Walker v. State

12 S.C. 200 | S.C. | 1879

Lead Opinion

The opinion of the court was delivered by

McIver, A. J.

For a proper understanding of the questions raised by this appeal, as well as to show how it is that these actions are brought against the state in one of her own tribunals, it will be necessary to make a brief statement of the legislation which gave rise to the cases.

On the 8tb of June, 1877, (16 Stat. 318), the general assembly adopted a joint resolution, which, after reciting that “ great uncertainty” existed in the minds of the taxpayers as to the real amount of the valid indebtedness of the state, provided for the appointment of a commission, consisting of three members of the senate and four members of the house of representatives, whose duty, in general terms, it should be to investigate and report upon such indebtedness. This commission, which, for convenience, will be called, as it is usually designated, the bond commission, were, amongst other things, specially directed to inquire and report: First What was the entire amount of consolidated bonds and certificates of stock which had been issued under the provisions of an act entitled “ An act to reduce the volume of the public debt and provide for the payment of the same,” approved December 22d, 1873, (15 Stat 518), which act will be called throughout this opinion the consolidation act. Second. “Whether there is, in the state treasurer’s office, on file as vouchers, canceled bonds, coupons and certificates of stocks of the issues described, issued in accordance with law and authorized to be consolidated by the act above recited, to the amount required by said act.” These duties involved, therefore, the institution of four inquiries: First What was the entire amount of consolidation bonds and stocks issued? Second. Whether there were vouchers in the treasurer’s office in the shape of canceled bonds, coupons and certificates of stock for which the consolidation bonds and stocks were issued, to the amount required by’the terms of the consolidation act ? Third. Whether such vouchers — canceled bonds, coupons and certificates of stock — had been issued in accordance with law? Fourth. Whether such canceled bonds, <fec., were amongst those which were authorized to be consolidated by the terms of the consolidation act? For, it will be remembered, that the bonds, coupons and certificates of stock authorized to be consolidated are specifically mentioned in that act, while others are not mentioned at all; and others again, a very large proportion — nearly all, in fact — of the conversion bonds, are specially excepted from the operation of the act, because they were issued “ without any authority of law.”

In due time the bond commission submitted an elaborate report, accompanied with various schedules — that called No. 6 being intended to represent the consolidation bonds and certificates “affected by vouchers which, in the judgment of the bond commission, were not issued in accordance with law and authorized to be consolidated under the act to reduce the volume of the public debt and provide for the payment of the same.” Thereupon the general assembly, without either affirming or disaffirming the conclusions of the bond commission, so far as the validity of the bonds and stocks mentioned in Schedule No. 6 were concerned, passed a “joint resolution providing a mode of ascertaining the debt of the state and of liquidating and settling the same.” -March 22d, 1878, 16 Stat. 669. That resolution, in its first section, provides for the establishment of a Court of Claims, which “ shall have jurisdiction to hear and determine any case or cases made up or brought to test the validity of any of the consolidated bonds, coupons and certificates of stock, or of any of the various classes of them, mentioned in the said report of the bond commission as resting on vouchers not issued in accordance with law and authorized to be consolidated by the act of the general assembly, approved December 22d, 1873, entitled ‘An act to reduce the volume of the public debt and provide for the payment of the same,’ and, also, as not issued in accordance with law, and further designated and described in Schedule 6 of said report. In Section 9 it is provided “ that the attorney-general and his said associates, with the consent of the creditors of this state, or so many of them as shall be necessary, may make up a case or cases to be heard and determined in said court, in which, if practicable, the state shall be defendant, to test the validity of the said consolidated bonds and coupons and certificates of stock mentioned in said Schedule 6, bringing before the court the various classes of vouchers which, it is alleged in the report of the said commission, impair the validity of the said consolidated bonds, coupons and certificates of stock, or any of them.” The tenth section directs “ that there shall be levied for the current fiscal year a tax sufficient to pay the coupons and interest orders maturing on the outstanding consolidation bonds and certificates ■of stock during the said fiscal year.” The eleventh directs the payment of such interest on those consolidation bonds and certificates of stock mentioned in Schedule 5 as are subject to no valid •objection, and then Section 12 provides for the payment of the interest for that and the preceding fiscal year on the several classes of consolidation bonds and certificates of stock mentioned in Schedule 6, “whenever there shall be & final adjudication as to the validity of the several classes of bonds and certificates of stock in the manner hereinbefore 'provided, and none other” In pursuance of the provisions of this resolution, the cases which we are now called upon to determine, being actions on coupons of the various classes of bonds mentioned in said Schedule 6, were brought before the Court of Claims, and the majority of that court have rendered their judgment in favor of the state, from which these appeals have been, taken to this court, as provided for in the second Section of the said joint resolution.

The judgment of the Court of Claims is based upon a construction of the provisions of the joint resolution constituting it, by which they hold that their jurisdiction is limited to the inquiry, “ Were the vouchers — that is, the canceled bonds, coupons and certificates of stock — issued in accordance with law and authorized to be consolidated by the act of the general assembly, approved December 22d, 1873 ?” But they carefully avoid the inquiry, as not, in their judgment, within the scope of their jurisdiction, whether, assuming this to be so, the bonds and certificates of stock issued under the provisions of the consolidation act, are, nevertheless, valid or invalid; or, to use their language, whether “the consolidation bonds issued under the act of 1873 are valid or invalid in other respects.” It is very clear, from the grounds upon which that court base their conclusions, that they use the words “not in accordance with law,” not in the sense that there was no act of the general assembly authorizing the issue of the bonds in question, but that the various provisions of the acts authorizing their issue were not complied with, and for that reason they were not issued “ in accordance with law.” But, as we shall see, the real question in these cases is, whether there were any acts authorizing the issue, and that whether the bonds were issued in accordance with the various provisions of sucb acts, is a question comparatively unimportant. An act may fully authorize the issue of bonds, and yet the bonds may not have been issued in strict conformity to the provisions of such act — “ not in accordance with law.” Hence, the fundamental inquiry is, has the power to issue the bonds been conferred ? not whether such power has been exercised “ in accordance with ” the various provisions of the law conferring the power.

We think- it plain that the object of the resolution was to provide for “ a final adjudication ” of the vexed question as to what was the real debt of the state, and not simply to institute an inquiry into the consideration of that which purported to be such debt; for it is too plain a principle of law that a negotiable security — to which class it will be seen the bonds in question belong — whether issued by a private individual, a corporation, or a state, may constitute a valid debt, even though originally based upon an insufficient or fraudulent consideration, or upon no consideration at all, to suppose that any one, much less the legislature which passed this resolution, could be ignorant of it. Hence, when the declared object of the legislature, as evidenced by the title of the resolution, was to provide “ a mode of ascertaining the debt of the state, and of liquidating and settling the same,” we cannot suppose that they intended that the investigation should stop half way, but that it should be complete and thorough — that the debt should be ascertained, and not simply the nature of the consideration upon which it rested. And as this investigation was referred to a judicial tribunal, the necessary inference is that the object was to submit the question to the test of legal principles. But, in addition to this, the express terms of the resolution leave no doubt in our minds as to the real intention. In the first section the Court of Claims is invested with jurisdiction to hear and determine any case brought “ to test the validity,” not of all the consolidation bonds, &c., but only of such of them as ar.e “ mentioned in the said report of the bond commission as resting on vouchers not issued in accordance with law.” Now, the validity of these bonds could not be tested by limiting the inquiry, as the Court of Claims have done, to the question whether the vouchers — the canceled bonds, &c. — were issued in accordance with law; for it may be, as we shall presently see, that such vouchers are liable to all the objections alleged against them in the judgment of the Court of Claims, and yet the consolidation bonds may still be valid debts of the state. It seems to us that the construction which the Court of Claims have placed upon the words “as resting,” in the first section of the resolution, is altogether inadmissible, and that those words are used merely for the purpose of indicating a particular class of bonds whose validity is to be tested. For it will be remembered that while the objection urged by the bond commission to much the larger part of the bonds, &c., mentioned in Schedule 6 is because they were issued in exchange for bonds, coupons or stock which, though embraced within those mentioned in the consolidation act, were yet illegally consolidated, because they were not issued in accordance with law, the additional objection is made to others because they were issued in exchange for bonds, coupons or stock which were not embraced within those mentioned in the consolidation act. Hence, in the first section of the resolution provision is made for testing the validity not only of that class of bonds which is subject to the first objection, but also of that class of bonds which is subject to the second as well as the first objection, so as to insure the consideration of both objections. But were there any doubt, the provisions of the ninth section demonstrate that the construction which we have adopted is the correct one. In that section the attorney-general and his associates are directed to make up a case. What for ? Not to try the question whether the vouchers upon which the consolidation bonds rest were issued in conformity to the provisions of the several acts authorizing their issue, but “to test the validity of the said consolidated bonds and coupons and certificates of stock mentioned in Schedule 6 ; ” and certainly the additional words contained in that section— “ bringing before the court the various classes of vouchers which it is alleged in the report of the said commission impair the validity of the said consolidated bonds, coupons and certificates of stock, or any of them ” — cannot have the effect of either enlarging or contracting the issue which the cases were made up to try. The only object of these additional words was to instruct the attorney-general and his associates to see to it that the grounds upon which the consolidation bonds had been assailed in the report of the bond commission should be brought fully before the court which was specially constituted to try the above-stated issue, and perhaps to provide that these vouchers should be competent evidence upon such trial. To make the matter still clearer, the legislature proceeded, in the tenth section, to direct the levy of a tax sufficient to pay the interest on all the consolidation bonds, &c.; and in the twelfth section provided that the interest on the bonds, &c., mentioned in Schedule 6 should be paid “whenever there shall be a final adjudication as to the validity of the said several classes of bonds and certificates of stock in the manner hereinbefore provided and none other ” This language would seem to place it beyond dispute that it was intended to invest the Court of Claims with full jurisdiction to make “ a final adjudication” (subject only to appeal, as provided in the resolution,) of all questions touching the validity of the consolidation bonds, and that when such adjudication was made no question as to the validity of such bonds should remain open; but if such adjudication was in favor of the bonds, then the interest thereon was to be paid. Now, as under the construction adopted by the Court of Claims some of these questions were left open and undecided, it is very clear to our minds that such. construction was not the proper one.

In reviewing the judgment of the Court of Claims two general questions present themselves: First. Are the conclusions announced in that judgment as to the existence of the several infirmities alleged against the several classes of vouchers well founded ? Second. If they are well founded, does it follow that the consolidation bonds, &c., resting in whole or in part upon such vouchers, are invalid and not binding obligations of the state? But, from the view which we take of this ease, it will only be necessary for us to consider the second question, as the answer to that will be conclusive of the result in the cases now before the court.

But for the fact that a different view has been suggested from u, source which we have always been accustomed to (treat with the highest respect, we would have deemed it scarcely necessary to say that in the consideration of this question we are bound to regard the constitution of 1868 as the fundamental law of the state, and that all acts of the general assembly passed since its adoption, not in violation of any of its provisions or those of the constitution of the United States, are just as valid 'and of the same binding force and effect as any other statute passed at any other period of the history of the state. Any other view would be in violation of the fundamental principles upon which all republican governments rest, and would lead to inextricable confusion, and perhaps to civil commotion and strife. Without undertaking to inquire into the mode and manner by which the constitution of 1868 was adopted, it is enough to say that the people of the state have for years acquiesced in it, and treated it as the fundamental law of the state. The whole machinery of the state government was framed and is now operating under the provisions of that constitution. The very investigation which led to the framing of the cases now before the court was set on foot by a legislature elected in pursuance of its provisions. The Court of Claims, whose decision we are called upon to review, and this court itself, were both organized under and owe their authority to the constitution of 1868. It is manifest, therefore, that we are bound to regard that constitution as the fundamental law of the state, and all acts passed in pursuance of its provisions, as of the same binding force and effect as any that may be found on the statute-book passed prior to the adoption of that constitution. As Taney, C. J., says, in the case of Luther v. Borden, 7 How. 40: “ Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived; and if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a state court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and' displaced by an opposing government [or was an' usurpation, as seems to be contended for by one of the judges of the Court of Claims], it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.”

The legal principles which determine the answer to the question which we are called upon to solve are few in number, and are well established. It is manifest that the question depends upon the inquiry whether the state has, by a valid contract, bound itself to pay the amounts which the consolidation bonds in question purport-to secure; for though the action in each of" the cases is upon a coupon of one of such bonds, it may be’ regarded, and, for convenience, will be spoken of in this opinion, as if the action were upon the bond itself — the legal principles involved being alike applicable to an action on a coupon as on a bond. State v. Spartanburg and Union Railroad Company, 8 S. C. 163, recognizing City of Kenosha v. Ramson, 9 Wall. 483, and City of Lexington v. Butler, 14 Wall. 296.

Now, as the Supreme Court of the United States has uniformly held that, while they will, as a general rule, regard the construction given by state courts to state legislation and state constitutions as conclusive, such rule is subject to this exception; that where the question involved is not only whether such legislation impairs that which is admitted to be a contract, but whether that which is alleged to be a contract, is, in fact, a contract; (State Bank of Ohio v. Knoop, 16 How. 369; Jefferson Branch Bank v. Shelly, 1 Bla. 436; Gelpeke v. Dubuque, 1 Wall. 203; Township of Pine Grove v. Talcott, 19 Wall. 666;) and as the general assembly, in providing for this investigation, has, in express-terms, recognized the right of the parties to invoke the judgment of this tribunal of last resort, it becomes important to examine-the question in the light of the decisions of the Supreme Court of the United States.

There can be no doubt but that coupon bonds, like these under - consideration, as well as the coupons thereof, are negotiable securities, and, as such, are subject to the same rules of law as govern that class of securities. White v. Vermont R. R. Co., 21 How. 575; Mercer County v. Hackett, 1 Wall. 83; Cromwell v. County of Sac., 96 77. S. 57; Langston v. S. C. R. R. Co., 2 S. C. 248.

There is as little doubt that states which issue negotiable paper incur the same responsibilities which attach to individuals or corporations in like case. United States v. Bank of Metropolis, 15 Pet. 392; Murray v. City Council, 96 77. S. 445 ; Floyd Acceptances, 7 Wall. 666. As is said in the last-named case, “it must be taken as settled that when the United States becomes a party to what is called commercial paper — by which is meant that class of paper which is transferable by endorsement or delivery, and, between private parties, is exempt in the hands of innocent holders from inquiry into the circumstances under which it was put in circulation — they are bound, in any court to whose jurisdiction they submit, by the same principles that govern individuals in their relations to such paper.”

That the plaintiffs in these cases, as well as the holders of the coupons for which the bonds here in question were exchanged, are entitled to be regarded as bona fide- holders before maturity, and entitled to all the rights incident thereto, we do not think can be questioned, as there is no proof to the contrary — at the very utmost, only suspicion. The rule upon this subject, as stated by Mr. Justice Swayne in the case of San Antonio v. Mehaffy, 96 U. S. 314, upon the authority of 2 Pars, on Bills and Notes, 9, and Pinkerton v. Bailey, 8 Wend. 600, is that “the holder of commercial paper, in the absence of proof to the contrary, is presumed to have taken it under-due for a valuable consideration, and without notice of any objection to which it was liable;” and, as is said by Mr. Justice Field in Cromwell v. County of Sac., 96 U. S. 57-8, in speaking of similar obligations issued by municipal corporations, “ they are transferable by delivery, and, when issued by competent authority, pass into the hands of a bona fide purchaser for value before maturity, freed from any infirmity in their origin. Whatever fraud the officers authorized to issue them may have committed in disposing of them, or however entire may have been the failure of the consideration promised by parties receiving them,, these circumstances will not affect the title of subsequent bona fide purchasers for value before maturity or the liability of the municipalities. As with other negotiable paper, mere suspicion that there may be a defect of title in its holder, or knowledge of circumstances which would excite suspicion as to his title in the mind of a prudent man, is not sufficient to impair the title of the purchaser. That result will only follow where there has been bad faith on his part. Such is the decision of this court, and substantially its language, in the •case of Murray v. Lardner, 2 Wall. 110.” This is a very strong case upon the subject. The facts, in brief, were these: Negotiable bonds were stolen from Lardner and sold to Murray, a broker in New York, under circumstances well calculated to ■excite his suspicion, though there was no proof of any actual guilty knowledge on his part — the complaint against him being that he did not prosecute the inquiry which such circumstances of suspicion naturally suggested. The court, after an elaborate review of the English cases, held that he was not bound to do so; that the possession of negotiable paper is presumptive proof of good title, and the burden of proof is upon him who assails the right claimed by the party in possession, and laid down the rule in very much the same language as that above quoted, declaring it to be settled law, from which there was no disposition ■to depart.

If, then, the bonds here in question are negotiable securities .■and the holders thereof are bona fide holders, our next inquiry will be as to the rule governing that class of securities in the hands of such holders. The rule, as stated by one of the most recent writers on this branch of commercial law, is that if such ■securities are issued by competent authority, they are, in the hands of such holders, unaffected by, and exempt from inquiry into, the circumstances under which they were put into circulation. 2 Dan. on Neg. Inst., §§ 1502-3. Now, as corporations or states issuing such paper must necessarily do so through the instrumentality of officers or agents, the only inquiry in such cases is, whether the officer or agent has been entrusted with authority to make and issue the paper, and it is not competent to inquire into his conduct in making the issue. . If he has been guilty of irregularities or even frauds in exercising the power with which he has been entrusted, the loss thereby occasioned must fall upon the party who entrusted him with-such power, and not upon the innocent holder, who has taken the paper in the usual course of trade. The rule, as stated in Supervisors v. Schenck, 5 Wall. 784, is: “ "When a corporation has power, under any circumstances, to issue negotiable securities, the decision of this court is that the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such holder than any other commercial paper.” And this rule has been re-affirmed in the recent case of San Antonio v. Mehaffy, 96 U. S. 314, and again in the still more recent case of County of Macon v. Shores, 97 U. S. 278 — 9. In the case of Commissioners of Knox County v. Aspinwall, 21 How. 545, it was held that where bonds have been issued by the board of county commissioners, under the authority of an act of the legislature, which prescribed certain conditions upon which the bonds were to be issued, “ the purchaser of the bonds had a right to assume that the vote of the county, which was made a condition to the grant of the power, had been obtained, from the fact of the subscription by the board to the stock of the railroad company and the issuing of the bonds. The bonds, on their face, import a compliance with the law under which they were issued. ‘This bond/ we quote, ‘is issued in part payment of a subscription of $200,000 by the said Knox county to the capital stock, &c., by order of the board of commissioners/ in pursuance of the third section of act, &c. The purchaser was not bound to look further for evidence of a compliance with the conditions to the grant of the power.” In the comparatively recent case of Coloma v. Eaves, 92 U. S. 490, the foregoing case is characterized as a leading case upon the subject, and is said to have established two propositions. First' “ That the issue of the bonds containing a recital that they were issued under and in pursuance of the legislative act, was a sufficient basis for an assumption by the purchaser that the conditions on which the county (in that case) was authorized to issue them had been complied with, and that the purchaser was not bound to look further for evidence of such compliance, though the recital did not affirm it.” Second. That “where legislative authority has. been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality.” In Coloma v. Eaves, it is said that the first proposition has been re-affirmed in the cases of Moran v. Miami County, 2 Bla. 732; Mercer County v. Hacket, 1 Wall. 83; Supervisors v. Schench, 5 Wall. 784; and in Meyer v. Muscatine, 1 Wall. 384, and, though doubted and dissented from by individual judges, has never been overruled. But, so far as the second proposition is concerned, it is said that it “ has been so firmly seated in reason and authority that it cannot be shaken.” This case has been repeatedly recognized and affirmed in a number of subsequent cases, among which may be mentioned Marcy v. Oswego, 92 77. S. 637; Humboldt v. Long, 92 U. S. 642; Commissioners v. Bolles, 94 U. S. 104; County of Warren v. Marcy, 97 U. S. 96. That the effect of these decisions is to reaffirm both of the propositions laid down in Knox County v. Aspinwall, is made manifest by what is said in the dissenting opinion of Mr. Justice Bradley in Coloma v. Eaves, 92 U. S. 493, and in the dissenting opinion of Mr. Justice Miller in Humboldt v. Long, 92 U. S. 649. We think, therefore, that the result of the cases in the Supreme Court of the United States clearly is, that when an act of the legislature authorizes the issue of bonds by a municipal corporation upon certain conditions therein named, and the bonds are issued by the proper officers of such corporation, containing a recital that they are issued under the authority conferred by such act, that such recital is conclusive in favor of a bona fide holder — that all the necessary conditions named in the act have been complied with, as a purchaser is not bound to look beyond the legislative act and the recitals contained in the bonds. As was said in Marcy v. Oswego, 92 U. S. 641, “ the subsequent issue of the bonds containing the recital above quoted — that they were issued ‘by virtue of, and in accordance with,’ the legislative act, and in ‘pursuance of, and in accordance with, the vote of three-fifths of the legal voters of the township ’ — was another determination, not only of the result of the popular vote, but that all the fads existed which the statute required in order to justify the issue of the bonds.” The case of Weith and Arents v. City of Wilmington, 68 N. C. 24, which seems to be much relied upon by the counsel for the state, does not seem to us to be in conflict with the foregoing views; for in that case there was an absolute lack of power to issue the bonds which were there brought into question, and they were, therefore, properly held to be absolutely void even in the hands of a bona fide holder. The act under which the bonds were issued only authorized their issue in exchange for outstanding valid debts of the state, and as it was conceded that the original bond in exchange for which they were issued was given for money advanced in aid of the rebellion, which class of debts had been declared by the constitution of that state to be absolutely void, there was, of course, no authority whatever for the issue of the bonds in question.

It is true that the cases which establish the foregoing principles arose upon bonds issued by municipal. corporations; but if, as we have seen, negotiable bonds issued by states are subject to the same rules which govern that class of paper when issued by individuals or corporations, it is difficult to conceive how this can make any difference — and, indeed, it seems to be conceded in the argument on both sides that there is no distinction. The rule grows out of the principles which apply to that class of paper, and is in no wise dependent upon the character of the parties who make or issue such paper.

There is, however, a very strong case in which these principles were applied to bonds issued by a state. California v. Wells, Fargo & Co., 15 Cal. 236. In that case certain warrants which had been issued by the proper authorities of the state were paid and deposited in the office of the state treasurer. The warrants were afterwards stolen and presented to the treasurer to be funded under the provisions of an act entitled “ An act to provide for paying certain equitable claims against the state.” Bonds were issued in exchange for the stolen warrants, the treasurer at the time not knowing that they had been stolen. Subsequently discovering this fact, he demanded the surrender of the bonds, and, upon refusal, brought this suit. There was no allegation or proof that the defendants knew the facts showing the fraud. It was held that, the warrants being negotiable paper, the bonds issued in exchange for them were valid debts in the hands of innocent holders, as the defendants were declared to be, in the absence of any proof to the contrary.

The practical question, then, in these cases is, were the bonds in question issued by competent authority ? As the bonds purport to be the bonds of a state, and as a state cannot, like an individual, directly make and issue a bond, but must do so through the instrumentality of its officers or agents, who can only act under special authority conferred upon them, the inquiry in these cases is narrowed down to the question whether such authority was conferred upon the officers who issued the bonds in question. This authority, under the constitution of the state, could only be conferred by an act of the general assembly passed in conformity to the provisions of that instrument. Hence, it is not sufficient to show that an act of the general assembly has been passed authorizing the issue of such bonds, ■ but it must also appear that such act is not subject to any constitutional objection. Town of South Ottawa v. Perkins, 94 U S. 260; Harshman v. Bates County, 92 U. S. 569. "Which,,though overruled by the case of Cass County v. Johnston, 95 U S. 360, as to the point that the act there in question was unconstitutional, may yet be regarded as authority for the proposition that if the act conferring the power to issue the bonds is unconstitutional the issue of such bonds will be without authority, and the bonds, even in the hands of a bona fide holder, will be invalid. So, too, if, by a proper construction of the terms of the act, the authority to issue the bonds is not conferred, the bonds will be invalid in the hands of a bona fide holder. As, for example, in the case of Marsh v. Fulton County, 10 Wall. 676, where the act authorized the issue of bonds to one railroad corporation and the bonds in question were issued to another corporation, which, though a portion of the first-named corporation, was held to be a distinct and separate corporation; and in the case of Town of Fast Oakland v. Skinner, 94 U. S. 255, where the charter of a railroad corporation provided that “it shall be lawful for all persons of lawful age, or for the agent of any corporate body to subscribe any amount to the capital stock of said company,” and it was held that the words “ agent of any corporate body ” applied only to private corporations, and did not, therefore, authorize a municipal corporation to subscribe for stock and issue bonds in payment therefor, and such bonds were, therefore, invalid, even in the hands of a bona fide holder.

The bonds, the validity of which we are called upon to inquire into, all purport.to be bonds issued under the provisions of the consolidation act in exchange for coupons or other bonds called vouchers, purporting to have been previously issued under various acts of the general assembly, which will hereinafter be more particularly mentioned, and it is conceded that in every instance except one — that of the case of G. M. Walker, cashier — the vouchers were amongst those mentioned in the consolidation act, the bond in the case of Walker, cashier, being admitted to rest in part upon a batch of some $9000 of coupons detached from bonds for relief of the treasury, which are not included in the bonds of that class mentioned in the consolidation act. It is likewise conceded that the consolidation act was not passed “ by the vote of two-thirds of the members of each branch of the general assembly,” and was not submitted to a vote of the people, as is required by Article 16 of the constitution, adopted January 29th, 1873, (15 Stat. 466,) where after that time the general assembly undertakes “to create any further debt or obligation” on the part of the state. It cannot, therefore, be allowed the effect of creating “ any further debt or obligation,” and must be regarded as simply a scheme for the re-adjustment of the then existing debt. When, therefore, a question arises as to the validity of any bond which purports to have been issued under the provisions of that act, the inquiries are: 1. Was the debt for which such bond was issued a then existing debt of the state ? 2. If so, was such debt amongst those provided for by the terms of the consolidation act? The answer to the first inquiry depends upon the answer to the question whether the “ vouchers,” which were surrendered upon the issue of the consolidation bonds now in question, were made and issued by competent authority. These vouchers, in the cases now before the court, consist of coupons of bonds of various classes, which, for convenience, may be designated as bonds for relief of treasury — bonds for funding bills of the bank of the state — bonds for the payment of interest on the public debt, first issue — bonds for redemption of bills receivable —conversion bonds — bonds for payment of interest on the public debt, second issue — land commission bonds of 1869 — land commission bonds of 1870. These coupons, as we have seen, were negotiable securities, and hence the only question is whether there was any lawful authority for their issue. Not whether in issuing them the officers charged with that duty complied with all the conditions prescribed in the acts authorizing their issue, or, as it is phrased in the decision of the Court of Claims, whether they were issued “ in accordance with law,” but was there a law authorizing their issue? • The bonds to which these coupons .were originally attached bear upon their face the evidence that they were issued in pursuance of certain acts of the general assembly, referring in express terms to such acts. These bonds, together with their coupons, must, therefore, upon the foregoing principles, be regarded as valid debts in the hands of bona fide holders, if the acts so referred to be constitutional and do in fact authorize their issue, even though it may now appear that all the conditions prescribed may not have been complied with, and even though there may have been the grossest frauds perpetrated by the officers and agents of the state in issuing them and putting them into circulation.

It is not and cannot be denied that the acts so referred to do in fact purport to authorize the issue of the bonds, except in the case of the second issue of bonds for the payment of the interest upon the public debt, for which there does not seem to have been the shadow of authority of any kind, and which, therefore, are absolutely void, no matter in whose hands they may be. For, if the act be construed as giving authority for a second issue, there is no conceivable reason why a third or fourth or an indefinite number of issues could not have been made upon the same construction ; and, certainly, a construction leading to such a result cannot be the correct one. It is a mistake to suppose that because the consolidation act authorizes the funding of $1,197,000 of bonds issued under the act of August 26th, 1868, to pay interest upon the public debt, there was, therefore, an over-issue under that act of $197,000. The. act does not limit the amount of bonds to be issued to $1,000,000, but simply limits the amount to be raised to that sum, and judging from the prices at which the bonds were then selling, the only matter of surprise is that a much larger amount of bonds had not been issued. If this be so, then the only remaining question is whether these various acts purporting to authorize the issue of bonds are constitutional. Various objections have been raised to their constitutionality,, which we will proceed to consider.

The constitutionality of the act entitled “An act to authorize a loan to redeem the obligations known as the bills receivable of the State of South Carolina,” ratified August 26th, 1868, (14 Stat. 17,) is assailed upon the following grounds:

1. Because the debt thereby purported to be contracted was not for the purpose of defraying “ extraordinary expenditures,”' and is, therefore, a violation of Article IX., Section 7, of the constitution. This objection is manifestly based upon the idea that the word “extraordinary” is used in that section in its popular sense, whereas it is clear from the context that it is only used in contradistinction to the word “ ordinary,” as the latter word is used in the sense of current or usual annual expenditures in a preceding section of the same article; for in Section 3 of that article the constitution declares that “ The general assembly shall provide an annual tax sufficient to defray the expenses of the state for each year ; and whenever it shall happen that such ordinary expenses of the state for any year shall exceed the income of the state for such year, the general assembly shall provide for levying a tax for the ensuing year, sufficient, with other-sources of income, to pay the deficiency of the preceding year,, together with the estimated expenses of the ensuing year.” After thus providing for the expenses of the state government (of course meaning the government which was then to go into operation under the provisions of the constitution of 1868), designated as “ordinary,” in the sense of current annual expenses, the constitution proceeds, in Section 7, to provide that “for the purpose of defraying extraordinary expenditures, the state may contract public debts ” — that is, for the purpose of’ defraying all such expenditures as do not fall within the class of ordinary current annual expenses, the state may contract debts. It is a matter of history that upon the reorganization of the state government of 1868, that government found itself not only with an empty treasury, but embarrassed with debts con'tracted by the government to which it had succeeded, some of which were floating in the shape of bills receivable and bills of’ the bank of the state, and some funded, upon which there was a large arrearage of past due interest. These debts were manifestly no part of the ordinary current annual expenses of the state government then going into operation, which the constitu- ’ tion required should be provided for by an annual tax, and to-obtain the means of providing for such- debts, as that government was undoubtedly bound to do, it was absolutely necessary that extraordinary expenditures should be incurred. This objection, therefore, does not appear to us to be well founded.

2. The next ground is that the act in question does not levy a tax annually sufficient to pay the annual-interest of the debt, the-contracting of which it purports to authorize, and is, therefore, in violation of one of the clauses of Article IX., Section 7, of the constitution. This objection is disposed of by the decision of this court in the case of Morton, Bliss & Co. v. Comptroller-General, 4 S. C. 430. Whether that decision be right or wrong,, until overruled by competent authority it stands as an authoritative construction of those sections of the constitution which are therein considered, binding not only upon every citizen of the state, but upon every tribunal which undertakes to administer its laws. To say, as has been said, that each judge has a right to determine for himself the proper construction of a clause of the constitution, regardless of the construction Avhich may have been placed upon it by superior authority, amounts to saying that we have no settled laAV, and that we are living in a state of anarchy. It is quite true that each judge, as well as each of the other officers of the state, takes an oath to observe the constitution ; but the constitution is not what he construes it to be, but what it is construed to be by the tribunal invested with the power to determine what is the proper construction. As long as human language remains imperfect, it is absolutely essential that in every well-regulated community, living under a written constitution, there should be some tribunal of last resort, invested with the power to decide authoritatively upon the true meaning ■of the terms used in such constitutions. Here the Supreme Court is such tribunal, and when it has determined the proper construction of any particular clause of the constitution, such construction becomes the supreme law of the land, binding alike upon every citizen, every officer and every department of the state government, until it is reversed or altered by proper authority — that is, by a subsequent decision of the same tribunal, or by the Supreme Court of the United States in any of those cases which fall within the jurisdiction of that court. But even were we now to overrule the decision in the case of Morton, Bliss & Co. v. Comptroller-General, that could not affect the result in the cases now before the court. That decision was rendered August 27th, 1873, and at the very next session of the general assembly the act was passed under which the bonds were issued which are now called in question. These parties, therefore, must be regarded as having acted upon the faith of the law as it was then authoritatively declared to be, and their rights cannot be affected by any subsequent change in the law, whether such change be effected by statute or judicial decision. Such, at least, is declared to be the law by the Supreme Court of the United States, which, as we have seen, claims and exercises the right finally to decide such questions as we are now considering.

The rule, as stated by Taney, C. J., in Ohio Life Insurance and Trust Company v. Debolt, 16 How. 432, is as follows: “The sound and true rule is that if the contract, when made, was valid by the laws of the state, as then expounded by all the departments of its government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature or decision of its courts altering the construction of the law.” This rule was recognized and affirmed in the same terms in Gelpeke v. Dubuque, 1 Wall. 206, and to it was added the following language: “ The same principle applies where there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere. It is the law of this court. It rests upon the plainest principles of justice. To hold otherwise would foe as unjust as to hold that rights acquired under a statute may be lost by its repeal.” This rule was again affirmed in the case of Lee County v. Rogers, 7 Wall. 181, and the question was there said to be not open for re-examination in the Supreme Court of the United States. It is perfectly manifest, therefore, that even were .we now to overrule the case of Morton, Bliss & Co. v. Comptroller-General, it could not help the case of the state, in view of the rule thus firmly established, whether correctly or not we are not called upon to say, by the tribunal ■of last resort.

It is argued, however, that the decision in the case of Morton Bliss & Co. v. Comptroller-General is confined to the five bonds there considered, none of . which are under consideration here. This, we think, is an entire misconception of the effect of that decision. What is said in that case in regard to confining the remedy there applied for to the particular bonds mentioned in the pleadings, manifestly was not intended to have, and could not have, the effect of confining the operation of the decision of the various constitutional questions there discussed to the five bonds there in issue. A court of justice, when called upon to administer a remedy under a statute which is alleged to be unconstitutional, must first determine whether the statute is liable to the objection urged against it, and, having determined that question, it then proceeds to inquire whether the parties in the case have shown themselves entitled to such remedy. The two inquiries are entirely distinct and separate. Whether the objection urged against the constitutionality of the act is well founded is. one thing, and whether the parties in the particular case have shown themselves entitled to the remedy which the act purports to give rise to is quite another thing. The decision of the one question was an authoritative construction of a particular clause of the constitution, which necessarily affects every one, while the decision of the other question could only affect the parties then before the court. The decision of the various constitutional questions raised in the case must necessarily be conclusive whenever the same questions arise in any other case, though the ap_ plication of the remedy claimed as following from such decision must be confined to the particular parties who had shown themselves entitled to such remedy.

3. The next ground upon which this act is claimed to be unconstitutional is that bills receivable are bills of credit, and are,, therefore, within the prohibition contained in Article I., Section 10, of the constitution of the United States, which declares that “ no state shall * * * emit bills of credit.” Whether bills-receivable are bills of credit within the meaning of that clause of the constitution of the United States it is not important for us now to consider, inasmuch as such a question is, in our judgment, wholly immaterial to the inquiry in which we are engaged. It will be observed that the prohibition is against the issue of' such bills — not against their payment. If, therefore, these bills are of the character claimed for them, it may be that they would be invalid and worthless as legal obligations in the hands of those who happened to hold them, and that if the question were whether the payment of such bills could be enforced, or whether the officers of the state should be restrained from issuing them, the position taken by the attorney-general would be entitled to-great consideration. Such, however, is not the question. It is not, and cannot be, denied that these bills were issued by the proper officers of the state, under an act of the general assembly purporting to confer authority for so doing, and that the state received full value for them. When the state government was-reorganized in 1868, they found these bills outstanding, and,, even though it should be admitted that they were unconstitutional in form, they nevertheless represented valid and bona fideindebtedness of the state. If the state saw fit, voluntarily, to recognize such indebtedness, even though, it stood in a form which affected its legal obligation, and provided for paying it or funding it in a form to which there could be no constitutional objection, we cannot conceive how such an act on the part of the-state, in conformity, as it was, to the plainest dictates of common honesty, can be regarded as in violation of the constitution of the United States. So far from emitting or issuing paper supposed to be within the prohibition of that constitution, the state, on the contrary, made provision for the withdrawal of such paper from circulation, and replacing it with other evidences of indebtedness in a form which would not be amenable to such constitutional objection.

4. The next ground of objection is, that the act in question was not passed by the requisite constitutional majority, by which is meant that the journal of the senate does not show a vote of two-thirds of all of the members in favor of the passage of the act, but only shows a vote of two-thirds of those voting — a quorum of that body. This objection is also disposed of by the decision in the case of Morton, Bliss & Co. v. Comptroller-General, and it is not necessary to repeat here what we have already said in regard to the effect of that decision., Inasmuch, however, as this seems to be one of the principal grounds of objection to that decision, we may add that it is not without the support of very high authority upon this point. See County of Cass v. Johnston, 95 U. S. 360.”

The next act, the constitutionality of which is called in question, is “An act to authorize a state loan to pay interest on the public debt,” ratified August 26th, 1868. 14 Stat. 18. This act is assailed upon the first and'second,,grounds upon which the foregoing act was attacked, and it is not deemed necessary to add anything to what we have said above, except to say that while ■current interest upon the public debt may properly fall within the class of “ ordinary ” expenses, yet the interest provided for in this act not being the current interest, it, cannot be placed in that class, and must, therefore, fall into the, class of “ extraordinary ■expendituresfor it will be remembered that while, provision has been made by the act of September 2lst, 1866, (13 Stat. 391), as supplemented by the act of December 20th, 1866, (13 Stat. 421), for funding the interest on the public debt up to July 1st, 1867, there would be no provision for the interest which accrued from July 1st, 1867, to November 1st, 1868, the beginning of the first fiscal year of the government as then reorganized, unless the act which we are now considering be regarded as intended to provide for such interest. It is a mistake to suppose that provision was made by taxation for such interest by the appropriation act of March 23d, 1869, (14 Stat. 237), for that act was •expressly declared to be an act to, make appropriations for the year commencing in October, 1868, and hence no appropriation made by that act could be regarded as made for the payment of interest accrued prior to October, 1868. Then, too, the very language used in Section 7 of that act — “ For the payment of the interest on the public debt, accrued since the same was last funded, five hundred thousand dollars” — shows that such appropriation was not designed to pay interest accrued prior to October, 1868. The interest was first funded — by the acts of 1866, above cited— up to July 1st, 1867; then the interest which accrued between July 1st, 1867, and November 1st, 1868, the commencement of the first fiscal year of the reorganized state government, was provided for by the act now under consideration, and must be regarded as the last funding of interest ; and the interest for the year commencing in October, 1868, is provided for by the appropriation^act of March 23d, 1869, above cited; while, by the act of March 1st, 1870, (14 Stat. 382), an appropriation is made to-pay the interest on the public debt for the year commencing November 1st, 1869; and so on, from year to year, as long as the general assembly saw fit to provide for the payment of interest on the public debt. Nor can any argument be drawn from the fact that the amount authorized to be raised by the act now under consideration largely exceeded the estimate presented by the comptroller-general at the beginning of the regular session of 1868-9, of the amount of interest due on the first of October, 1868, for that was only an estimate, and it might very well have been -supposed that such estimate, made so soon after the reorganization of the state government by an officer who had had no-previous acquaintance with the operations of the government which had been superseded, would not prove to be correct, and hence the act under consideration might very well give authority to the governor to borrow a sum not exceeding $1,000,000, especially when such authority was qualified by the words, “ or so much thereof as he may deem necessary.” And it must be remembered that such estimate did not include the interest for the month of October, nor did it include any interest upon such additions to the public debt as had been authorized by acts passed at the preceding extra session.

The next act which we propose to consider is, “ An act to close the operations of the Bank of the State,” ratified September 15th, 1868. 14 Stat. 21. The counsel for the state discuss this act as if the bonds issued under its authority created a new debt on the part of the state, and, therefore, contend that its constitutionality must be tested by the provisions of Section 7, Article IX., of the constitution, for they urge the .same objections as were urged against the foregoing acts. But the act now in question does not purport to create any new debt. It does not even authorize the borrowing of money to pay an old debt. It simply authorizes the funding of certain obligations for which the state was liable, then outstanding, in the shape of bills of the bank, in the bonds authorized by the act. In other words, instead of' authorizing the issue of bonds to raise money to pay outstanding debts, it simply authorizes the change of the form of such indebtedness from bank bills to bonds, and its constitutionality must be tested by the provisions of Section 10, rather than Section 7,. of Article IX. of the constitution. Such objections cannot, therefore, be sustained. Another ground of objection, however, is that these bills were not “ stock, bonds or other evidences of indebtedness of the state, issued by it,” and the act isj for that reason, in violation of the provisions of Section TO, Article IX., of the-constitution. It is quite true that these bank bills were not either stocks or bonds of the state, but we are at a loss to conceive how any one can deny, in view of the provisions of the-bank charter, that such bills were “ evidences of indebtedness,” which, though not previously issued directly by the state, were issued by a corporation created by the state, in which it was the sole stockholder, under express authority from the state, for the-sole benefit of the state. For the charter expressly provided that. “ the faith of the state is hereby pledged for the support of the said bank, and to supply’any deficiency in the funds specially pledged, and to make good all losses arising from such deficiency.” 8 Stat. 24. Of course, it must, be remembered that the-liability of the state for these bills was incurred under a constitution which did not impose the same limitations upon the power of the general assembly to contract debts as are contained in the-constitution of 1868, and the state having, under the previous constitution, incurred a liability, evidenced by these bank bills,. issued by its authority, we see no reason why the present state government, under the present constitution, may not change the form of such liability by converting these “ evidences of indebtness ” in the shape of bank bills into bonds.

The next act to be considered is “ An act to authorize a loan for the relief of the treasury,” approved February 17th, 1869. 14 Stat. 182. This act we regard as liable to two constitutional ■objections: 1st. It purports to create a debt which was not “ for the purpose of defraying extraordinary expenditures;” and, 2d. The debt therein sought to be created is not “ for some single ■object,” and such object is not “distinctly specified therein,” .and it is, therefore, in violation of two of the clauses of Section '7, Article IX., of the constitution. As we have already seen, provision had previously been made for the redemption of the bills receivable and for the payment of the interest on the public •debt then in arrear, and we are not aware of any other expenditures which the general assembly were then called upon to provide for which could properly be classed amongst “ extraordinary expenditures,” and none such have been suggested to us. The most natural inference is that the object of this act was to raise money to meet the current demands upon the treasury, in anticipation of the collection of the taxes levied for that purpose, and such demands, as we have seen, fall into the class of ordinary •expenses, and cannot, therefore, be regarded as “ extraordinary expenditures.” Again, the debt which this act purports to authorize cannot be said to be “ for some single object,” nor is such object “ distinctly specified therein.” Money borrowed “ for the relief of the treasury ” might and would be applied to .as many different objects as there were demands upon the treasury. We think, therefore, that this act clearly violates both clauses of the constitution above referred to, and, upon the principles heretofore announced in this opinion, every bond, together with its coupons, issued under the authority of this act is absolutely void even in the hands of a bona fide holder because issued without any authority whatever, and hence every consolidation bond resting upon such bonds or coupons is, to the extent that it does rest upon such bonds or coupons, not a valid debt of the State of South Carolina.

The next act which we propose to consider is “ An act to provide for the appointment of a land commissioner and to define his powers and duties,” approved March 27th, 1869, (14 Stat. '275,) and the act amendatory thereof, approved March 1st, 1870, (14 Stat. 385.) The constitutionality of these acts is assailed: 1. Upon the ground that they relate to more than one subject •and such subjects are not expressed in their titles, and they are, therefore, in violation of Section 20, Article II., of the constitution. This objection has already been disposed of by the decision in the case of Morton, Bliss & Co. v. Comptroller-General, to which may be added the case of San Antonio v. Mehaffy, 96 U. S. 312, in which the Supreme Court of the United States put the same construction upon a similar clause in the constitution of the State of Texas. 2. Upon the ground that these acts were not passed by the requisite constitutional majority — that is, by the vote of two-thirds of all the members of each branch of the :general assembly — but only by the vote of two-thirds of the members voting, being a quorum. This ground has been already ■considered and disposed of. 3. Another objection, however, is that it does not appear that the vote upon the passage of the first of these two acts now under consideration was entered upon the journal of the house of representatives as is required by Section 7, Article IN., of the constitution, which, in speaking of acts authorizing the contracting of public debts, provides that “ no such law shall take effect until it shall have been passed by the vote of two-thirds of the members of each branch of the general assembly, to be recorded, by yeas and nays, on the jou/rnals of each house respectively.” This provision, it will be observed, is more stringent than that contained in Section 21, Article II., providing that “ no bill shall have the force of law until it shall have been read three times, and on three several days, in each house.” In the former, the constitution expressly requires, not only that such law shall be passed by a vote of two-thirds of the members, but also that such vote shall “ be recorded, by yeas and nays, on the journals of each house,” while in the latter the requirement simply is that the bill shall be read three times, and there is no requirement that the fact that it. has been so read shall be recorded on the journal. Hence, while it would be entirely legitimate to infer that an act which has the great seal of the state affixed to it has been signed by the presiding officers of the two houses, approved by the governor, or, in the absence of such approval, certified to by the secretary of state as having become a law by reason of the failure of the governor to return it within the time required by the constitution, deposited in the archives of the state and published among the laws, under the superintendence of the secretary of state, is a valid law, even though the journals may not affirmatively show that the act was read three times, as we have decided in the case of City Council of Charleston v. Grand Lodge of A. F. M., and as has been decided by the Supreme Court of Illinois under a similar clause in the constitution of that state (Supervisors of Schuyler County v. People, 25 Ill. 181,) yet when the constitution expressly requires that the vote upon the passage of a bill shall be entered upon the journal, and the journal does not contain such entry, there is no room for inference, but there is positive proof of the omission of one of the constitutional requirements, and, in such a case, the bill would fail to become a law. Town of South Ottawa v. Perkins, 94 U. S. 260, in which the Illinois cases are collected, and from them it will appear that the Supreme Court of that state draws the same distinction that we have done. If, therefore, the objection which we are now considering be well founded in fact, it is well taken. It appears to us, however, from an inspection of the journal of the house of representatives, that there is no foundation in fact for the objection. It is quite true that on page 425 of house journal for the sessions of 1868-69, it does not appear that the vote on the third reading of the original bill was taken by yeas and nays, or that such vote was recorded by yeas and nays on the journal; but it is very obvious that this was not the vote upon the bill as it finally passed, for an inspection' of the senate journal for the same session, pages 521-526, will show that the bill which came from the house was entirely remodeled, and the house journal, pages 630-632, shows that the bill, as thus remodeled, was finally passed by a two-thirds vote — yeas 50, nays 15 — and that such vote was recorded by yeas and nays on the journal of the house. This we regard as a substantial compliance with the provisions of the constitution, more so, in fact, than if the journal simply showed the passage of the bill as it originally went from the house by a two-thirds vote and did not show such a vote upon the final passage of the bill after it was amended in the senate, for the vote on the bill as it went from the house would not show the assent of the requisite two-thirds of that body to the provisions which eventually became the law, while the vote upon the bill after it was amended in the senate did show such assent, and this is the real object of that clause of the constitution. It seems to have been the practice of the house of representatives at the time these acts were passed, contrary to what had been previously the practice, to read bills originating in the house three times before they were sent to the senate, whereas under the former practice after a bill had received two readings in the house it was sent to the senate for its consideration, and, if amended in that body, such amendments could be considered when the bill came back to the house for its third reading. But under the other practice, where a bill has been so materially altered in the senate as the one now under consideration seems to have been, it would practically defeat the very object of the constitutional provision now under consideration to hold that a two-thirds vote on the bill, as it went from the house after its third reading there, would satisfy the requirements of such provision. For it might frequently happen, just as it did happen in reference to the very act • we are discussing, that its features might be very materially changed in the senate and totally new provisions inserted, which might be passed by a bare majority of a quorum in the house, and the various provisions of the act would not in fact have what this provision of the constitution was intended to secure — the assent of two-thirds of both branches of the general assembly to all the various provisions of the act; so that when the journals show, as they do in reference to the act under consideration, that the bill, as amended, received the assent of the requisite two-thirds of both branches of the general assembly, we think the constitutional requirement was fully complied with.

As to the “ Act to provide for the conversion of state securities,” approved March 23d, 1869, (14 Stat. 241,) it not being an act to authorize the borrowing of money or the contracting of •any new debt, but simply providing for a change in the form of that then existing, the question of the validity of the bonds issued under it must be determined by an inquiry into the validity of the securities therein authorized to be converted. So that any bond issued under this act, which was not issued in exchange for some then-existing valid debt of the state, in the form •of stocks or bonds, was issued “ without any authority of law,” and is, therefore, absolutely void, even in the hands of a bona fide holder.

The “Act to authorize the financial agent of the State of South Carolina to pledge state bonds as collateral security, and for other purposes,” approved March 26th, 1869, (14 Slat. 258,) will next be considered. It is not pretended that the object of this act was to authorize the issue of any bonds or the contracting of any additional debt, for its sole purpose seems to have been to authorize the financial agent to dispose of the bonds, the issue of which had been previously or should be thereafter authorized, in a particular way. This act, therefore, did not come within the provisions of Article IX., Section 7, of the constitution, and the fact that it was not passed by a two-thirds vote cannot affect its validity. In Article IX., Section 14, the constitution prescribes that “Any debt contracted by the state shall be by loan on state bonds,” but how such loans are to be effected •is left to the discretion of the general assembly. "Whether they shall be by a sale of the bonds, (the most questionable mode, if the words above quoted be given a rigid literal interpretation,) by direct borrowing, as in case of one individual borrowing from his neighbor a thousand dollars, and giving his bond directly to the lender for the amount, (a mode so inconvenient in case of a state as to be almost impracticable,) or by a„deposit of the bonds as collateral security for such sums as may from time to time be advanced to the state, as its necessities require, are all matters which are left for the general assembly to determine. We do not see, therefore, how the act now under consideration can be regarded as in conflict with any provision of the constitution.

The last objection which is urged against all the bonds issued under the several acts which we have been considering is, that they were not registered in conformity to the provisions of Section 14 of Article IX. of the constitution. The language of that section is as follows : “Any debt created by the state shall be by loan on state bonds of amounts not less than fifty dollars each, • on interest, payable within twenty years after the final passage of the law authorizing such debt. A correct registry of all such bonds shall be kept by the treasurer, in numerical order, so as always' to exhibit the number and amount unpaid, and to whom severally payable.” It is very manifest that this provision in regard to the registry of the bonds is a mere direction to the-treasurer, and was not designed to be a condition precedent, the performance of which should be necessary to the validity of the bonds. It does not provide that ■ before any bond is issued it shall be registered by the treasurer, but it is clear that the registration is to follow, not precede, the issue of the bonds, and could not, therefore, affect their validity. No other construction is consistent with the language used, for it will be observed that the treasurer is not only required to keep such registry, but he is to keep it “ so as always to exhibit the number and amount unpaid.” Now, as the mode of keeping the registry must be regarded as quite as imperative as the direction to keep it, it must be manifest that it never was designed that this provision of the constitution should be regarded as essential to the validity of the bonds, for in order to keep such registry “ so as always to exhibit the number and amoumt unpaid,” it would, of course, be necessary for the treasurer to malee alterations in the registry, from time to time, as one or more of the bonds were paid; and surely it would not be pretended that the failure of that officer to keep the registry in such mode, by making such alterations as from time to time became necessary, would invalidate bonds which otherwise would have been good. The constitution was never designed to afford the means of setting a trap for the holders of the bonds of the state by making their rights dependent upon the performánce or non-performance of dirty by one of the officers of the state after the bonds had been issued.

Our conclusions, therefore, are:

1. That all the bonds issued under an act entitled “An act to reduce the volume of the public debt and provide for the payment of the same,” are valid obligations of the State of South Carolina, except as follows: 1st. Such as were issued in exchange for bonds issued under the act entitled “An act to authorize a loan for the relief of the treasury,” or for the coupons of such bonds. 2d. Such as were issued in exchange for the second issue of bonds under an act entitled “An act to authorize a state loan to pay interest on the- public debt,” or the coupons of such bonds. 3d. Such as were issued in exchange for those conversion bonds which were issued in exchange for either of the two Glasses of bonds last mentioned, viz., bonds for relief of the treasury and the second issue of .bonds to pay interest on the public debt, or in exchange for the coupons of such conversion bonds.

2. If any consolidation bond rests wholly upon, any of the three objectionable classes of bonds or coupons just mentioned, then it is wholly void j but if it rests only in part upon such objectionable bonds and coupons, then it is only void to the extent which it does rest upon such objectionable bonds or coupons, and for the balance it is a valid obligation of the state.

3. That the burden of proof is upon the state to show that any particular bond which may be brought into question does rest either in whole or in part upon such objectionable bonds or coupons, and if in part only, then the state must show what part is so affected.

The judgment of the Court of Claims is set aside, and the cases are remanded to that court for such further proceedings as may be necessary under the principles herein announced.

Willard, C. J.

It will be unnecessary to add anything to what has been already said, in the opinion of the court, as to those matters in respect to which there is entire unanimity in the court. I shall confine myself to noticing the leading points, as to which some difference of opinion has arisen in the court.

The first question that will be considered is, whether constitutional authority existed for the issuing of the class of bonds that have been termed the second issue of bonds to pay interest on the public debt. The history of the transaction in question is briefly as follows: An act was passed August 26th, 1868, entitled “ An act to authorize a state loan to pay interest on the public debt,” authorizing the governor “ to borrow, on the credit of the State •of South Carolina, on coupon bonds, within twelve months after the passage of this act, a sum not exceeding $1,000,000, or as much thereof as he may deem necessary to pay interest on the public debt.” It appears in evidence that bonds to the nominal amount of $1,000,000 were issued and sold under the authority of this act. It also appears that after such bonds had been so issued, and, as we must assume from the evidence, had become the property of private individuals, it was urged upon the financial board, which consisted of the governor, the attorney-general and the state treasurer, that the bonds would be more salable if in a form that would not make it appear that they were intended for the payment of interest on the public debt. The financial board thereupon assumed authority to retire the outstanding issue by replacing it with bonds prepared under the same act, and bearing the same date as the bonds which had already been issued thereunder, but omitting from their face the objectionable statement that was supposed to prejudice their marketable quality. It appears also that bonds so issued for the sole purpose of replacing such previous issue were sold for original bonds, and were not, in fact, used for the purpose of replacing previous issues. The question is, whether sufficient authority existed in the financial board to create bonds of the class just named that in the hands of a bona fide holder for value, would constitute a valid obligation of the state.

The first question is one of fact, namely, what was the nature of the authority that the financial board thus attempted to exercise ? This must be disposed of upon the evidence in the case. It is very clear that what the financial board assumed to do, and <dl it assumed to do, was to change in point of form, as to an immaterial matter, so far as it affected the liability of the state, outstanding obligations of the state. It is not pretended that the board intended to create one dollar of new debt. There is not the slightest evidence that the governor, who was a member of the board, intended or had in contemplation as a consequence of the transaction to add to the sum that had already been borrowed under the act already mentioned, a single dollar to be applied according to the purposes of that act, namely, “ to pay interest on the public debt.” The sole object of the transaction, as we are bound from the evidence before us to conclude, was to make-an immaterial change in the form of securities evidencing outstanding obligations of the state.

It is not competent to argue that because the action of the-board appears to have resulted in the creation of new debt, that that circumstance stamps the nature of the authority attempted to be exercised. In the first place, we are bound from the evidence to assume that there was a distinct abuse of the authority attempted to be vested in him, on the part of the financial agent,, who, instead of issuing the new bonds for the exclusive purpose of retiring the first issue, as to part of them at least, used them for the purpose of creating a new debt. We have no right as matter of legal conclusion, in the absence of evidence supporting such a conclusion, to hold that the board intended the wrong accomplished by the abuse of its authority. But even if it had been made to appear that the board intended that the retirement of the old issue should be accomplished by the sale of the new issue in open market, and the application of the proceeds of the sale to retiring the old bonds, that would leave the nature of the authority attempted to be exercised by the board entirely unchanged. It would still be, in its nature and essence, an attempt to change, as to matter of form, only an old obligation. It may be argued that such a method of effecting the change would not be a fair exercise of the power of conversion; that is quite a different question, that need not be passed on here. A power does not change its nature merely because it is abusively exercised. We are here drawing a distinction between two very different classes of powers, both of which are recognized by the constitution, but differ from each other most materially, both as it regards the sanctions necessary to give validity to the exercise of such powers, the mode of their exercise, and the effect of their exercise, both upon the state and third parties dealing with the-state. It is of the greatest importance that this distinction should be clearly discerned and held in mind. To possess and exercise authority to bind the state by the terms of an obligation newly created, implies a delegation of authority of a very high order, and generally esteemed of so much importance and delicacy as to-receive the special attention of the framers of the fundamental law, and to be guarded with very careful constitutional restrictions, while to effect a change in the form by which an obligation is evidenced that does not touch its nature or extent, is, when authorized, a mere act of administrative detail.

Let us trace these distinctions into the constitution. Section 7, Article IX., provides as follows: “ For the purpose off defraying extraordinary expenditures the state may contract public debts, but such debts shall ■ be authorized by law for some single object, to be distinctly specified therein, and no such law shall take effect until it shall have been passed by the vote of two-thirds of the.members of each branch of the general assembly, to be recorded by yeas and nays in the journal of each house,, respectively, and every such law shall levy a tax annually sufficient' to pay the annual interest of such debt.”

Here is a distinct negation to the state of power under the constitution to create public debts, except where that power is exercised for particular purposes and in a particular way, and it is off course a negation of the authority of any agent of the state to create such debts in a manner inconsistent with the provisions of the constitution.

Section 10 of Article IX. deals with the powers of evidencing existing obligations, including that of changing the forms of such evidence. It provides that no scrip, certificate or other evidence of real indebtedness shall be issued except for the redemption off stocks, bonds or other evidences of debt previously issued, or for such debts as are expressly authorized in the constitution.

In these provisions we have distinctly recognized the two^ classes of powers — the one capable by rightful exercise of bringing into existence a new specific obligation of the state, and the other of certifying in form a debt already existing. It is perfectly clear that the authority which the board attempted to exercise in the present case is that regulated by Section 10, and. not that treated of in Section 7.

Our attention has not been called to any act authorizing the financial board, or the officers composing that board, individually, to issue any bond, certificate or evidence of debt by way of changing the evidence of any antecedent debt of the state. After a careful examination of the acts I am unable to find any evidence that the governor, attorney-general and the treasurer possessed legal authority to exercise any such power, or even to act as a board under the name of the “financial board.” The only authority conferred upon them, so far as I am able to find, is ■contained in certain sections of acts authorizing the borrowing of money for particular objects. These powers relate exclusively to the particular cases in reference to which they were given. 14 Stat. 17, 18, 182. The only power conferred as it regards the loan for paying interest on the public debt is contained in the fifth section of that act, and is as follows, (14 Stat. 18): “That the bonds authorized by this act shall be sold at the highest market price, and for not less than a sum to be fixed by the governor, attorney-general and the treasurer, who are hereby ■authorized to appoint, under a commission signed by them, some responsible bank or banker in the city of New York, to be subject to their direction and control, and they are further authorized to pay such sums of money as may be necessary to effect the purposes of this act out of any funds of the state not otherwise appropriated.” This power is not in the least analogous to that attempted to be exercised and cannot include it.

The only power at all analogous to that in question was conferred in the particular case of the issue of bonds to redeem the bills receivable of the state and was confined to that object. That act (14 Stat. 17, § 5,) provides “that the bonds authorized by this act shall be sold at the highest market price by the financial agent of the state in the city of New York, and not less than for a sum to be fixed by the governor, attorney-general and treasurer, who shall fix the time of redemption and redeem said bills receivable at the office of the state treasurer, and they are further authorized to pay such sums of money as may be necessary to effect the purposes of this act out of any funds of the state not otherwise appropriated.” The powers here conferred on the persons who claimed to constitute the board are confined to the retirement of the bills receivable, and, being thus specially delegated, instead of supporting, contradicts the assumption that they had general powers of that nature, while the fact that no such power was conferred as it regards the class of bonds in question shows that it was not intended to be granted to be exercised in any form. Such powers as are claimed here nowhere appear granted either expressly or as incidents to other powers granted.

It will not be seriously contended that the governor, attorney-general and treasurer could, either singly or unitedly, assume to •change the form of an outstanding obligation of the state, in any respect, without the authority of the legislature therefor. It is apparent that the legislature, whose authority they claimed to exercise, took the same view of this question as that just expressed, for that body passed an act entitled “ An act to provide for the conversion of state securities,” March 23d, 1869, (14 Stat. 241,) which covered the exercise of the very power in question, namely, that of changing the form of existing obligations. This act allows bonds to be changed into stock and stock into bonds, but does not authorize any other change to be made in any evidence of indebtedness, and altogether ignores the existence of any authority of that description in the hands of the financial board or the officers composing it, though two of them, the governor and the treasurer, have duties to perform under this act.

It must be concluded that the governor, the attorney-general and the treasurer had no such authority, collectively or individually, as would enable them or either of them to put out an obligation for the redemption of an antecedent debt or obligation of this state, or in any way to change the form in which any such debt may be evidenced.

It is necessary to notice a view that has been strenuously urged, namely, that the action of the financial board must be referred to authority contained in the act under which the bonds in question purport to be issued, communicated to the governor, to issue as many bonds as he should at any time judge necessary, for the purpose of borrowing money sufficient to pay the interest on the public debt, provided he did not overstep the limit of the amount to be borrowed, namely, $1,000,000. This proposition has already been answered in part. It is clear that if the governor had such authority he has not attempted to exercise it. It assumes that the governor found that the proceeds of $1,000,000 of bonds was not sufficient to pay the outstanding interest on the public debt. There is not a particle of evidence that the governor ever arrived at any such conclusion or attempted to act upon it; on the contrary, the evidence shows that the governor was satisfied with the amount issued, and did not intend to give any authority to increase the sum to be borrowed beyond what was intended by the first issue. He attempted to change, in certain respects, the form of the security taken, but did not purpose to-borrow more money. This completely disposes of the argument. But, it is apparent, the governor had no such authority.

It is not necessary to contend that after the governor had once-made up his mind that a certain sum was necessary he could not afterwards increase that sum; but the proposition that disposes of the question is, that after he had fixed the whole amount to be raised and had actually issued it, the whole intention of the-act was carried out, and the authority it conferred spent. All the -act contemplated was that the governor should exercise a certain authority, based on his own judgment, of the extent to which that authority should go within a certain general limit.. After he had exercised his discretion, and had performed the act intended to be based upon it, what remained to accomplish the-full purpose of the act ? Possibly if an act conferring authority on a public officer, intended to meet the case of making provision against future contingencies, should be brought in question, its purposes, when rightly understood, might give rise to-the conclusion that it was intended as a continuing power. But here the matter to be ascertained by the governor was such as a sum in arithmetic would solve, and no ground is afforded by enlarging the sense of the words used by holding that it was-intended that the governor should have a continuing open judgment in the matter.

It is said that the amount that the bonds would bring on public sale was uncertain, and, therefore, the governor could not know until the sale was over how much money would be derived from the proceeds for the payment of interest. But the governor knew how much money had been realized when the further sale was stopped. The completion and termination of the issue, in view of the fact that in his judgment enough money had been raised for the purpose, was an exhaustive exercise of his power under the act. Had the issue been based on the actual amount needed, it would have been otherwise; but being based on the judgment of the governor as to what was needed, his final conclusion and action under it was a complete satisfaction of the purpose of the statute. The act contains no expression to signify that the act of borrowing or of issuing the bonds should be a continuous act, such as the phrase “ from time to time,” but authorizes what is described as a single act to be performed.

It is clear that parties having no legislative authority so to do have put in circulation evidences of indebtedness on the part of the state, and the holders of these evidences claim that they cannot be questioned as to their legal validity. A clearer case of the abuse of public authority cannot be stated, nor one that •defies more openly all the safeguards placed by the constitution around the creation of public debts.

The next question to be considered is as to the validity of the bonds issued under the act entitled “'An act to authorize a loan for the relief of the treasury,” passed February 17th, 1869, (14 ■Stat. 182.) It is objected to these bonds that the object of borrowing is not sanctioned by the provisions of the constitution on that subject. Article IX., Section 7, is the one that alone .afforded authority for the passage of the act. That section provides as follows: “ For the purpose of defraying extraordinary expenditures, the state may contract public debts; but such debts .shall be authorized by law for some single object, to be distinctly specified therein.” The remaining provisions relate to. the requirements for the purpose of giving validity to such an act, and are not in question here.

In the first place, this section must be regarded as a limitation of the power of the legislature to authorize the creation of debt by borrowing, of such a nature as to render any attempt to communicate authority for that purpose inconsistent with its provisions, abortive and inefficacious. Unless this section is powerless, this is its intended function. The use of prohibitory language is not indispensable in a provision of law in order to have that effect. When power is granted for the purpose of bringing into existence specific rights, the mode in which that power is required ■to be exercised is material to the creation of such rights, and the provisions are mandatory. State, ex rel. Attorney-General, v. City of Columbia.^* This principle depends on the nature of the powers granted, and is equally applicable to the construction of statutory and constitutional provisions. It follows that the legislature could only validly authorize the creation of public debt when the object was “defraying extraordinary expenditures.”

What are, then, to be regarded as extraordinary expenditures f If the verbal force of the expressions employed by the constitution was entitled to be solely considered, we should have to conclude from the third section of Article IX. that “ extraordinary expenditures ” were such as did not, in their nature, constitute the ordinary and current annual expenses of the state. It may be conceded that this view is included in the true construction of the language employed; but before all that may be embraced in the term “ extraordinary expenditures ” can be ascertained, a larger and vital principle of construction must be employed— one that is universally recognized among the canons of constitutional construction.

The necessities of a state may render the power of borrowing money indispensable even as to current expenditures, although, as an ordinary rule, the current expenses should be regulated from current income. War, domestic insurrection, pestilence and famine may be instanced as capable of giving rise to such an exigency as would warrant a departure from the safe, general rule of meeting current expenditures with current income. A constitution of government that cannot adjust itself to calamitous circumstances is of no practical value — as worthless as a man that cannot meet disease, or a ship that cannot endure a storm. No principle of construction that has the tendency to divest a constitution of government of the elacticity demanded for the reasonably-anticipated exigencies in human affairs, has the support of either principle or recognized authority. It must, therefore, be concluded fhat it is not impossible that what would generally be regarded as a current and ordinary expenditure may assume the character of an extraordinary expenditure under the influence of circumstances affecting the ability of the state to maintain itself.

Giving, then, to the act in question the benefit of this large and liberal construction, the question arises whether the act to-authorize a loan for the relief of the treasury can be regarded as passed with a view to meet extraordinary expenditures.

The contents of the act do not assist in making its object any clearer than it is made by the statement in the title of the act, "We must, then, inquire whether funds in relief of the treasury can be regarded as funds devoted to extraordinary expenditures. Clearly they cannot. The act would have undergone no material change in principle had its title been “ to provide the means of meeting all demands upon the treasury.” Such a title would include ordinary as well as extraordinary expenditures. As ordinary expenses are sure to arise, and extraordinary ones of merely contingent occurrence, such a title would have to be regarded as an indication of an intent to provide means to pay current and ordinary expenses. Such an act would be inconsistent with the constitution, and necessarily void. Thus, if we read the act as it stands, without the light of concurrent events,, the inference to be drawn would be against its validity.

It may be a question whether, in view of the provisions of the constitution, a case for determining the actual intent of the legislature could be made out from the knowledge of circumstances that attended the pássage of the act; but it is not necessary to consider this question, for the case affords no circumstances which,, if admissible, would tend to correct the inference drawn from the language of the title and the body of the act. It is true the state was emerging from a great and exhaustive war, and was seeking to adjust itself to a new and untried constitution of government, was putting in operation new machinery for collecting and applying income, and was with an empty treasury and burdened with debt, but the legislation contemporaneous with the act in question precludes the inference that any. exigency existed that would justify the borrowing of money in- aid of the current demands upon the treasury.

An elaborate and carefully prepared act, regulating the assessment and collection of taxes, was passed September 15th, 1868.. Under this act it became the duty of all persons liable to the payment of taxes to make returns on or before October 20th then ¡next ensuing. Each county auditor was required by Section 66 on or before the third Monday of December, 1868, and on the same day of each year thereafter, to transmit to the state auditor a transcript of the real estate of each township in his county. The taxes levied were to be payable on the first day of March thereafter. Sec. 79. The conclusion must be drawn from this act ¡that all the machinery requisite to the assessment and collection ■of taxes was in existence at the time the act was passed to borrow money for the relief of the treasury, and nothing necessarily prevented the passage of the necessary supply and appropriation ■bills at or before that date. A supply and appropriation act was passed March 23d, 1869, a few days over a month after the passage of the act to borrow money for the relief of the treasury. The authority for the disbursement from the treasury of all moneys applicable to the payment of current expenses, is contained in the appropriation act just referred to, and by the inspection of the provisions of that act it appears that the matters •included were of the class of ordinary expenses of the government. As we have seen, the proceeds derived under the act for the relief of the treasury were applicable to the payment of the appropriations made by this act, and thus we have clear ground for concluding that the object of the act for the relief of the treasury was to provide the means of paying the current and ordinary expenses of the government for the year 1869, and any deficiency that may have occurred for the fiscal year, or part of the year, of 1868.

The constitution (Article IX., Section 3,) requires “ that the general assembly should provide for an annual tax sufficient to ■defray the estimated expenses of the state for each year, and whenever it shall happen that such ordinary expenses of the state for any year shall exceed the income of the state for such year, the general assembly shall provide for levying a tax for the ensuing year sufficient, with other sources of income, to pay the deficiency of the preceding year, together with the estimated ■expenses of the ensuing year.” Here is a source made compulsory for meeting any deficiencies that might have stood from the fiscal year 1868, as well as the current expenses of 1869. As such an act appears in the statute book, it must be assumed to be sufficient for the purposes contemplated by the constitution. If it be conceded that, if the passage of such act or its enforcement had been rendered impossible, that money might have been borrowed on the idea that expenses usually to be regarded as “ ordinary ” had become “ extraordinary ” under the operation of uncontrollable circumstances, still that would not help the validation of the act in question, for it appears by contemporaneous legislation that no such fact existed.

The question, then, resolves itself to this: Could the general assembly, in any year, create a public debt by borrowing for the purpose of anticipating the taxes or other current revenues of that year ? To that question only one answer can be given, and that is that such a case is outside of the power to borrow money, and therefore within its implied inhibition.

It will not be necessary to examine the other objections made to this act, as the view considered is regarded as fatal to the validity of the bonds issued under it.

The next question to be considered is, whether the act entitled “ An act to reduce the volume of the public debt, and to provide for the payment of the same,” passed December 22d, 1873, (15 Stat 518), aud ordinarily known as the consolidation act, is a legislative contract, binding the state and all parties coming in under it, so as to preclude an inquiry into the validity of the securities issued under its provisions. This question resolves itself into two inquiries. First. Whether it was competent for the legislature, by any act, to impart validity to obligations that were rendered invalid under the constitution. Second. Whether the act in question purports to have any such effect. The first of these questions has been fully considered in the leading opinion in this case and needs no further elucidation. The question involving the character and intent of the act will be noticed.

The first section of the act authorizes the treasurer to receive from the holders of bonds of certain specified classes such bonds, and also certain certificates of stock, and directs that he “ shall thereupon, in exchange for and in lieu of such bonds and stocks so surrendered, issue to such holders other coupon bonds and certificates of stock, as they may desire, equal in amount to fifty per centum of the face value of the bonds or certificates of stock so surrendered.” A similar provision is made in Section 2 as it regards coupons from such bonds. Section 3 is as follows u That the bonds and certificates of stock herein authorized to be issued shall bear upon their face the words 1 consolidation bonds/ * certificates of stocks/ and shall also bear upon their face the declaration that the payment of the interest and redemption of the principal is secured by the levy of an annual tax of two (2) mills upon the dollar upon the entire taxable property of the state, which declaration shall be considered a contract entered into between the state and every holder of said bonds and stocks,” Ac. It must be conceded at once that wherever the holder of one of the valid obligations of the state surrendered the same, and took in lieu thereof the bonds or certificates of stock provided to be issued under this act, at fifty per cent, upon the face value of the obligation surrendered, this clause became-a binding legislative contract, based on an adequate consideration', namely, the surrender and relinquishment of one-half of the amount of such valid security, and, as such, the legislature has no power to dispense with it.

But the proposition here to be considered has regard to the surrender of obligations alleged to be unconstitutional and void. This act must be regarded as assuming the validity of all the bonds of the classes enumerated in it as the basis of the issue of new bonds, but not necessarily as declaring such validity. ' Had such a declaration been made, and not been left to implication, could it conclusively determine the existence of the fact declared ? If so, then it would follow that the act must be considered a conclusive legislative contract as it regards all bonds or certificates of stock issued in exchange for the-securities named in the first section, at the rate of reduction therein named. The bearing of this proposition is this: a legislative contract, like any Other contract, must be upon consideration ■ and if the existence of that consideration is validly declared by law, the obligation resting on it must stand.

At this point the proposition is advanced that the legislature cannot make a declaration that would have the effect to preclude inquiry into the constitutional character of its enactments. The application of the limitations of the constitution to the legislation passed under it is made by the courts, and if the nature of the limitation is such that it can only be tested by the existence of facts outside of the recitals of the acts themselves, the courts are bound to look to the existence of such facts as the ground of applying such constitutional limitations. To say, then, that the legislature may, in such a case, by a declaration, preclude the courts from examining the actual state of the facts, is to affirm that this authority and duty of the courts is not absolute under 'the constitution, but dependent on the will of the legislature — a proposition manifestly false. The consequence is, that neither an,express or implied declaration that an obligation otherwise void is valid, can preclude inquiry into the validity of such obligation where it is alleged as a valid consideration for a legislative promise based upon it.

It is, therefore, necessary to inquire whether there was, in fact, any consideration in the case of a party giving up an invalid bond and taking another of less amount. The proposition answers itself. If the obligation was void nothing was given up, and therefore no consideration exists. As the legislature could not validly declare that to be lawful which the constitution pronounced unlawful, and as the act does not declare the validity of all the bonds, for which provision is made in express terms, whatever declaration is read in the act on that subject must be the result of implication, and as the rules of implication are based on the primary idea that that sense which is agreeable, to law must be preferred, the most that can be concluded from the act is that it assumed the validity of the unenumerated bonds provided for. This assumption being disputable under the constitution, it placed the holder of the bond in the position of taking the chances -of the correctness of the assumption in his favor, but gave him no higher assurance nor ground of certainty. When it is asserted that this legislative assumption gave the holder of a bond a presumptively good title, all the efficacy has been allowed to the statute as affecting him that can be. allowed consistently with the constitution, or that construction of the intent of the statute which results from viewing it in the light in which the constitution has placed it. That presumption is repelled the moment it appears by sufficient evidence that the obligation was, in fact, unconstitutional and void. This principle of construction was applied in Neely v. McFadden, 2 S. C. 169.

An attempt is made to meet the force of this argument by treating the consolidation act as a composition between a debtor and his creditors. It is claimed that the creditors of the state are to be regarded as parties to each transaction with any bondholder of the class provided for. In this way an attempt is made to make out a consideration in favor of A, arising from the fact that B took a less amount than was due to him. The answer to this is that the act exhibits no such character, either in form or substance. As it regards the force of the provisions made, they are, professedly, with each individual holder of a bond, coupon or certificate of stock alone. The test of this is the fact that had but a single person accepted the benefits of the act and complied with its provisions, there is no clause or condition that could have interfered with its entire efficacy as affecting him. It was not made a necessary feature of the scheme that all or any particular part of the persons for whose benefit it was intended should come in under it. Such being the case, it was competent, so far as the form of the transaction is concerned, that it should operate wholly with particular individuals, and should not depend for its validity on its acceptance by. any number or class of individuals. If, then, it can, consistently with the language and terms employed, have such operation and effect, it ought to receive that construction, if it be found equally consistent with the spirit and fundamental intention of the act. This brings us to consider what was the true character of the transaction in its substance.

Conceding that if it be found that the act could not operate efficiently according to its intention, except by construing it as intending a compact among all who came in under it of such a nature that its considerations and obligations are mutual, as among all such parties — that in that case it might assume the character contended for — what is there to lead to any such conclusion ? And here we may affirm that that is an unnecessary construction, not called for by the necessities of the case, having only one argument, and that an unsound one, in its favor, namely, that it enables the parties to effect a successful evasion of the constitution and defeat its provisions. In itself, that argument should be ground for avoiding the conclusion to which it points. There is no other argument that has been, and it may confidently be asserted that none can be, adduced to support the view thus contended for. If, for instance, the act had been so framed that it could not take effect until all of a certain class or number came in, this then would be ground to contend that inducements would be offered by those anxious to come in to those opposed to or indifferent to that course to bring about that result, and in that case mutual consideration as among those thus coming in might be supposed. That, however, is not the case. Then, again, if the state had set apart a certain fund or sum of money to be divided up among all who should come in, the distribution of that fund to be at the disposal of the parties coming in, then mutual obligations and considerations among the parties coming by mutual consent upon such fund would be naturally and reasonably assumed • but the transaction did not have that character. The fact that the state offered to pay a sum less than the amount due on such debt does not alter the case, for such a tender could as well be made to A, B and C individually as collectively. It cannot be shown that anything was given up by a ■creditor that was intended to enure to the benefit of any other; on the contrary, all were treated alike, the same rate of reduction being applied to all, whether their demands were large or small. There is a total failure in the case to show any reason drawn from the nature of the transaction, and the terms and intention of the act to change that simple character that stands out on the face of the act into the more complex and cumbersome one contended for. This conclusion rests upon the simple proposition that one who parted with a good obligation gave a valid consideration "to support the legislative contract imported by the terms of the act, while one who gave up a void and worthless bond gave no such consideration. The opposite construction rests upon the inadmissible proposition that A in giving up a worthless bond was in a worse position by reason of the fact that B had given up a good bond for less than its value.

It is clear, therefore, that there is no legislative contract founded on consideration to support the validity of any bond issued under the consolidation act, when the security for which it was issued was invalid in law.

There is no necessity for considering the limits of the authority of the legislature to ascertain or liquidate an uncertain or doubtful debt, as no such power was exercised in the consolidation act. . The act sets out with no declarations that depend for their force on the assent of the parties coming in under it, and it affords no ground for an assumption that anything the act dealt with was regarded as unliquidated or disputable. It is-very clear that whatever power the legislature possesses of the class just mentioned, its rightful exercise does not extend to a declaration that that is valid which the constitution declares to-be otherwise.

The conclusións to which, the court has arrived are not in conflict with anything decided in Martin v. Comptroller-General, 4 S. C. 430. The questions just considered were not raised or considered in that case.

* See post case No. 762.

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Dissenting Opinion

Haskell, A. J.,

dissenting. Concurring in the result, so far as it affects other classes of vouchers, I dissent from the reasoning and the conclusion by which the “ second issue of bonds to pay interest on the public debt,” (August 26th, 1868,) and “bonds for the relief of the treasury,” (February 17th, 1869,) are excluded from the operation of the consolidation act.

Some reasons for such dissent will be briefly stated.

The act of August 26th, 1868, 14 Stat. 18, clothed the-governor with power to borrow money for the state by issuing bonds, and prescribed two limitations. First, relating to amount y Second, to time. It is not pretended that either of these restrictions was violated; but it is contended that the governor was, by the act, impliedly restrained from making more than a single issue. The act is, itself, very brief, and it is difficult, within the widest scope of its language, to find support for such a proposition.

But however interesting might be questions as to exhaustion of power by a single exercise of it, or as to the right of the general assembly, without a two-thirds vote, to extend the time for the exercise of a power conferred in an act creating a public debt, or what disaster might result if the legislative body should authorize the executive to make successive issues of bonds at his discretion, to borrow money to a limited extent — however interesting in themselves — such questions do not properly arise in this^ case. For, so far as rights arising under the operation of the consolidation act are concerned, such objections are disposed of by the act itself, enacted as it was under the full light of the judicial determinations announced in the ease of Morton, Bliss & Co., 4 8. C. 430. The ruling of the court on the point referred to, is thus succinctly stated in the heading to the case as reported: “ Where an act to create a, public debt, by a loan on bonds of the state, is passed in the mode prescribed by the constitution of the state, but some requirement of the act — as, for instance, that the bonds shall be sold at the highest market price — is not complied with by the officer charged with its execution, it is competent for the legislature by an- act, not passed by the vote of two-thirds of the members of each house, to waive the objection and validate the bonds.”

The consequence is plain, for the officer is the mere agent of the general assembly, and the principal may waive objections to the irregularities of his agent, and, by recognition or other conduct, as well as by direct ratification, may validate his transactions. The Supreme Court having decided that a two-thirds vote was not necessary, the act of March 20th, 1869, to extend the time to make the issue, is of force. The consolidation act likewise, although not passed by the two-thirds vote, is of full force and effect so far as it has any relation to irregularities on the part of the agents employed by the legislature to issue the bonds therein named. Anterior to the passage of this act the “ first ” and “ second issue ” had been completed — the second in part canceling the first, and leaving outstanding from both issues $1,197,000 in bonds. The general assembly recognizes the amount and specifies it, and orders it to be treated as an existing debt of the state, under and by virtue of the act creating the debt, and, waiving any and all objections for irregularities or lack of authority on the part of its agent, ratifies and confirms his acts. This point involves no constitutional question, for that, whether rightfully or not, was settled when the act was passed, but depends solely upon the law of recognition by the principal of the acts of his agent, and the ratification of them by such recognition. The recognition exceeds mere acquiescence in this case, and amounts to active confirmation, for the legislature rests a new contract upon the bonds thus recognized.

The objection to the other class of bonds “ for the relief of the treasury ” rests upon constitutional grounds, and as to them the recognition by the general assembly does not, for the same reasons above stated, remove the defect, if such there be.

The first ground is that the loan was not “ to defray extraordinary expenditures. Const., Art. IX., § 7.

Money to be expended for the “ relief of the treasury ” certainly does not come within the “ ordinary ” expenses as defined by the constitution. That instrument carefully defines the “ ordinary,” and leaves to the word “ extraordinary ” every expenditure which does not come within the limits of the former. That is the sole question for the judiciary to consider; for if the expenditure be “ extraordinary ” in its nature, the general assembly, by the vote required by the constitution, has the power to create a debt by bonds to defray it. And it cannot for a moment be claimed that money for the relief of the treasury comes among “ ordinary ” expenses, which are otherwise directly provided for by the constitution.

It is quite immaterial that the court is not able to perceive what relief the treasury might require or the reasonableness of the expenditure. Those are matters left to the discretion of the general assembly. Luther v. Borden, 7 How. 45. But if that were a question within the jurisdiction, some light might be thrown upon it by the ordinance adopted January 29th, 1868, to levy a special tax and for other purposes, among which are drafts upon the treasury, with directions to the general assembly to raise funds, if necessary, to reimburse the treasury.

The other objection is that the debt is not for some single object distinctly specified. In obedience to another provision in the constitution, the “subject,” or “object,” (for the words are synonyms in the sense in which they are there employed,) is distinctly stated in the title to the act, which is confined to the “subject” expressed in the title. Art. II, § 20. The act to borrow moTiey to pay the interest on the public debt is subject to the same objection, for its object is contained in the title, but, according to the decision in this case, comprehends, by implication, (1) the interest accruing at a particular time, and (2) interest on a great variety of classes of public indebtedness. I wish no more than the application of the same rule.

The annual tax act seldom specifies more than the general purposes, but leaves the details to the appropriation act; yet the validity of such an act could not for a moment be questioned. The general assembly could, by a simultaneous or subsequént act, have made a detailed application of the money borrowed on the bonds issued by the act in question, and, while the propriety of the application might have been a question, the validity of the original act thus explained would hardly have been assailed by the most litigious mind. But that is a question resting with the legislative body, and not the judicial, and the public must not be made to suffer for what thus rests on discretion, and may be done after as well as before or together with the transaction out of which the contract arises.

For the reasons thus briefly and imperfectly presented, I dissent on the points indicated.

As regards the legal effect of the consolidation act, as a compromise or otherwise, I make no comment, since it has not been in that light discussed by the majority of the court. Nor do I discuss the effect of the various acts which are alleged as acquiescence on the part of the state, reserving to myself the right hereafter to express my views on these points, if, after further reflection, I should deem it necessary or proper.

Judgment set aside.