The herald and news. [volume] (Newberry S.C.) 1903-1937, 1908-09-18
STATE L00SES 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 al
opinion handed down shortly after
noon today by the United States cir
cult 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 ease was writ
ten by Judge James e Boyd, district
judge of Greensboro, n. c., and con-
CURED in by his associates, District
Judge Waddill and Chief Justice Ful-
Ter. The opinion is quite lengthy
consuming more than forty pages of
closely typewriter matter. Much Of
this, howevcr, 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 Il
suit against the State Of South Car
olina and, therefore, forbidden by
the llth amendment; and, second,
whether the dispensary commission is
a court incapable of having its pro-
ceedings stayed by writ of injunc-
ton by a federal court. Does this
case come within the limits prcscrib-
ed7 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, rclinquish-
ed all rights, if any existed, to enough
of the fund to pay all the just debts
Of the State diSpcnsary?
"The first proposition rests largely
upon the construction to be given to
the act of the South Carolina lcgisla-
ture Of February is, 1907, providing
FOR the appointment of a commission
to wind up the affairs of the State
dispensary, and Section AZ Of another
act abolishing the State dispensary.
Tho State, through its Legislature,
has passed both the title and possess
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 dcbts.'
Dispensary Fund a Trust Fund.
The court cites the ease Of the
United States KS. Planters Bank Of
Georgia (22. L. ST. and many other
decisions, sustaining this position, in
Guiding the case Of Guntcr, Attorney
General, vs.. Atlantic Coast Line Rail
road, (200. L. s., "In what capaci-
ty,' asks the court, care the men,
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 dispcnsary have a property III
the fund in the hands Of the commits
sion to the extent that the debts are
shown to be just, and that judicial
determination Of the true amount of
such debts can in no way ,.ffect the
rights and interests Of the State.
"Having, there fore, determined the
relation Of the appellants to the funds
in controversy, we answer the ques-
ton propoundcd in the outset that
this is not a suit against the State,
and that the complainant is not for
hidden 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 indispensable party.
"Trcating the funds in the hands
of the appellants as a trust fund and
the duties Of the trustees being clear
ly defined, the trustor is not even