39 S.C. 298 | S.C. | 1893
The opinion of the court was delivered by
This is an application, addressed to this court in the exercise of its original jurisdiction, instituted by the plaintiff, as a citizen and taxpayer of this State, to enjoin and restrain the defendants from issuing the bonds of this State, to the amount of five million two hundred and fifty thousand dollars, to the Baltimore Trust and Guarantee Company, under a contract between said company and the defendants, heretofore adjudged to be valid by this court, in the case of Evans v. Tillman, 38 S. C., 238, upon the ground that the act of the General Assembly purporting to authorize such issue is unconstitutional and void. The defendants have demurred to the petition presented by the plaintiff, and thereby admit all the material allegations of fact made by the plaintiff. So that the only question presented for our determination is purely one of law, viz: whether the act above referred to is unconstitutional.
It is very clear that if the act in question can properly be regarded as authorizing the issue of bonds for the purpose of defraying extraordinary expenditures, it would be unconstitutional, because not passed in the mode prescribed by the above quoted section of the Constitution. The material inquiry, therefore, is, whether the act in question is to be tested by the provisions of section 7 of article IX. of the Constitution, or by the provisions of section 10 of the same article, which reads as follows: “No scrip, certificate, or other evidence of State indebtedness shall be issued, except for the redemption of stock, bonds, or other evidences of indebtedness previously issued, or for such debts as are expressly authorized in this Constitution.” For while the language used in section 10 is negative in form, yet it is clearly a negative pregnant, and necessarily implies that scrip, &c., may be issued in the cases excepted from the prohibition, to wit: “for the redemption of
It seems to us very clear that these two sections of the Constitution (the seventh and tenth) relate to two entirely distinct and different matters. The former authorizes the contracting of a public debt for the purpose of obtaining money to defray extraordinary expenditures, while the latter authorizes the issue of scrip or other evidences of indebtedness for the purpose of redeeming bonds or stocks previously issued; and we think it equally clear that the bonds authorized to be issued by the act of 22d December, 1892, are intended to be, and can only be, issued for the purpose of redeeming bonds and stocks previously issued, and not for the purpose of obtaining money to defray extraordinary expenditures. The terms “extraordinary expenditures’ ’ necessarily imply new obligations or debts which had not been previously incurred, over and above the ordinary current expenses of the government, and hence it was wisely provided in the seventh section of the Constitution that every law authorizing the contracting of a new debt should distinctly state the object for which it was to be contracted, and that it should not take effect unless it was passed by a two-thirds vote, to be recorded by yeas and nays on the journal, in order that the taxpayers might be able to understand distinctly what was the purpose of contracting such debt, and who of their representatives voted for the same; and, as a further protection to the taxpayers, it was subsequently provided by the amendment of 1873, incorporated as article XVI. of the Constitution (the terms of which will be hereinafter more particularly considered), as a still further safeguard, that no new debt should be contracted without 'a vote of the people. But the scrip or other evidences of indebtedness authorized to be issued by section 10 of article IX. of the Constitution, being for the purpose of redeeming bonds or other evidences of indebtedness previously issued, and not for the purpose of creating any new debt, there was no necessity for providing any such safeguards as are found in section 7 of article IX. and in article XVI. of the Constitution, because the bonds issued under the authority of section 10 would be practically
It is further urged by the plaintiff that the act of 1892, authorizing the issue of the bonds now in question, violates art. XVI. of the Constitution, above referred to. That article reads as follows: “To the end that the public debt of South Carolina may not hereafter be increased, without the due consideration and free consent of the people of the State, the General Assembly is hereby forbidden to create any further debt or obligation, either by the loan of the credit of the State, by guaranty, endorsement or otherwise, except for the ordinary and current business of the State, without first submitting the question as to the creation of any such new debt, guaranty, endorsement or loan of its credit to the people of this State at a general State election; and unless two-thirds of the qualified voters of the State, voting on the question, shall be in favor of a further debt, guaranty, endorsement or loan of its credit, none such shall be created or made.”
It is very manifest that the object of this constitutional provision was to prevent the General Assembly from creating any new debt of the State, “except for the ordinary and current business of the State,” unless the mode therein prescribed shall be observed. So that the material inquiry now is whether the bonds to be issued under the authority of the act of 1892, will fix upon the State any new or additional debt. While it may be true, in one sense, that where a debtor borrows money for the purpose of paying a debt previously contracted, the bond which he gives to secure the payment of the money thus borrowed is the evidence of a new debt, from which it is argued that if the proper State authorities shall issue the bonds authorized by the act of 1892, and sell the same for the purpose of obtaining the money necessary to redeem the brown consols, a new debt will thereby be created, in violation of the provisions, as well of art. XVI. of the Constitution as of section 7 of art. IX. of the Constitution. Yet this is not only too narrow a view, but is inconsistent, not only with the general scope of the provisions of the Constitution, but also with the express provisions of section 10 of art. IX. That section, as we have
The quotation from Whaley v. Gaillard, at page 580, relied
Besides, if as we have seen, section 10 of art. IX. of the Constitution confers the power to issue bonds for the redemption of bonds previously issued, either by exchange or sale, and if as we have also seen, the grant of such power carries with it the power to do what is necessary to accomplish the purpose intended, it seems to us that the General Assembly must necessarily be invested with power to make such provisions in regard to the current interest as may be found necessary to accomplish the purpose intended. Any other view would, in certain contingencies, render section 10 absolutely nugatory. For if it
We are of opinion, therefore, that in no view of the case can the objections urged against the “act to provide for the redemption of that part of the State debt known as the brown consol bonds and stocks by issue of other bonds and stocks,” approved 22d of December, 1892, be sustained, and there is, therefore, no ground for the injunction prayed for.
The judgment of this court is, that the application for injunction be refused and that the petition be dismissed.