MURRAY et al. v. WILSON DISTILLING CO. et al., 164 F. 1

BOYD, District Judge (after stating the facts as above). When we have cleared away the immaterial matter and have divested this controversy of all save that which relates to the substance of it, there remains to be considered two main propositions.

The first is jurisdictional, and presents the question whether this action is against the state of South Carolina, and, therefore, forbidden by the eleventh amendment to the Constitution of the Linked States; the second, whether the Dispensary Commission, against the several members of which this suit is brought, is a court of the state of South Carolina and, therefore, incapable of having its proceedings stayed by writ of injunction granted by a court of the United States.

Section 720, Rev. St. (U. S. Comp. St. 1901, p. 581). To these two may be added another, which relates particularly to the bill and the testimony offered by the complainant in support; the appellants having set up, as a part of their answer, that the bill and the testimony are insufficient to authorize an injunction and the appointment of receivers pendente lite. The principles involved in the first proposition, however, are paramount; and following closely, as affecting the right of the complainant to maintain this action and the jurisdiction of the court to entertain it, is the second proposition.

Is this a suit against the state of South Carolina, or is the purpose •of the action and the disposition sought to be made of the subject-matter of such nature as to render the state an indispensable party? In other words, does the state hold the money which the complainant undertakes to subject to the payment of his debt in its sovereign ca~ pacity, as a part of its public fund for its use in supporting and carrying on the state government ?

Undoubtedly the eleventh amendment was intended to prevent a federal court, in suits prosecuted by citizens of another state or citizens or subjects of a foreign state, from interfering with a state in the preservation of its autonomy, in maintaining its own system of self-government, so long as such system is in harmony with the Constitution of the United States.

To this end, therefore, the funds of the state, in its treasury, or held by its officers or agents, for use in the administration of the governmental affairs of the state, are not to be affected by the process of a federal court; nor can such court entertain jurisdiction of an action which has for its purpose the invasion of the right of the state to manage and control its internal affairs, or of an action which will obstruct the state authority or impair the state instrumentalities in the discharge of legitimate functions in the maintenance of the state’s integrity.

To be more concise, the constitutional inhibition is to the effect that the courts of the United States cannot entertain jurisdiction in an action at the instance of a citizen, which seeks to recover as against the state the property belonging to the state, or the purpose of which is, and the result of which would be, to disturb the legal and orderly administration of the state’s internal governmental affairs by its duly appointed officers and agents. Does this case come within the limits prescribed ?

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 the complainant. Or has the state by

an act of the Legislature relinquished all right, if any existed, to enough of the fund to pay all the just debts contracted by the dispensary authorities? If so, can the ascertainment of the true amount of these debts and the application of the funds in the hands of the commissioners in payment affect the right of the state, or in any way interfere with the authority of the state, to manage and control its internal government within the bounds of its legitimate autonomy ?

The first proposition presented to us rests largely upon the conl-struction to be given to the act of the South Carolina Legislature, approved February 16, 1907. Sess. Laws 1907, p. 835.

This act provides that: “The Governor shall appoint a commission of well-known business men of five members, * * * to be known as the State Dispensary Commission.” “Said commission shall immediately organize by the election of a chairman and a secretary from their number.” “It shall be the duty of said commission to close out the entire business and property of the State Dispensary, except real estate, including stock in the several county dispensaries, by disposing of all goods and property connected therewith, by collecting all debts due and by paying from the proceeds thereof all just liabilities at the earliest date practicable.” By

section 47 of another act passed by the South Carolina Legislature on the 16th of February, 1907 (Sess. Laws 1907> p. 480), the dispensary as a state institution was abolished; the enactment to that end being as follows: “The State Dispensary is hereby abolished and all acts or parts of acts inconsistent with this act are hereby repealed.” Then came the other act of February 16, 1907, creating the commission and from which we have quoted above.

This act bears the title: “An act to provide for the disposition of all property connected with the State Dispensary and to wind up its affairs.” Thus we see that the state determined to go out of the business of dealing in liquors, and through its Legislature repealed the law under which it had operated, and by another act assigned all of the property, estate, and effects belonging to or connected with the dispensary to the Dispensary Commission, to be reduced to cash and from the proceeds first to pay all just liabilities. From this source the fund now in the hands of the commission arose.

The state, through its Legislature, has passed both the title and possession of the fund involved to the commission for the purposes designated in the act, the first of which is to pay all outstanding just liabilities which had been incurred by the State Dispensary in the course of its operations. The fund being in the hands of the commission charged with this duty, the state has no interest in so much thereof gs is necessary to pay the just debts. Then how can it infringe any right of the state to have the true amount of the debts due by the defunct dispensary judicially ascertained ? In Bank of United States v.

Planters’ Bank of Georgia, 9 Wheat. 904, 6 L. Ed. 244, which was a suit brought in the Circuit Court of the United States, the question of jurisdiction, in view of the eleventh amendment to the Constitution, is discussed. The action was founded on promissory notes payable to a person named therein, and were duly transferred, assigned, and delivered to the plaintiff.

A plea was entered by the defendant to the jurisdiction of the court on the ground that it was a corporation in which the state of Georgia, and certain individuals, who were citizens of the same state, were stockholders, and the point made by the defendant was that, the state of Georgia being a stockholder, the action was forbidden by the eleventh amendment.

In delivering the opinion Chief Justice Marshall uses this language: “This suit is not to be sustained because the Planters’ Bank is suable in the federal courts, but because the plaintiff has a right to sue any defendant in that court who is not withdrawn from its jurisdiction by the Constitution or by law. The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation, and not by that of the individual cor-porators. The state does not, by becoming a corporator, identify itself with the corporation.

The Planters’ Bank of Georgia is not the state of Georgia, although the state holds an interest in it. It is, wo think, a sound principle that when a government becomes a partner in any trading company it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and prerogatives, it descends to the level of those with whom it associates itself, and takes the character which belongs to its associates and to the business which is to be transacted.” In the case of Governor of Georgia v.

Madrazo, 1 Pet. 110, 7 L. Ed. 73, in the course of an opinion delivered by Chief Justice Marshall, it is said: “In United States v. Peters [3 Dall. 121, 1 L. Ed. 535] tlie court laid down tlie principle that, although the claims of a state may be ultimately affected by the decision of a cause, yet if the- state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction.” In the case of Pennoyer v. McConnaughy, reported in 140 U. S. 1, 11 Sup. Ct. 699, 35 L.

Ed. 363, very clearly drawn is the distinction, in suits brought against officers or agents of a state, as to when the jurisdiction of the Circuit Courts of the United States may be maintained and when such jurisdiction cannot. In the course of the opinion in this case the court, speaking through Mr.

Justice Eamar, says: “The first class is where the suit is brought against the officers of the state as representing the state’s action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contract.” Suits within this class are forbidden.

The court further says: “The other class is where the suit is brought against defendants who, claiming to act as officers of the state and under the color of an unconstitutional statute, committed acts of wrong and injury to the rights and property of the plaintiff .acquired under a contract with the state.

Such suit whether brought to recover money or property in the hands of such defendants unlawfully taken by them in behalf of the state, or for compensation in damages, or in a proper case where the remedy at law 'is inadequate for an injunction to prevent such wrong and injury, or for a mandamus in a like case to enforce upon, the defendant the performance of a plain, legal duty, purely ministerial, is not, within the meaning of the eleventh amendment, an action against the state.” Suits within this class are not forbidden. In the case of Swasey v. N. C. Railroad Company, 33 Fed.

Cas. 518 (No. 13,679), the state of North Carolina had issued bonds for the construction of the North Carolina Railroad. The state took stock in th’e North Carolina Railroad Company to the amount of the construction bonds so issued. The act under which the bonds were issued pledged the stock which the state held in the company for the payment of the bonds. The bondholders brought a suit in the Circuit Court of the United States for the District of North Carolina, seeking to subject the stock to the payment of overdue bonds and also accumulated interest.

It was contended that the state of North Carolina was an indispensable party to this suit on account of its interest in the result, and that, therefore, the suit was forbidden by the eleventh amendment ; but the court said: “If a state could be brought into court, it Undoubtedly should be made a party before a decree is rendered; but since the case of Osborne v. Bank, 9 Wheat. 739, 6 L.

Ed. 204, it has been the uniform practice of the courts of the United States to take jurisdiction of cases affecting the property of a state in the hands of its agents without making the state a party, when the property or the agent is within the jurisdiction. In such case the court acts through the instrumentality of the property or the agent.” Another case following in the same line is that of Chaffraix v. Board of Liquidation et al. (C.

C.) 11 Fed. 638, in which it is held that: “The Circuit Court has jurisdiction to prevent by injunction the officers oi.' a state from diverting a fund collected by taxation and set apart under a statute of that state to pay certain bonded indebtedness of said state, to the end that said fund may be preserved intact until the rights of the parties and interests of the stale, if any she has, may be determined contradictorily. Such action is not forbidden by the eleventh amendment to the Constitution of the United States, and is necessary for the proper enforcement of

section 10 of

article 1 of the same instrument.” In the case of Tindal v. Wesley, reported in 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137, the Supreme Court further emphasizes the distinction we are discussing. That was a suit by citizens of New York against citizens of South Carolina to recover the possession of certain real property in the latter state, with damages for withholding possession. One of the defendants in his answer stated that he had no personal interest in the property, but as Secretary of State of South Carolina had custody of it and was in possession only in that capacity.

The other defendant stated that he was watching, guarding, and taking care of the property under employment by his co-defendant. Both defendants disclaimed any personal interest in the property, and averred that the title and right of possession was in the state. It was held in that case, Mr.

Justice Harlan delivering the opinion of the court: “That the suit was not one against tbe state within the meaning of the eleventh amendment to the Constitution of the United States.” And it was held, further: “That a suit against individuals to recover the possession of real property is not a suit against the state simply because the defendant bolding possession happens to be an officer of the state and asserts that he is lawfully in possession on its behalf. The eleventh amendment gives no immunity to officers or agents of a state in withholding the property of citizens without authority of law,” etc.

Further in this decision the court says: “Of course, it was competent for the defendants to prove that the lots in question belonged to the state, and in that way defeat the present action. So it would have been competent for the state, if it claimed the property, to have intervened and submitted to tbe jurisdiction of the court, to have obtained a judicial determination of the claim asserted for it by the defendants. But it did not intervene. It refused to do so.” The court goes still further, and refers to the case of South Carolina v. Wesley, 155 U. S. 542, 15 Sup. Ct. 230, 39 L.

Ed. 254, stating: “It appears that the state, by its Attorney General, suggested to the court that these lands were hold, occupied, and possessed by the state through and by its officer and agent, and were used for public purpose; and without submitting the rights of the state to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, it moved that the proceedings be dismissed.

That motion was overruled, and the writ of error sued out by the state was dismissed; the Chief Justice observing: ‘The state does not complain that it was refused leave to intervene, but that the Circuit Court, without the intervention of the state, refused merely upon suggestion to dismiss tlie complaint against the defendants who were sued as individuals. The state was not a party to the record in the Circuit Court, and did not become a party by intervention pro inter esse suo or otherwise, but expressly refused to submit its rights to the jurisdiction of the court.’ ” U. S. v. Lee, 106 U. S. 196, 1 Sup.

Ct. 240, 27 L. Ed. 171 and Georgia v. Jesup, 106 U. S. 458, 1 Sup. Ct. 363, 27 L. Ed. 316, are also cited. It will be found that the doctrine declared in the several cases, as above recited, is reiterated in the case of Gunter, Attorney General, etc., v. Atlantic Coast Line, 200 U. S. 273, 26. Sup. Ct. 252, 50 L. Ed. 477. But we deem it unnecessary to cite further authorities upon the position we are presenting, for upon examination of the cases we have mentioned it will be found that other cases bearing upon the point ,are referred to.

We will, however, call attention to the most recent case involving the principle, and that is in the matter of Edward T. Young, petitioner on petition for writ of habeas corpus and certiorari, decided during the last term of the Supreme Court. 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932.

This case arose in the state of Minnesota and was a suit in equity brought by a certain railway company to restrain the Attorney General and other officers of the state from enforcing a law which had been passed by the Minnesota Regislature imposing penalties upon railroad corporations and officers of such corporations for violating freight rates provided under the state law. The Attorney General of the state of Minnesota, who is the petitioner in the case, relied upon the position that the proceeding by the railroad was a suit against the state and forbidden by the eleventh amendment. The Supreme Court, Mr.

Justice Peckham delivering the opinion, held that, as the act of the Regis-lature in question was unconstitutional, the Attorney General and other officers of the state who undertook to enforce it to the injury of the railroad were not protected by the eleventh amendment; that the suit was not one against the state, but against the Attorney General and other officers named, to restrain them from enforcing an unconstitutional act of the Regislature. In what capacity, therefore, are the members of the commission acting?

Are they officers of the state of South Carolina, discharging a duty in behalf of the state, or are they agents appointed under the act of the Regislature of the State, empowered to take possession of a certain fund and directed to administer such fund in a particular manner?

In other words, does the act creating the commission and authorizing the appointment of the several members who compose it confer upon them any powers in connection with the administration of the state’s affairs, or are they by the terms of the act holders of a special fund intrusted to them for the prime purpose of paying off and discharging the State Dispensary debts?

We are constrained to hold that the fund in their hands is, by virtue of the provisions of the act, held in trust for the payment of the debts mentioned, and that the creditors of the State Dispensary have a property in the fund in the hands of the commission, to the extent that the debts are shown to be just, and that a judicial determination of the true amount of such debts can in no way affect the rights or interests of the state; the only interest of the state in the fund being, as declared by the act, the residue after the just liabilities of the State Dispensary arc paid, and this interest is subordinate to the payment of the said liabilities.

It is elementary that particular formality is not required in the creation of a trust. If any agreement or contract in -writing is executed by one having the power to dispose of property, whereby it is directed that particular property or fund shall be held or dealt with for a special purpose for the benefit of another, in such case equity raises a trust in favor of the beneficiary.

The right to create a trust for specific purposes is not confined to individuals or private parties; but we find in Perry on Trusts, § 30: ‘•That a state, by its legislation, or by its public officers, duly authorized, can create a trust, convey property, and appoint trustees.” The provisions of the act creating the Dispensary Commission are strikingly similar in substance to the usual form of conveyances of property in trust for the benefit of creditors. There are the necessary three parties — the trustor, the trustees, and the cestui que trusts.

The state, acting through the Legislature, passes the title and possession of certain property to the five appellants, who are constituted a Dispensary Commission. The direction is that the appellants take this property, sell it, collect debts, and, when the proceeds are in hand, pay off the just liabilities of the State Dispensary. The act ihen provides for the payment of certain expenses incident to the discharge of the duties devolving upon the commission, and after that the residue to he paid to the state.

We undertake to say that there is scarcely to be found recorded anywhere an assignment by a debtor for the benefit of creditors more intelligently constructed or more readily understood. Having, therefore, determined the relation of the appellants to the fund in controversy, we answer the question propounded in the outset that this is not a suit against the state and that complainant is not forbidden to maintain his action by the eleventh amendment to the Constitution of the United States.

The appellants are in possession of the fund which complainant is seeking to recover on the ground that it has been set apart and placed in the hands of the appellants to pay a debt which is justly due him. The state of South Carolina does not intervene to assert any right to this fund or to have any interest which the state may have in it determined; but the appellants themselves raise the question of the jurisdiction of the court, basing it upon the allegation that the property in their hands belongs to the state.

We think, in view of the facts in this case, upon the authorities heretofore cited, and especially under the case of Tindal v. Wesley, supra, the appellants are not entitled to avail themselves of that defense. This suit is not against the state, nor is the state an indispensable party. Treating the fund in the hands of the appellants as a trust fund, and the duties of the trustees in regard thereto being clearly defined, the trustor is not even a necessary party to the suit brought to compel the trustees to discharge their said duties.

However, if the state elects, it may intervene and have a judicial determination as to any right it may claim. To conclude, therefore, as to the first proposition, it is our opinion that the Circuit Court has jurisdiction of this case and that the same is cognizable in a court of equity. It is the peculiar province of courts of equity' to administer trusts. Indeed, it is a familiar saying that “equity loves a trust,” and that it will not permit a trust to fail for the want of a trustee.

In a court of equity, which is a forum of conscience, the shortcomings of the law can be supplied, and every interest and right can be protected and administered, so as to insure exact justice. The proceedings in these courts are of such character as to be most conducive to the ascertainment of truth, and, besides this, a chancellor may, if he deems it expedient, be aided in determining a difficult issue of fact by calling to his assistance a jury on the law side of the docket.

It is insisted that the claims involved in this controversy, if due, are debts of the state, and appellants say that they represent the state, which is the real party in interest; yet in this situation they contend that, in case of a dispute as to the validity of any of the claims, it should be left to them to decide.

In other words, their position appears to be that the agents and representatives of the debtor should constitute a tribunal, absolute in Its character, to arbitrarily pass upon what, if anything, is due an alleged creditor, and if a claim be adjudged invalid to put an end to it, without further opportunity for redress on the part of the creditor. To uphold such contention would, in our opinion, in the event that a just debt due a creditor was thus rejected, deprive such creditor of his property without due process of law.

This case presents itself in another aspect, which, to say the least, is somewhat novel, and which, if other attending conditions were different, might affect the right., of the state to avail itself of the provisions of the eleventh amendment. We feel justified in assuming that in the conception and adoption of the eleventh amendment it never entered the mind that a sovereign state would engage in business as a liquor dealer and become a trader by buying and selling an

article of common traffic in competition with the citizens of the country. It may be questioned, therefore, whether the state of South Carolina, in becoming such dealer, was exercising a governmental prerogative or performing a function necessarily or properly incident to its autonomy as a state. It is not our purpose to venture an opinion in respect to this question, for, in view of. what we have said before, it is not necessary to the disposition of the case, and then we have no authority in point to guide us.

We will, however, recall, as having some bearing on the question, the following quotation from Bank of United States v. Planters’ Bank of Georgia, supra: “It is, we think, a sound principle that, when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen.” And we may also refer to South Carolina v. United States, 199 U. S. 437, 26 Sup. Ct. 110, 50 L. Ed. 261.

In this case the Supreme Court passed upon the right of the United States government to require the South Carolina dispensaries to pay the privilege tax as liquor dealers. The contention was there, as here, that the dispensary was a state institution, and, therefore, not subject to tax by the federal government. Mr.

Justice Brewer, after citing a number of cases, in the course of the opinion which he delivered for the court, uses this language: '‘These decisions, while not controlling the question before us, indicate that the thought has been that the exemption of state agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character and does not extend to those which are used by the state in the carrying on of an ordinary private business.” * These declarations by the highest court of the nation will at once suggest the inquiry, if the dispensary was not an instrumentality of the state’s government in one respect, can it be such in any other?

Tlie second proposition is whether the State Dispensary Commission, provided for in the act of February 16, 1907, is a court of the state of South Carolina, and, therefore, cannot be enjoined because of the provisions of

section 720 of the Revised Statutes of the United States. We scarcely deem it necessary to enter into an elaborate discussion of this question, for what is said by us before practically 'disposes of it. However, a perusal of the act creating the commission will at once repel the argument that it is, in any sense, a court.

The Constitution of South Carolina provides for courts as follows: First, a court for the trial of impeachments; second, a Supreme Court; third, a court of common pleas and general sessions; fourth, a probate court; fifth, courts of magistrates; and, sixth, such other inferior courts as the General Assembly may, from time to time, in their wisdom establish.

There is nothing in the act creating the commission which suggests that the Legislature contemplated that it was to he a court. 1't is certainly not one of the courts provided for by the Constitution, as above set forth; nor does the act declare that it is a court of an inferior character. No method of procedure is provided, such as is usual in a court. The commission has no power to enter a judgment or enforce any mandate by process.

It is true that by virtue of the act the commissioners are authorized to investigate transactions connected with the management and control of the State Dispensary anterior to the time that it was abolished, and to ascertain if there had been fraudulent practices on the part of the dispensary agencies in connection with the purchases of liquors, and report their actings and doings to the Governor; but they were not empowered by the act to determine any issue of fact, enter any judgment, or conclude any party that might be investigated as to any right or interest involved.

The only element of discretion given to the commissioners which we can find at all in the act is in

section 3, where, after providing that the commissioners shall sell the property and collect the debts, and pay from the proceeds thereof all just liabilities, etc., there is the following: “Said commission shall be at liberty to make such disposition upon such terms, times and conditions as their judgment may dictate.” This can be construed to refer only to sales of the property. In every other respect the duties which devolve upon the commissioners are purely ministerial. It is our opinion, therefore, that the contention that the Dispensary Commission is a court is not well founded.

The proposition that complainant’s bill and the testimony in support of it are insufficiént to authorize a decree for injunction and receivers pedente lite can be readily disposed of. The bill alleges a just debt still existing and unpaid for liquors sold to the dispensary authorities by complainant.

It is further alleged that said debt has been audited by the agency employed by the appellants, and has been found to corrq^pond with the entries upon the books kept by the State Dispensary board, and, further, that the appellants refuse to pay complainant’s debt from the funds in their hands set apart for that purpose. If these allegations are true, the complainant has the right to invoke the aid of the court.

The appellants, in their return to the order to show cause, in paragraph 11, substantially deny the validity of the complainant’s debt in the following language: “The commission is advised by the Attorney General and his associates that the claim of the plaintiff for goods sold by it to the State Dispensary is unjust and invalid, which they have evidence to establish.” This is a practical admission that the appellants did not intend to pay complainant’s debt from the fund in their hands.

His only recourse, therefore, was by an appeal to a court of competent jurisdiction to determine as to whether or not his debt was just, and, if so, to require the appellants to pay it from the fund in their hands for that declared purpose, and also to have the fund preserved, to that end. So we dismiss that part of the case without further consideration.

Since the commencement of this action and the decision of the Circuit Court of the United States for the District of South Carolina that it had jurisdiction, and the issuing of an injunction and appointment of receivers as prayed for in complainant’s bill, the Supreme Court of South'Carolina, in a case brought before it, has rendered a decision construing the South Carolina statute involved in this controversy, and holds that a suit against the Dispensary Commission (the appellants in this case) is a suit against the state of South Carolina, and, therefore, forbidden by the eleventh amendment.

The South Carolina Supreme Court is entitled to, and has, our most profound respect; but under the circumstances we do not feel at liberty to adopt the construction given by that tribunal to the South Carolina statute after the rights of complainant have accrued, and after he has sought his remedy in a Circuit Court of the United States, which has given a construction to the statute contrary to the decision subsequently rendered by the Supreme Court of the state. The law governing us is well settled in the case of Burgess v. Seligman, 107 U. S. 33, 2 Sup. Ct. 10, 27 L.

Ed. 359, in which it is held: “We do not consider ourselves bound to follow the decision of the state court in this cas?. When the transactions in controversy occurred, and when the case was under the consideration of the Circuit Court, no construction of the statute had been given by the state tribunals contrary to that given by the Circuit Court. The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the State courts, and are bound to exorcise their own judgment as to the meaning and effect of those laws.

The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient, but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established, which become rules of property and action in the state and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law ,of real estate and the construction of state Constitutions and statutes.

Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But, where the law has not been thus settled, it is the right and duty of the federal eourts to exercise their own judgment, as they always do in reference to the doctrines of commercial law and general jurisprudence.

So, when contracts and transactions have been entered into and rights have accrued thereon under a particular state of the decisions, or when there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own

interpretation of the law applicable to the case, although a different

interpretation may be adopted by the state courts after such rights have accrued.” And in the case of Pease v. Peck, 18 How. 595, 15 L. Ed. 518, we find the following principle laid down: “When the decisions of the state court are not consistent we do not feel bound to follow the last, if it is contrary to our own convictions; and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines, subversive of former safe precedent.

Oases may exist, also, when a cause is got up in a state court for the very purpose of anticipating our decision of a question known to be pending in this court. Nor do we feel bound in any case in which a point is first raised in the courts of the United States, and has been decided in a Circuit Court, to reverse that decision contrary to our own convictions, in order to conform to a state decision made in the meantime.

Such decisions have not the character of established precedent declarative of the settled law of a state.” It is our conclusion, therefore, that the decree of the Circuit Court for the District of South Carolina, appealed from, should be affirmed. The case will be remanded, to be further proceeded with in accordance with the views herein expressed. Affirmed.