State ex rel. Shiver v. Comptroller General

4 S.C. 185 | S.C. | 1873

The opinion of the Court was delivered by

Moses, C. J.

The relators, by their petition, seek a writ of mandamus to compel the Comptroller General of the State to levy, and to cause to be levied, the tax for the redemption of the treasury certificates (styled “ Revenue Bond Scrip ”) held by them, as provided by the fourth Section of the Act of March 2, 1872, (15 Stat., 79,) entitled “ An Act to relieve the State of South Carolina of all liability for its guaranty of the bonds of the Blue Ridge Railroad Company, by providing for the securing and destruction of the same.” The four first Sections are set out in the petition ; as the fifth has an important bearing on the points made by the return, it may be proper to insert it here. It is in the following words : “ That if any such Revenue Bond Scrip is received in the treasury for the payment of taxes, the Treasurer be, and he is hereby, authorized to pay out such Revenue Bond Scrip in satisfaction of any claims against the treasury, except for interest that may be due on the public debt.”

Various causes are alleged in the return of the respondents, of which we propose to confine our consideration but to two. These apply substantially to the merits involved, and are regarded by the Court as objections which must preclude the issuing of the writ. Whether it is to be viewed as a prerogative writ, not demandable of right, or at the present day as an ordinary process in an action between, parties, it will be refused, if it is manifest that it must be “ vain and fruitless ” or “useless,” (Tapping, 15.) Nor should it be granted “if it will introduce confusion and disorder,” or “ where it is manifestly improper,” (Ibid, 16.) The eases referred to sustain the propositions, which recommend themselves to adoption by the common sense which is intimated in their very expression. The judgments of Courts are intended to have effect by accomplishing the purposes which are proposed by the remedies through which they are attained. If they cannot have complete operation by not only enforcing the act which they command, but of making it productive of the benefit which they propose, they fail in the very capacity or ability which, to give value to judicial orders, must attach.

The object of the application is to cause a levy of the tax for the redemption of the treasury certificates (styled Revenue Bond Scrip) held by the petitioners, and if the suit would be unavailing to this end, or its execution introduce confusion or disorder, it should not be granted.

The respondent, among the causes enumerated in his return against the motion, submits: “That, under proceedings duly had in the Courts of this State, the said Act of March 2, 1872, has been declared null and void, and the said certificates mentioned in the petition have been declared illegal, and the various officers of the State, in the treasury department thereof, have been enjoined from receiving or issuing the same; that such proceedings are still pending, and it would have been, and is now, unlawful for this respondent to take the action prayed for in the petition.” To which the relators reply : “ That the said proceedings therein referred to, by which the said scrip has been declared null and void, do not have for their object to prevent the levy of the tax demanded by these relators, and that no decision can be rendered in said proceedings which will reach the subject matter or object which the petition herein of these relators embraces.”

The object of the said proceedings was to enjoin the State and County Treasurers from receiving the said scrip for past due taxes, and for the taxes thereafter to be collected, and from paying out the same, and the Court so accordingly ordered. The judgment, which stands in full force, and, until reversed, should be accepted as the law by which the State and County officers connected with the levy and collection of the taxes must be governed, holds the emission of the scrip void for its repugnance both to the Constitution of the State and that of the United States. It is attempted to avoid the effect of the said judgment by insisting that the claim now made is for a levy of the tax for the redemption of the scrip, thus seeking entirely to ignore so much of the third Section of the Act as makes “ the scrip receivable in payment of taxes and all other dues to the State, except special tax levied to pay interest on the public debt,” and the whole of the fifth Section, which authorizes “ the payment of the scrip so received for taxes in satisfaction of any claims against the treasury, except for interest that may be due on the public debt.”

To authorize the collection of the tax for the redemption of the particular portion held by these'relators would be at variance with the mode provided by the Act for the redemption of the Revenue Scrip to the amount of $1,800,000, or such amount as shall be proportioned to the amount of bonds delivered. That contemplated its reception into the treasury for taxes and other debts, and its payment for claims against the treasury, and the aid of its employment in carrying on the State finances for at least four years, for it was not until the end of each year from their date that a fourth part of the certificates was to be retired. It looked to an annual tax for its redemption, thus having regard to the whole amount to be issued, and to the retirement annually of the one-fourth. The retirement of one-fourth per annum might have been effected by the retention of that amount annually in the treasury, if so much should be received in one year. It proposed no preference among the scrip holders, nor was any advantage to any particular class intended. The relators allege in their petition “ that, on the surrender of the bonds, the State Treasurer did deliver to the President of the Blue Ridge Railroad Company, in South Carolina, Treasury Certificates of Indebtedness (styled Revenue Bond Scrip) to the amount of one million seven hundred and ninety-six thousand eight hundred and twenty-three and fifty-three one-hundreths dollars.” What particular privilege can these relators claim, to have their scrip retired even before the end of the year, and before any opportunity has been afforded to other holders on the same footing with them to come in and participate ? These views apply to the case, made by the relators as against this respondent, entirely unaffected by the judgment of the Court already referred to, declaring the scrip unconstitutional and therefore void. Viewed, however, in connection with that judgment, how can the Comptroller General, a sworn officer of the State, direct the levy of a tax for the redemption of an obligation declared by a Court of competent jurisdiction to be illegal ? That the Treasurer and not the Comptroller was the party to the cause can make no difference. The judgment acted upon the scrip, which was pronounced “ wholly unauthorized, illegal, and without value for any purpose whatever,” and the Treasurers were enjoined " from receiving it for taxes for any debt or obligation due the State, and from paying it to and for any liability of the State.”

If the scrip wTas illegal, it can furnish do consideration for any action, levy of taxes or judgment of a Court. — Story on Const., Sec. —. But suppose the Comptroller General had ordered the levy of the tax for the purpose prayed by these relators. While his act might have caused great hardship and suffering to the people by exacting another in addition'to the annual tax, and surely prejudiced the monetary condition of the State, as to these relators, r¡ it would have been but a mere ceremony without avail of benefit to them, for the State and County Treasurers were all parties to the proceeding which declared the scrip illegal and void. In the face of that judgment could the Treasurer have ventured its redemption? Was it not forbidden, if not in express terms, by an implication too plain1 and clear for resistance or even doubt? Was it not to be made through the money which was to be raised by the levy ? The writ is, therefore, claimed, where, in the language of Mr. Tapping, “ it would be vain and -fruitless, and without any beneficial effect.”

But the respondent, not only insisting on the cause heretofore noticed, submits “that the said Act is null and void, in that it is repugnant to the Constitution of the United States, which ordains that ‘ no State shall emit bills of credit, or make anything but gold and silver coin a tender in payment of debts.’ ” A careful consideration, induced by the large pecuniary interests involved in the question, together with the fact that provisions both of the State and United States Constitutions have been brought into its discussion, has satisfied us that the Act, so far as it authorizes the emission of Eevenue Scrip, is in violation, of the clause of the Constitution of the United States already referred to. The argument which holds it valid as a subsisting obligation, and répels the character of a bill of credit, under which it is classed by the respondent, seems to rest upon the fact that it was not designed to circulate as money. The opinion of Mr. Justice Willard in the State ex rel. Gary vs. Parker, Treasurer, and Dupre vs. County Treasurers, which was brought to our notice in the case before us, and which will be reported with it, ^(a) is so full and comprehensive on the point as to leave little space for addition or enlargement. It is not because the paper circulates from hand to hand in a community like money that it is to be held a bill of credit, nor does the fact of currency so constitute it. A State might well make the coupons attached to its bonds receivable for taxes without subjecting them to the disabilities of bills of credit as used in the Constitution, even although they might readily pass in payment of debts or for the purchase of commodities. The design to create a circulating medium would be wanting. If, however, the intention to create a currency is apparent from the whole scope of the Act, the emission is a bill of credit within the terms of the Constitution. To the many indications in the Act to show the intended design, which have been pointed out in the opinion of Mr. Justice Willard, it might be added that the Revenue Bond Scrip could never have been intended or proposed as a State security for investment, because it bore no interest, and its value consisted in the fact of its ready capacity and facility in supplying all articles necessary for use or consumption. Its capacity for circulation and its easy convertibility, together with its adaptation to immediate and ready use, would cause a demand for it which a State bond, although bearing interest, could not command. It is contended that, as this was a provision to meet a debt of the State, the purpose was to furnish a fund for payment and not a circulating medium. But may not the two co exist ? May not the medium of payment be of such a kind and character as to create in itself a circulating currency 7 It is not the end which the assumption is to accomplish, but the mode and manner designed and the use contemplated. The State might issue certificates of indebtedness for the redemption of its bonded debt, but if it did so in the form and manner and design proposed by the Act of March 2, 1872, would they be less obnoxious to the objection urged against the Revenue Bond Scrip, because they were issued to pay or meet a debt? It is not the purpose of the issue which affects the instrument through which it is made, but the characteristics and incidents which attach to it as a provision and recommendation for a circulating medium.

The order dismissing the motion has been already filed.

Willard, A. J., and Wright, A. J., concurred.

(a) The opinion of Mr. Justice Willard, to which reference is here made, is as follows :

This motion comes before me under Section 241 of the Code, authorizing a Justice of the Supremo Court to entertain amotion for an injunction in case of the absence of the Circuit Judge from bis Circuit, or bis inability from any cause.

Tbe question involved is, whether an Act of the Legislature entitled “An Act to relievo the Stato of South Carolina of all liability for its guarantee of the bonds of the Blue Ridge Railroad Company, by providing for the securing and destruction of the same," passed March 2nd, 1872,15 Stat., 79, is unconstitutional so far as it attempts to authorize the issue of certain obligations from the Treasury of the State, designated therein as Revenue Bond Scrip, on the ground that such Act contravenes so much of the tenth Section of the first Article of the Constitution of the United States as declares that no State shall “emit bills of credit."

It is claimed by the plaintiff that the obligations contemplated by the second and third Sections of that Act are bills of credit within the meaning of the Constitution of the United States, and that the provisions of such law for the issue of such obligations, intend an emission within the sense and meaning of that Constitution.

Section 3 provides as follows: “That, to carry out the purposes of this Act, the State Treasurer is hereby authorized and required to have printed or engraved on steel, as soon as practicable, Treasury Certificates of Indebtedness, to be known and designated as Revenue Bond Scrip of the State of South Carolina, in such form and of such denominations as may be determined on*by the State Treasurer and the President of the Blue Ridge Railroad Company, in South Carolina, to tho amount of one million eight hundred thousand dollars; which Revenue Bond Scrip shall be signed by the State Treasurer, and shall express that the sum mentioned therein is due by the State of South Carolina to the bearer thereof, and that the same will bo received in payment of taxes and all other dues to tho Stato except the special tax levied to pay interest on the public debt."

The question arises, arc tho obligations contemplated by this Section bills of credit within the meaning of the Constitution of the United States ?

The proper definition of tho term “bills of credit" has been settled in theSupreme Court of tho United States, after much able and earnest discussion, eliciting marked differences of opinion.

Chief Justice Marshall, in delivering the opinion of the majority of the Court in Craig vs. Missouri, 4 Peters, 490, declares that the term “ bills of credit," as employed in the Constitution of the United States, “signify a paper medium intended to circulate between individuals, and between government and individuals for the ordinary purposes of society," and “that tho prohibitions against such emissions comprehends the emission of any paper medium by a State government for the purpose of common circulation."

This definition received much consideration as to its accuracy in the subsequent ease of Briscoe vs. Bank, 11 Peters, 257, but was enforced rather than impaired by the decision in the last named case.'

The opinion of the majority of the Judges in Briscoe vs. Bank was delivered by Justice McLean, who, it will be observed, was one of the Judges who dissented in Craig vs. Missouri. He declares, after reviewing the various definitions of the term in question that had been brought into discussion in Craig vs. Missouri, that, 1st. “The definition then which does include all classes of bills of credit emitted by the colonics or States is a paper medium issued by the sovereign power, containing a pledge of its faith, and designed to circulate as money.”

It is not necessary for the purposes of the present case to inquire whether the foregoing definition is exhaustive of the whole sense and meaning of the constitutional prohibition, for the present case will be found fully within that definition, and, therefore, covered by the authority of the Supreme Court of the United States in the case already cited.

It remains, then, to inquire whether the obligations contemplated by the Act under consideration are intended to have the following characteristics:

1st. That they are to be issued by a State in its sovereign character.

2d. That they were to contain a pledge of its faith; and

3d. That they were intended to circulate as money.

The first and second propositions are settled in the affirmative by the terms of Section 4, which provides, as we know, for a paper to be issued by the State Treasurer, importing to be an obligation on the part of the State to pay a certain sum of money to the bearer. It will, therefore, be necessary only to inquire whethor it was the intention of the Act that this paper should circulate as money.

An inquiry of this nature calls into exercise one of the most important and responsible judicial powers incident to a constitutional government. It involves the examination of an Act of the Legislature, with the view of fixing the purpose and intent of the Legislature in the passage of such Act, not merely as a moans of effectuating such purpose and intent of the law-making power by means of the judicial authority, but for the purpose of testing the authority of the law-making power itself in the case, under the supreme law of the land.

The principles that should govern such an enquiry are well illustrated in the case of Craig vs. Missouri, already referred to, and the mode in which they are there applied to a case remakably similar to the one in hand, marks out very clearly the line of inquiry appropriate to be pursued.

To fix this meaning of the term “money,” it must be taken in the ordinary sense understood by the community in their mutual dealings. A strenuous attempt was made in the case of Craig vs. Missouri, and in Briscoe vs. Bank, to limit the sense of the term “ money ” as entering into the question of what constitutes a bill of credit to the legal or technical sense of the term, which embraces only the legal coinage of the country, and that which is its legal equivalent, or, in other words, is made legal tender; but that line of argument did not prevail.

The question, properly stated, is whether a particular obligation is what the community regards and deals with as money. The answer to it is that whatever is current in a form convenient to pass from hand to hand and that may bo used to pay debts or purchase commodities is, in this sense, money. It is not essential to such character that tender of payment in such substituted medium should have the force and effect of a legal tender, nor that it should have an actual capacity for paying debts and purchasing commodities equal to that of money possessing intrinsic or legal value. That which passes current as money may be depreciated without losing its character as money, and depreciation necessarily implies a diminished capacity for paying debts and purchasing commodities.

On the other hand, it is not enough to characterize an obligation as money merely because certain individuals havo found it convenient to use it in place of money in their mutual transactions. There must be a dealing in the medium as money by tho community as such, although the extent to which such dealing by the community is carried is, perhaps, unimportant to the question.

There are certain characteristics that tend to adapt a paper expressing a promise to pay money or representing money value, to become current in the community as money. It must bo in a form convenient to pass from hand to hand. It must be based either on the credit of a government, a corporation, or an individual, or an association of individuals, or upon a fund pledged or sot apart for its redemption. It must either have undoubted credit, such as arises from its ready convertibility into money value, or it must tend to supply some want, natural or artificial, of the community in which it is intended for circulation. It must be placed upon the community in quantity or volume sufficient to create an adequate interest and motive to secure its'.currency; and, finally, it must have a certain denominational character adjusted to the wants of the community in respect to a circulating medium.

An examination of the Act in question will disclose a clear intent to clothe the obligations in question with attributes fitting them for general circulation as money. These attributes will be considered in the order just stated.

1st. Was it intended that the Revenue Rond Scrip should be issued in a form convenient to pass from hand to hand in ordinary transactions of the community ?

Section 3 gives to the scrip the form most usual and convenient to serve as paper money, viz: That of the usual bank or treasury note. It is to be printed or engraved on steel in such form and of such denominations as the State Treasurer and tho President of the Blue Ridge Railroad Company shall determine. The object of referring this authority as to form and denomination to the Treasurer and the President of tho railroad company is obvious. The Treasurer is, by the Act, to receive and pay out this scrip from the treasury as money; and the President of the railroad company is to receive the scrip as tho representative of his company, and to realize from its employment, and they are most likely to know what qualities as to form and denomination would have tho tendency to give the greatest currency to'the scrip at the time of its issue. A certain discretion is left with them for such purpose. While the third Section determines what shall bo the substantial character of the scrip, as importing a pledge of the public faith and credit, the form of the instrument, as adapting it in external appearance to the common notion of money, is left with those most concerned with its currency.

2nd. It is to be based by the terms of the Act on the credit of the State Government in its sovereign capacity.

3rd. The Act attempts to confer upon it not only the full credit capable of being conferred by the use of the full faith and credit of the State, but to create an artificial want in the community, tending to give it currency. In the first place, it is made receivable in payment of taxes and all other dues to the State, expect the special tax levied to pay interest on the public debt. (Sec. 3.) Again, it is provided that if any such scrip is received in the Treasury for the payment of taxes, the Treasurer is authorized to pay out the same in satisfaction of any claims against the treasury except interest that may be due on the public debt. (Sec. 5.)

These provisions contain two distinct features. The first is a permissive feature affecting each individual in the community who is a tax-payer, and supplying to him a motive to become a purchaser of the scrip. A more energetic means of creating an interest and motive in the community to deal with the scrip, as money, could not be offered short of making the scrip compulsory payment of all debts as between individuals. The other feature involves the communication to the scrip of the capacity of performing all the functions of money in all dealings between State and individuals, excepting only the case of the payment of interest on the public debt. This last feature can have no other significance than that of giving currency to the scrip as money.

It will be observed from the language of the fourth Section, in which the faith and funds of the State are pledged, that such is notin terms that such scrip shall be redeemed by the payment to the bearer on presentation of the amount of money called for by it, but the language is, “that the faith and funds of the State are hereby pledged for the ultimate redemption of said Revenue Bond Scrip.55

It is only ultimate redemption, not payment on demand, that is covered by this pledge. What is meant by ultimate redemption is made clear by the succeeding clauses of that Section. It is provided that a certain tax shall be annually levied for the redemption of the scrip, and it is also provided, that the State Treasurer shall “retire at the end of each year from their date one-fourth of the amount of the treasury scrip hereby authorized to be issued, until all of it shall be retired, and to apply to such purpose exclusively the taxes hereby required to bo levied.” The effect of these provisions is that the holder of the scrip must not look to payment according to the tenor of his scrip, but must sock a market for its circulation undor the influence of the pledge of faith and funds for its ultimate redemption. In other words, an attempt is made to give currency to the issue, notwithstanding the absence of any intention or ability to redeem according to the tenor of the promise by obtaining a credit with the community for the amount of scrip putin circulation on the strength of certain special provisions and a general pledge of the faith and funds of tho Stato for its ultimate redemption.

4th. Tho quantity or volume of the contemplated issue is such as tended to create a strong motivo and interest in the community to keep the scrip in circulation as money. Tho amount, $1,800,000, as compared with the extent of the commercial transactions of the community on which thatamount was intended to be placed, affords the clearest indication of an intention so to affect tho interest of the community as to secure its circulation as money. It was to be placed at once in private hands as valid obligations on tho part of the State. The various provisions of the Act that looked to a distribution among the people preclude the idea that it was intended that the recipients of this large fund should hold it until redemption, or even that it should be kept together in the hands of a limited number qf holders. On the contrary, it was clearly intended for dispersion, and the magnitude of the interest in the hands of the first receivers of tho scrip was sufficiently large to warrant the assumption that it would become thus diffused throughout the community.

5th. As it regards its adaptation in respect of denomination, we have already seen that authority was conferred on those most concerned with its circulation, to adapt the issue in that respect to tho wants of the community. Such a provision shows additional evidence of an intent that the scrip should circulate as money.

Considering the Act in its entire aspect, as well as its integral parts, it is clear that the Legislature intended that the scrip should circulate as money, and that for this reason the provisions of the Act authorizing the issue of scrip are in conflict with the prohibitions of the Constitution of tho United States, as to the emission of bills of credit by States.

The Act being unconstitutional, it is void so far as it contemplates the issue of Revenue Bond Scrip. Itis unimportant, therefore, to inquire whether the scrip thatwas actually issued was conformable to and authorized by the Act.

The injunction heretofore issued must be continued until the final hearing and determination of the action.

But it is said that one part of an Act may bo declared unconstitutional, and the other parts constitutional. There can be no question as to this, nor to the consequence that follows, which Mr. Cooley, at page 77 of Ms work on limitations, thus announces: “ If, when tho unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed wholly independent of that which was rejected, it must be sustained.” The relators seek to apply it here as sustaining the scrip, “ not indeed as a bill of credit, but as a valid obligation of the State, which must be redeemed in the manner fixed by the law, which sets forth the terms and obligations of the contract.” The relators claim a writ of mam damus to require the levy of a tax to pay the Bevenue Bond Scrip which they hold. If it is void, and the respondent cannot, therefore, be required to direct it, for what purpose can he order the levy of the tax, the benefit of which is to inure to them, “not as holders of a bill of credit, but of a vested obligation of the State ?” The Act provides for the collection of the tax to pay the Bevenue Bond Scrip, and if this is void can the respondent look behind it to the consideration on which it was founded, and provide for that in substitution of the void paper ? Is the ministerial officer to assume legislative functions ?

It is said that “ the most startling of all the various propositions stated in the argument of this case is that which it is urged must be the result of the Act being unconstitutional. It is that, the Act being void, and the scrip thereby void, the State may retain the consideration received for it, and judicially repudiate its payment.” The duties and powers of a Court are of a widely different character from those of the legislative department. The one gives construction to Statutes as they find them, without looking to the effect of their conclusion upon either the State or.individuals, through the application of principles by which they are bound to bo governed. The other is invested with the general power of enacting laws according to their own sense of justice and of policy, provided they are not within the inhibitions of the constitutions of the State and the United States. If they transcend either of these, a duty more delicate than any other which the Judiciary is called upon to perform, devolves upon it the necessity of declaring their action void. It is not within the province of the Court to inquire into the consideration which these relators may have paid for the scrip, to see how far the State may bo bound to compensate them for a loss incurred, as they say, in a contract into which they entered with it on the faith of the Act, which, as they contend, expressed the terms designated by the State itself. We are to decide the case before us. If the issue of the Bevenue Bond Scrip by the Treasurer involves the State in some obligation to the holders, which good faith requires it to meet, the duty rests with the Legislature, not the Courts, to measure its extent and declare the mode in which it shall be fulfilled. • . ,