Edward Douglass White

“ In form the winding-up statute is but an ordinary act of legislation, providing, in the interest of the state, for an examination and liquidation of the claims against the dispensary, and their payment out of the state assets when liquidated, so as to secure the state against unjust claims and preserve its interest in the fund. The act does not, in express terms, make any change, in the theretofore existing relation of debtor and creditor between the state and the vendors of liquor under the state dispensary act. ”

“ It cannot be and is not denied that the construction of the winding-up act, upon which the contention rests, is contrary to that entertained both by the general assembly of South Carolina and by the highest court of the state, but it is urged that the statutes of 1908, in respect to the dispensary fund, and the opinion of the supreme court, were, the former enacted and the latter announced, after this litigation was commenced. But if we assume that the legislation and decision referred to are not controlling, yet they are persuasive. ”

“ The conception that an irrevocable trust was intended to be created is negatived by the requirement in the 1st section, for the giving by each member of the commission of a bond for the sum of $10,000, conditioned for the faithful performance of the duties imposed. ”

“ By the second act the commission was directed to pay $15,000 into the state treasury, to be used for the expenses of criminal prosecutions for violations of the laws relating to 'the late institution called the state dispensary.' The commissioners refused to pay out of the dispensary funds in their hands the $15,000 directed by the lastmentioned statute, on the ground that they were under an injunction from the circuit court of the United States. Thereupon, the attorney general of the state began proceedings by mandamus in the supreme court of South Carolina to compel compliance with the act. ”

“ The bills also proceeded upon the theory that the act of 1907 had placed the assets of the dispensary in the hands of the commission as a trust fund for the benefit of all creditors having valid claims against the fund, which they were entitled to enforce by judicial action against the commission, without the presence of the state as a necessary party. ”

“ And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit ”