Amerker v. Taylor

• Decision Date: 04 August 1908
• Citation: 62 S.E. 7,81 S.C. 163
• Parties: AMERKER et al. v. TAYLOR et al.
• Court: South Carolina Supreme Court

62 S.E. 7

81 S.C. 163

AMERKER et al. v. TAYLOR et al.

Supreme Court of South Carolina

August 4, 1908

Petition by T. A. Amerker and others against R. E. Taylor and others for an injunction restraining the county dispensary board of a county from closing dispensaries. Injunction awarded.

Bellinger & Welch, for petitioners.

L. K Sturkey, Wolfe & Berry, and Buyck & Mann, for respondents.

JONES J.

The petitioners, as citizens and taxpayers of Calhoun county have applied to this court in its original jurisdiction for an injunction restraining and enjoining the county dispensary board of Orangeburg county, and the dispensers concerned from closing either of the dispensaries located at St Matthews and Ft. Motte. By Act Feb. 14, 1908 (25 Stat. at Large, p. 1279), Calhoun county was created out of portions of Orangeburg and Lexington counties. Dispensaries existed in both the original counties at the time of the formation of Calhoun county, and have not been voted out since that time.

While no dispensary was located in that portion of Lexington which became a part of Calhoun, two dispensaries existed in that portion of Orangeburg which went into the new county, one of which being established at St. Matthews and the other at Ft. Motte. These dispensaries existed at the time of the approval of Act Feb. 16, 1907 (25 Stat. at Large, p. 464), commonly known as the "Carey-Cothran Act," and section 34 of said act provided: "In any county in this state in which the dispensary has not been voted out by and under existing law and until an election is held in such county as provided by this act, any dispensary now established therein shall be continued as a dispensary in said county under this act," etc. Section 7 of the act creating Calhoun county provides: "Until the officers to be elected at the special election hereinbefore provided shall have been elected and all officers required to be appointed shall have been appointed and duly qualified, all the county officers in Orangeburg and Lexington counties respectively shall continue to perform and exercise the duties of their respective offices in territory taken from each of the old counties," etc. Section 20 of the said act declared: "All laws now of force in the other counties of this state are hereby made of force in Calhoun county when not inconsistent with the provisions hereof." The members of county dispensary boards are declared to be county officers by section 6 of the act of 1907. After the formation of Calhoun county these dispensaries at St. Matthews and Ft. Motte were managed by the county dispensary board of Orangeburg until some time before the commencement of this proceeding, when that board ordered the permanent closing of these dispensaries. To prevent their closing is the object of this proceeding. While conceding the power of the Orangeburg County dispensary board to temporarily close the dispensaries, as the public good may demand, under the authority conferred by section 17 of the act of 1907, the petitioners deny the right of the board to permanently close these dispensaries, contending that such can only be done, under section 35 of said act, after a vote of the people of the county of Calhoun disestablishing or voting out said dispensaries. There has been no election in Calhoun county since its formation voting for the establishment of dispensaries therein, and no dispensary board has been appointed for Calhoun county.

The question presented by the petition and return upon undisputed facts is whether it is the duty of the dispensary board of Orangeburg county to maintain these dispensaries in Calhoun county until the appointment of a dispensary board for Calhoun county or until said dispensaries have been voted out of Calhoun county in the manner provided for the disestablishment...