48 S.C. 95 | S.C. | 1897
Lead Opinion
The opinion of the Court was delivered by
The State Bank was incorporated as a banking institution prior to the late war. In order to prevent confusion, it may be well to state at the outset, that the State Bank was a private banking corporation, and the Bank of the State was a public corporation established for the benefit of the State. Upon the seige of the city of Charleston, in 1863, the assets of the State Bank were removed to the town of Camden, where, in 1865, they were taken from the agent of the bank, by soldiers in the invading army of General Sherman, then passing through the
Edward Sebring, president of the bank, died in 1880, leaving Charles Kerrison as sole surviving director and trustee. The original plaintiff, George Garvin, abandoned the conduct of the action. On the — day of June, 1894, a supplemental complaint was filed by Robert Mure and W. I. Middleton, surviving copartners of Robert Mure & Co., and Edward McCrady and Alfred Chisholm, executors of William C. Bee, deceased, against Charles Kerrison, sole surviving director and trustee of the State Bank, and W. T. C. Bates, state treasurer. Both defendants answer the supplemental complaint. On the 29th of June, 1894, his Honor, Judge Witherspoon, made an order by which the case was referred to Wm. Gibbes Whaley, one of the masters for Charleston County, to inquire and report which, if any, of the bonds in question had been funded, and which, if any, were still outstanding, unpaid and unfunded, with
On the 13th of October, 1894, his Honor, Judge Ernest Gary, made an order, a part of which is as follows: “It is further ordered, that the said Samuel Lord, receiver, be and is hereby authorized and instructed to memorialize the General Assembly, at its next session, to issue to the said Samuel Lord, receiver of the president, directors, and company of the State Bank, the bonds of the State, which, by order of the Court, have been declared to be the property of the State Bank, and to be allowed to refund the same under the acts of the State in such case made and provided.”
The following facts are stated in the return of W. T. C. Bates, state treasurer: That at the regular session of the General Asseembly of the State of South Carolina, in November, A. D. 1894, the relator, as receiver of the president, directors, and company of the State Bank, in obedience to the order of Judge Gary in the cause set forth in the petition, presented to the General Assembly a memorial praying for the passage of a joint resolution authorizing
That at the said session of the General Assembly the following joint resolution was introduced in the Senate and in. the House, to wit: “A joint resolution (Senate) authorizing the state'treasurer to issue to- Samuel Lord, as receiver of the president and directors of the State Bank, or his duly appointed successor, consolidation bonds or stock equal in amount to fifty per centum of the par value of certain six per cent. State bonds, and interest thereon (which bonds were taken and lost or destroyed by Federal soldiers during the late civil war, and to which the said receiver, by decrees of the Courts, has been adjudged entitled), and to permit the refunding of the same under the acts for the redemption of the State debt.”
That the said joint resolution passed the Senate and was sent to the House, and, after consideration in that body, was continued until the next session; that the following resolution was introduced in the House at the session of 1894, after the continuance of the joint resolution aforesaid: “Whereas, a Senate joint resolution (introduced in the General Assembly of 1894, upon a memorial of Samuel Lord, as receiver of the State Bank, presented by the authority and direction of the Hon. Ernest Gary, Circuit Judge, and praying the passage of a joint resolution to authorize the state treasurer to consolidate and refund to said receiver certain lost bonds of the State, decreed by the courts of the State to belong to the said State Bank), has been continued
The petitioner’s attorneys in their argument present three subjects for the consideration of this Court, as follows: I. As to the character of the proceeding by mandamus and its effect. II. As to the nature and effect of the decree of the 21st of August, 1894, upon which the proceeding is based. III. As to the character of the funding act under which the petitioner asks that the treasurer shall be required to fund the bonds in question. They will now be considered in their regular order.
Act of December 20th, 1878, “To extend the time for funding the unquestionable debt of this State,” provides: Section 1. “That the state treasurer is hereby authorized and required to receive from the holders willing to surrender the same, all outstanding bonds and certificates of stock of the State, issued prior to the 1st day of January, 1866, and coupons on said bonds and interest orders upon the certificates of stock which have matured or may mature on the 1st July, 1879, and shall thereupon issue to said holder other coupon bonds and certificates of stock at the rate of fifty per centum of the face value thereof, in all respects, as is provided for in the act of assembly, approved 22d December, 1873, entitled ‘An act to reduce the volume of the public debt and provide payment of the same,’ with respect to bonds and certificates of stock, and such coupons of bonds
Act of 24th December, 1880, “To extend the time for funding the unquestionable debt of the State,” provides: Section 1. “That the state treasurer is hereby authorized and required to receive from the holders thereof who may be willing to surrender the same, all outstanding bonds and certificates of stock of the State, issued prior to the 1st day of January, 1866, together with the coupons of said bonds and interest orders upon said certificates of stock which have already matured, or which may mature on or before the 1st day of January, 1880, and in lieu thereof shall thereupon issue to said holders other coupon bonds or certificates of stock at the rate of fifty per centum of the face value of the material so surrendered, in all respects as is provided for in the act of the General Assembly, approved 22d December, 1873, entitled ‘An act to reduce the volume of the public debt, and provide for the payment of the same,’ with regard to the bonds and certificates of stock whose issue is provided for in said act.” Section 2. “That the holders of such bonds and stocks and interest as may be reported not affected by said decision, and the holders of valid portion or portions of such bonds and stocks and interest as may be reported in some degree to be affected by the said decision, shall be entitled to surrender the same, together with all coupons' and interest orders belonging thereto which have already matured or which ma3r mature on or before the 1st day of January, 1880, to the state treasurer, for cancellation, who shall thereupon cancel the same. That the state treasurer is hereby authorized and required, in lieu of the bonds, stock and interest so surrendered, to issue for so much thereof as are declared in said report to be valid in -whole and for the valid portion of so much thereof as in said report are declared valid only in part, other coupon bonds and certificates of stock, at the rate of fifty per
At the last session of the legislature (25th February, 1896), an act was passed, providing that after its passage no coupon bond of the State payable to bearer, nor any coupon thereof, should be consolidated, converted, funded or paid by the state treasurer after expiration of twenty years from the date of maturity of such bond. (Vol. 22 of Stat., page 183.) It only needs a glance at the acts aforesaid to see that the inability to produce the bonds themselves will prevent a compliance with the requirements of the acts according to the letter thereof. Does this case, then, fall within the spirit of the said legislation? Section 14 of the act of 1873, hereinbefore set out, shows that the legislative intention was to insist upon a strict compliance with the requirements of said act. The object was to prevent fraud, as to which it was not entirely successful, even with its strong safeguards, which cannot be enforced when the bonds cannot be surrendered for' cancellation. The requirements of the act cannot be complied with except by an actual surrender of the bonds themselves and the cancellation thereof by the state treasurer. The duty imposed upon the state treasurer is not plainly defined peremptory and ministerial, and, therefore, mandamus is not the proper remedy. The office of the writ of mandamus is thus well expressed by Mr. Justice White, in the case of International Cont. Co. v. Lamont, 155 U. S., 303: “It is elementary law that mandamus will only lie to enforce a ministerial duty, as contra-distinguished from a duty which is only discretionary. * * * Moreover, the obligation must be both peremptory and plainly defined. The law must not only authorize the act (Commonwealth v. Boutwell, 13 Wall, 526), but it must require the act to be done. A mandamus will not lie against the secretary of the treasury unless the .laws require him to
The writer of this opinion regrets that the limited time within which opinions are required by law to be filed necessitates so brief and concise a statement of the reasons leading to the conclusion at which we have arrived.
It is the judgment of this Court, that the petition should be dismissed.
Concurrence Opinion
Contrary 'to my first impressions of this case, I am unable, after very careful and unusually protracted investigation, to reach the conclusion that the relator is entitled to the remedy which he invokes. While fully convinced of the justice of the relator’s claim to the bonds, which he is seeking to have funded under the several funding acts referred to in the opinion of Mr. Justice Gary, I am unable to perceive that there is any such plain, ministerial duty imposed upon the treasurer of the State by such funding acts, the performance of which can be enforced by the writ of mandamus. It is very obvious that neither the treasurer nor any other public officer has any authority, except such as has been conferred upon him, either expressly or by necessary implication, by some act of the legislature; and it is equally obvious that when such authority has been conferred to be exercised in a prescribed manner, it can only be exercised lawfully in the manner prescribed. Hence, when the state treasurer was authorized and required by the act of 1873, and the various other acts amending and extending the same, referred to in the leading opinion, such authority could only be exercised and such duty could only be performed in the manner prescribed in those acts. Without repeating here the various provisions of those acts prescribing the manner in which the bonds therein referred to must .be funded, it is sufficient to say
The fact that the relator has obtained the judgment of a court of competent jurisdiction in a case to which the state treasurer was a party, that the bonds in question are the property of a corporation which the receiver represents, and that he, as such receiver, “is the only person entitled to fund and collect the same from the treasurer of the State,” cannot affect the question which the Court is called upon to decide. Such judgment may be of the strongest persuasive force in inducing the legislature to make provision for the funding of these bonds by the relator, as it has done in other cases where the funding of lost or destroyed bonds has been authorized; but until such provision has been made, I do not see how it can be said that there is any such plain, ministerial duty imposed upon the treasurer to fund the bonds here in question, the performance of which can be enforced by mandamus.
I am compelled, therefore, to concur in the conclusion that the petition be dismissed.
Concurrence Opinion
I think the tendency of modern authority does not regard a writ of mandamus as issued at the instance or by the consent of any prerogative power through the attorney general, except in matters directly concerning the State, and even here not on any ground peculiarly applicable to a State alone, but upon the ground that, as he is the agent and attorney for South Carolina, it is his duty to see that an unauthorized person does not make his client and principal a party plaintiff to an action or proceeding that cannot possibly be of any benefit (but may be of great injury) to her. The tendency is to consider the proceeding by mandamus as a suit. The State cannot be heard without her counsel, but if unauthorized persons are allowed to use the name of the State as plaintiff, this wise provision of the fundamental law will be neutralized. Once in Court, matters involving the whole
Upon the merits of the case, I concur in the opinion of Mr. Associate Justice Gary.
Dissenting Opinion
The relator in this case is the receiver of the State Bank, appointed at the instance of the State, through the attorney general, and is in duty bound to collect and administer the assets of the bank. The thirty-eight bonds in question are a part of the assets of the bank. These bonds were stolen from the custodian of the bank’s
But it is said that in this case the duty of the state treasurer is to be ascertained wholly from the funding acts men
I think, therefore, that the relator is entitled to the writ of mandamus.
Concurrence Opinion
I am unable to concur in the opinion of the majority of the Court. My dissent is based mainly on the ground that his Honor, Judge Witherspoon, in a case in which the respondent was a party, and from which there was no appeal, has, by his decree, adjudged that the thirty-eight bonds in question “are the property of the president, directors, and company of the State Bank, and that the receiver of the said corporation is the only person entitled to fund and collect the same from the treasurer of the State.” If the petitioner could produce the bonds, then there could be no question as to his right to have the.same.funded, under the provisions of the funding act; and, hence, in such case, there could be no question as to his right to the remedy by mandamus to compel the respondent to fund the bonds, as such duty under the act is plain and ministerial, and involves the exercise of no discretion on his part. But the bonds, as it is alleged, were forcibly taken from the cashier of the State Bank, in the j'ear 1865, and nothing has been heard of them from that time until this, though due advertisement has been made under orders of the Court for the production of the same by the holders thereof. So, the only question is, is it necessary to produce the bonds themselves as a condition precedent to requiring the treasurer to fund? Unquestionably, this would be necessary in the absence of a proper adjudication as to the loss and ownership of the bonds. But this matter has been settled by said decree. It was thereby determined, not only that the bonds are the
The bonds are only the evidence of a debt of the State, which is confessed^ outstanding and not disputed, and the ownership of the debt and the right to fund the same having been judicially established, the production of the decree would be a proper substitute for the production of the bonds. The right is clear, and there is no remedy save by mandamus. “And where a man has jus ad rem, it would be absurd, ridiculous, and a shame to the law, if he could have no remedy, and the only remedy he can have is by mandamus.” Rex v. Montacute, 1st I. W. Blackstone, 62-64. As Lord Mansfield said in Rex v. Barker, 3 Burr., 1265: “A mandamus is a prerogative writ, to the aid of which the subject is entitled upon a proper case previously shown to the satisfaction of the Court. It was introduced' to prevent disorder from a failure of justice. Therefore, it ought to be used on all occasions where the law has established no specific remedy, and where, in justice and. good government, there ought to be one. The value of the matter, or the degree of its importance to the public policy, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied.” In Church v. Chelsea, 7 Cush., 239, the Supreme Court of Mass, says: “The application is to the discretion of the Court, but this is not arbitrary; it is a judicial discretion, and when there is a right, and the
The objection that the bonds cannot be surrendered is not tenable. The term surrender, as used in the funding act, does not necessarily mean that the bonds should be delivered up, but that the right evidenced by them should be surrendered. As the. Court said, in reference to “interest orders,” in Ex parte Barnwell, 8 S. C., 269: “In point of fact, no such orders were attached to these certificates, and when the legislature, through the act, speaks of ‘the surrender’ of such certificates, it meant nothing more than that the holder, on receiving his coupon bonds, or certificates ‘of stock’ to the amount of fifty per centum, for his interest due, should deliver to the treasurer an order to fund it, as required by the act, so that it might be shown that the interest which has accrued on his old certificate has been paid and satisfied by the delivery of the new ones, in conformity with the prescribed directions.” So, in this case, as it appears to me, an order by the petitioner upon the treasurer to fund the bonds, to which he is entitled under a decree of the Court, would be such a surrender of the right evidenced by the bonds as is contemplated, at least, by the spirit of the act. To hold him to a strict and literal compliance of the act, by requiring him to do an impossible thing, to produce the bonds, would be using a technical rule to destroy a remedy, after the right has been established. Qui haeret in Litera haeret in Cortice.
I deem it unnecessary to prolong this opinion, as I fully concur in the dissenting opinion of his Honor, Associate Justice Jones.
Concurrence Opinion
Upon the conclusion of the argument, and before mature consideration of the issue herein, my impressions were in favor of the relator. Since then I have studied the history of this case, terminating in the decree of Judge Witherspoon, and the funding acts of this State. As the result of that study, I have concluded that it is not the plain ministerial duty of the state treasurer, either under said decree or the funding law, or both, to fund the bonds in question. I do not think that the decree of Judge Witherspoon is as comprehensive or as far-reaching in effect as the relator claims it is.
A careful reading of the various funding acts, extending over a number of years, has caused me to conclude that it is the settled purpose and policy of the legislature to retain the control of all matters pertaining to the funding of bonds. It is not necessary for me to extend this opinion, as I concur in the conclusions reached by Mr. Justice' Gary, and the reasons stated in the concurring opinion of the Chief Justice.
I concur, therefore, in the conclusion that the petition be dismissed.