The times and democrat. [volume] (Orangeburg, S.C.) 1881-current, 1908-09-18
AGAINST THE STATE.
JUDGE PRITCHARD'S DECISION
UPHELD on APPEAL.
The Court Says the Dispensa,y Conn
missioners Held Dispcnsary Funds
as Trustees for Creditors.


The United States Circuit Court
%. Appeals il q decision handed
dawn at Richmond, Va, on Wednes-
day sustained the opinion of Judge
J. c. Friichard. in the famous case
OF Fleischmann l& Co.. and others
against the South Carolina dispen-
sary commission. The opinion Was
written by Judge James e. Boyd, OF
Greensboro, N. c., and vas concur
red in by his associates, Judge Ed
mund Waddill and Chief Justice Full
Ter. The opinion consumes more than
forty pages Of closely typewriter
matter, great part of which is de-
voted to q statement of the facts.
In the opinion, Judge Boyd states:
There are two main propositions,
the jurisdictional, which presents the
question whether this suit against
the Stateo of South Carolina, and there
fore forbidden by the eleventh
amendment, and, second, whether
the dispensary commission IS court
incapable of having its proceedings
STAYED by writ of injunction, grant
ed by Federal court. Does this
case come within the limits present.
ed? In this connection it is neces-
sury to inquire if the State has any
present interest in the fund in contro-
yersy. which can be divested, by a
judicial determination OF the amount
II any, Justly due the complainant or
has the State, by an act Of legisla-
ture, reliuquished all right, II any
existed, to enough OF the fund TO
nay all just debts of the state dls-
pensary. The fund being III the
hands OF the commission, charged
with the duty of abolishins the dis
pensary. the State has no interest IN
so much thereof rs IS necessary to
pay the just debts.
"In what capacity asks the
court, are the members of the COM
mission acting? Are they officers of
the State Of Sorth Carolina or Off
GERS appointed under the act OF the
LEGISLATURE empowered to take pos
session of certain fund and direct
ed to administer such fund in GER
tain manner?
I'VE arc constrained to hold that
the funds in their hands are held IN
trust for payment of the debts men
! toned, that the creditors of the dis
pensary have property in the funds
in the hands of the commission to
the extent that the debts are shown
TO be just. and that judicial deter
minat:on of the true amount Of such
debts can in no way effect the rights
and interest Of the State.
Having therefore determined the
relation o! the appellants to the
funds in controversy, VIC answer the
question nropoundcd in the outset.
/ that this is not n suit against the
State. and that the complaint is not
forbidden to maintain his action by
| rhc eleventh amendment of the con-
ytitutiOn of the United States. This
suit is not against the State, nor is
=, III" Starc IN Indispensable party.
"r-rating the fund in tue hands OF
the %prollant. as Q trust fund. and
the duties Of the trustees being clear
" defined. the trustees are not even
:: necessary party 10 4 So Drought
10 compel the trustees TO discharge
their duties. Their position appears
70 be that the agents and repTcscn-
tatiycs of the debtor should consti-
tutc tribunal absolute in its charac-
ter to arbitrarily pass upon what. II
anything, is due an alleged creditor
and. if q claim be adiudged invalid
without further opportunity for re-
dress on the part of the creditor.
/ TO uphold such q contention would
he 10 deprive such a creditor of his
propcrty without due process ol
law
The court further announces tEa'
in the conception and adoption OF the
eleventh amendment. it never en-
tered the minds of the fraincrs Of
that amendment that sovereign
State could engage in the liquor
business, and become a trader b!