Fleischman Co. v. Murray

Citation161 F. 152
PartiesFLEISCHMAN CO. v. MURRAY et al.
Decision Date29 January 1908
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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George B. Lester and Merrick & Barnard, for complainant.

J Fraser Lyon, Atty. Gen., W. F. Stevenson, Felder & Rountree and Abney & Muller, for defendants.

PRITCHARD Circuit Judge.

This is a suit in equity brought by the complainant to have the defendants declared trustees as to a certain fund in their hands, to determine the amount due to the complainant payable out of the said fund, and to compel the payment of the amount so found to be due.

The record shows that in 1892, the General Assembly of the state of South Carolina passed an act (Laws 1892, p. 62) regulating the purchase, sale, and distribution of intoxicating liquors within said state, and providing for a board consisting of three members, to be known as the 'Board of Directors of the State Dispensary. ' The said act also provided for a Dispensary Commissioner to be elected by the General Assembly, and made it the duty of the board of directors of the State Dispensary to purchase all alcoholic liquors for lawful use within the state, and to sell the same to the various county dispensaries, as provided in said act. The law further provided that all money arising from the sale of liquors by the board of directors of the State Dispensary should be deposited with the State Treasurer, to be held by him as a separate and distinct fund, and kept to the credit of the said board of directors of the State Dispensary; that the liquors purchased by the said board of directors of the State Dispensary should be paid for out of this fund upon a warrant to be issued by the said Dispensary Commissioner, such warrant to be issued by the Dispensary Commissioner at the direction of the said board of directors of the State Dispensary, and no part of this fund could be lawfully paid out by the State Treasurer, except upon warrants so issued; that while said law was still in force, the complainant sold to the board of directors of the State Dispensary, at prices mutually satisfactory and agreed upon, a large quantity of whisky and other spirituous liquors, all of which whisky and spirituous liquor, except a small portion of which was afterwards returned by the defendants, were duly accepted and sold by the said directors of the State Dispensary at a substantial profit, in accordance with the dispensary law, and the proceeds of such sales were in due course of administration deposited in and became a part of the fund hereinbefore referred to; that the General Assembly of the state of South Carolina, at its session held in 1907, passed an act providing for the abolition of the State Dispensary, which act was duly approved on the 16th day of February, 1907, and section 47 of which is as follows:

'Sec. 47. The State Dispensary is hereby abolished, and all acts and parts of acts inconsistent with this act, are hereby repealed: Provided, that this act shall not have the effect of preventing any violation of the present criminal law relating to the dispensary being punished as now provided by law for offenses heretofore committed. ' (Laws 1907, p. 480.)

That at the same session the said General Assembly of the state of South Carolina passed another act entitled 'An act to provide for the disposition of all property connected with the State Dispensary and to wind up its affairs,' which said act is in words and figures as follows:

'Session Laws, S.C., 1907.
'No. 402.
'An act to provide for the disposition of all property connected with the

State Dispensary, and to wind up its affairs.

'Sec. 1. Be it enacted by the General Assembly of the state of South Carolina that immediately upon the approval of this act, the Governor shall appoint a commission of well known business men, consisting of five members, none of whom shall be members of the General Assembly, to be known as the State Dispensary Commission, who shall each give bond for the faithful performance of the duties required, in the sum of $10,000.

'Sec. 2. Said Commission shall immediately organize by the election of a Chairman and a Secretary from their number.

'Sec. 3. It shall be the duty of said Commission to close out the entire business and property of the State Dispensary, except real estate, and including stock in the several county dispensaries by disposing of all goods and property connected therewith, by collecting all debts due and paying from the proceeds thereof all just liabilities at the earliest date practicable. Said Commission shall be at liberty to make such disposition upon such terms, times and conditions as their judgment may dictate: Provided, that no alcoholic liquors or beers shall be disposed of within the state, except to county dispensary boards, and all liquors illegally bought by the present management may be returned to the persons, firms or corporations, from whom purchased, and for determining the legality of said purchases, they are hereby authorized and directed to investigate fully the circumstances surrounding all contracts for liquors, and to employ such assistant counsel as may be approved by the Attorney General, and such expert accountants as stenographers, and any other person or persons the Commission may deem necessary for the ascertainment of any fact or facts connected with said State Dispensary and its management, or control, at any time in the past, and to take testimony, either within or without the state: Provided, further, that all payments shall be made in gold and silver coin of the United States, in United States currency, or in national bank notes.

'Sec. 4. The compensation of each member of said Commission shall be $5.00 per day for each day actually employed about the business and actual expenses for the time engaged: Provided, that they shall receive no compensation for service rendered on this Commission after January 1st, 1908.

'Sec. 5. The said Commission shall pay to the State Treasurer, after deducting their compensation and other expenses allowed by this Act, all surplus funds on hand, after paying all liabilities.

'Sec. 6. The said Commission is hereby authorized to employ such bookkeepers, accountants, clerks, assistants and employes as they may deem necessary, and to contract with them at the time of employment for their compensation.

'Sec. 7. The said Commission shall submit to the Governor at the earliest day practicable, a complete inventory of all property received by them, with a statement of the liabilities of the State Dispensary, and as soon as the affairs are liquidated, a report in full of their actings and doings.

'Sec. 8. That said Commission shall have full power and authority to investigate the past conduct and affairs of the Dispensary, and all the power and authority conferred upon the committee appointed to investigate the affairs of the Dispensary, as prescribed by an act to provide for the investigation of the Dispensary, approved January 24th, A.D. 1906, be, and hereby is, conferred upon the Commission provided for under this act: Provided, that for the purpose of the investigation of the affairs of the Dispensary as herein provided, each and every member of said Commission be, and hereby is, authorized and empowered, separately and individually, or collectively, to exercise the power and authority herein conferred upon the whole committee.

'Approved the 16th day of February, A.D. 1907. ' Laws 1907, p. 835.

This act was approved on the same day as the act abolishing the State Dispensary, to wit, the 16th day of February, 1907 and, within a short time thereafter, the Commission provided for was created by the appointment of the defendants, W. J. Murray, John McSween, B. F. Arthur, C. K. Henderson, and Avery Patton, as commissioners, and said defendants, having duly qualified and organized pursuant to the said act, became and do now constitute the State Dispensary Commission, and as such are charged with the execution of all the powers conferred and the performance of all the duties imposed upon said Commission by the said act. That immediately upon their qualification as commissioners, and organization as the State Dispensary Commission, the defendants entered upon the discharge of their duties, and, in accordance with the act providing for their appointment, took possession and control of the entire business and property of the State Dispensary, including the money which was at that time deposited with the State Treasurer to the credit of the board of directors of the State Dispensary, and said defendants have sold the property of said State Dispensary, except real estate, and collected many of the debts due to the said State Dispensary, and now have in their hands the proceeds arising from said sales and collections, which, together with the sum received from the State Treasurer, amount to about $800,000; that all of the money realized from the sale of the property of the said State Dispensary and the collection of debts due to it, has been from time to time, as received by the defendants constituting the State Dispensary Commission, and now is deposited to the credit of said Commission in certain banks in the state of South Carolina, subject to withdrawal only by said Commission, and no part of said money is in the Treasury of the State of South Carolina, or has ever been mingled with any funds belonging to said state; that the complainant furnished to the defendants, at their request, an itemized statement of its account against the State Dispensary, which account has been compared with the books kept by the State Dispensary and found to be in substantial agreement with said books; that complainant's account has also been audited by the company employed by the...

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