con-
Cured in by his associates, District
Judge Waddill and Chief Justice Full
Ter. The opinion is quite lengthy,
consuming more than forty pages of
closely typewriter matter. Much Of
this, however, 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 whether this is a
suit against the State of South Car
olina and, therefore, forbidden by
the 18th amendment; and, second,
whether the dispensary commission IS
a court incapable of having its pro-
eeedings stayed by a writ Of inJune-
ton by a federal court. Does this
case come within the limits prescrlb-
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 judicial determination Of the true
amount, if any, justly due to the
complainant? Or has the State, by
an act Of the legislature. rellnqulsh-
ed all rights, if any existed, to enough
of the fund to pay all the just debts
of the State dispensary?
t'The first proposition rests largely
upon the construction to be given to
the act Of the South Carolina leglsla-
ture of February 16, 1907, providing
for the appointment of a commission
to wind up the affairs of the State
dispensary, and Section Al of another
act abolishing the State dlspensary.
The State, through its legislature
has passed both the title and posses
sion of the fund to the commission
for the purposes designed in the act.
The fund being in the hands OF the
commission charged with this duty,
the State has no interest in 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, I. S. and many other
decisions. sustaining this position, IN
Guiding the case of Gunter, Attorney
General. VS.. Atlantic Coast Line Rail
road, 900. I. S., "In what capacl-
tv," asks the court, care the mem
bers of the commission acting? Are
they officers 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
lister such fund in certain manner!
We are constrained to hold that the
funds in their hands are held in trust
for the payment Of the debts men
toned, and that the creditors OF the
State dispensary have property IN
the fund in the hands Of the commls-
sion to the extent that the debts are
shown to be Just, and that a judicial
determination Of the true amount OF
such debts can in no way affect the
rights and interests Of the State.
"Having. therefore, determined the
relation of the appellants to the funds
in controversy, we answer the ques-
ton propounded in the outset that
this is not suit against The State,
and that the complainant is not for
hidden to maintain his action by the
18th amendment Of the constitution
of the United States. This suit IS
not against the State nor is the State
an indispensable party.
"Treatir. the funds in the hands
of the appellants as trust fund and
the duties Of the trustees being clear
" defined. the trustor is not even a