Evans v. Tillman , 38 S.C. 238 ( 1893 )

The following order was filed:

This is an application addressed to the court in the exercise of its original jurisdiction, for an injunction to restrain the defendants from entering into a contract for the sale of the 41 per cent, bonds of this State (a copy of which contract is appended to the proceedings in this case), upon the ground that such a proposed contract is not authorized by the terms of “au act to provide for the redemption of that part of the State debt known as the brown consol bonds and stock by issue of other bonds and stock,” approved 22d day of December, A. D. 1892.

In the judgment of the majority of this court, based upon the consideration of the several sections of the act in question, the contract is not in excess of the power given the defendants by the said act when its provisions are construed together, and hence there is no ground for the injunction prayed for.

It is, therefore, ordered, that the prayer of the petitioner be refused, and the petition be dismissed.

An opportunity at an early day will be used to prepare and file an opinion stating more at large the reasons influencing the judgment of a majority of this court in rendering this conclusion. S. McGowan, A. J.

Y. J. Pope, A. J.

I regret very much indeed to say that I am unable to concur in the conclusion reached by a majority of this court, and will take the earliest opportunity which the pressure of official duties will permit, to give in writing the grounds upon which my dissent is based. Henry McIver, O. J.

The opinion of the court was delivered by

Me. Justice McGowan.

This was a sworn petition filed in the original jurisdiction of this court by John Gary Evans, stating that he is a citizen and taxpayer of the State of South Carolina, and that B. E. Tillman is governor and William T. C. Bates treasurer of said State, respectively.

2. That at the last session of the legislature of said State, an act was passed, entitled “An act to provide for the redemption of that part of the State debt known as the brown consol bonds and stocks, by issue of other bonds and stocks.” That among other and various provisions, section 6 of said act reads as follows: “That the governor and State treasurer are hereby authorized and instructed to sell the issue of bonds herein provided for at not less than par or face value, and the iiroceeds thereof shall be applied to the payment of the consolidated bonds and certificates of stocks, commonly called brown con-sols, and to no other purpose.” See act of 1892, 21 Stat., 24.

3. That your petitioner has been informed by the governor and treasurer aforesaid, and he believes the same to be true, that they have entered into, or are about to enter into, a contract with parties unknown to petitioner, which contains, among other stipulations, the following, to wit: “The said bonds and stocks so purchased shall bear date January 1, 1893, and shall carry interest from January 1, 1893,. payable semiannually. They shall be sold by the parties of the first part, and purchased by the party of the second part, at par flat— that is to say, nothing additional shall be paid for any interest which may have accrued at the time of delivery,” &c. (See copy of contract in the record.)¹

4. That deponent is informed that said contract is without authority of law, as provided in the act aforesaid, in that the governor and treasurer are not authorized, under the terms of said act, permitting said bonds to be sold at par or “face value,” to sell the same for less than principal and accrued interest.

Wherefore petitioner prays that a writ of this court do issue, requiring the said B. B. Tillman, governor, and W. T. C. Bates, treasurer, as aforesaid, to appear and show cause why they should not be perpetually enjoined, &c.

The parties were summoned before the court, and made return, admitting the material facts, but demurring that the allegations were not sufficient to authorize the court to grant the injunction prayed for.

1 The State, in her sovereign capacity, is not complaining, but a taxpayer, who alleges that the aforesaid agents of the State are about to exceed the powers granted to them by the act referred to. No other point was suggested or argued. When an agency is created by a written instrument, and grows wholly out of it, the nature and extent of the authority must be ascertained from the instrument itself. Here the principal is the State of South Carolina, and the act of the legislature is, as it were, the power of attorney. In giving interpretation to the refunding act, consisting as it does of many various provisions in the same act, and upon the same general subject, they must all, as far as practicable, be construed together, in order to ascertain the intention, which must control. In his interpretation of statutes, section 35, Mr. Endlich says: “It is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself. A survey of the entire statute is almost always indispensable, even when the words are the plainest, for the true meaning of every passage is that which best harmonizes with the subject and with every other passage of the act.”

2 In the effort to reach the true construction of the redemption act, the date is not without significance. It was ratified and became a law on December 22,1892, only ten days before January 1, 1893. At that time it could not be foreseen when the redemption could be effected. It might be immediately, and in that case there would be no interest, as the bonds by the act itself were to bear interest only from “their issue.” This was the situation when the act passed, containing the words “face value” of the bonds, and the question now is, what the framers of the act intended by the expression? As I understand it, that question in fairness must be determined, not by constructions which may have been given elsewhere, and under different circumstances, but by the redemption act itself, which considered as a whole is the law of the case. Thus considered, it is suggested with some confidence that the expression “face value” was used in this act to express the idea of denomination, the amount, printed on the face of the bonds referred to.

The precise expression “face value” occurs five times in the act — twice in section 1, and in sections 6, 8, and 15. (1) In the first part of the first section, where direction is given as to the number of blank bonds to be prepared in order to cover the whole issue, it reads: “shall cause to be prepared a sufficiency * * * as will provide for a total issue of an amount (face value) in the aggregate,” &e. (2) And in further directing as to the character of the new bonds, the latter part of the same section proceeds as follows: “said bonds to be of the denominations of $500 and $1,000, and said certificates of stock to have their respective ‘face values’ left blank, so that the same may be filled as may be most convenient,” &e. Now we suppose that there can not be the least doubt, that in both these instances ‘ ‘face value” meant the arithmetical number printed on the face of the bonds and certificates, and nothing else.

Section 15 provides: “That the holders of the South Carolina . four per cent, bonds, issued for the redemption of the brown consols, shall have the right to surrender the said four per ceut. bonds to the State treasurer, and to receive in exchange therefor brown 4-} per cent, bonds of equal ‘face value’ as provided for in this act.-” This reference can not be to section 6 of the act, which makes no allusion to the exchange of bonds; but it doubtless refers back to section 8, which does provide for the exchange of the 41 per cent, bonds, and in doing so is still more explicit as to the sense in which “/ace value” is used. It is as follows: “That the State treasurer be, and he is hereby, authorized and required to receive from the purchaser of the 41- per cent, bonds, who may surrender before the first day of July, 1893, all coupon bonds and all certificates of stock, commonly known as ‘brown consols,’ tendered by them, and shall thereupon, in exchange for, and in lieu of, said bonds and certificates of stock so surrendered, issue to said holders other coupon bonds and certificates of stock of equal ‘face valué with those so surrendered, and of the kind, class, and description, the issue of which is provided for in this act. Or the said treasurer may issue to such holders as may require it, all bonds or all stocks, or part bonds and part stocks, of said authorized issue in making such exchange; and further, at the time of such surrender and exchange, the said treasurer shall pay to the holder of said bonds and certificates of stock (i. e.'),' the purchaser of the new 4] bonds in cash, the difference in interest from the date of exchange or from the last interest period, to wit, January, 1893, up to and including the maturity of said bonds and stocks, that is to say, 11 per cent, per annum interest,” &c.

The foregoing section is part and parcel of the redemption act itself, and it will be observed that the identical phrase, “face value,” recurs again, in the sense that the bonds referred to are ready for exchange when they are of ‘ ‘the same Mnd, class, and description,” without any reference to interest in arrear, except to make provision at once for its payment in cash. It is true, that the two last two sections referred to are dealing with exchanges, and not sales of bonds; but it must be kept in mind that the purpose is merely to ascertain the sense in which the words “face value” were used in the different provisions of the act, and, for that purpose alone, there is no reason why reference may not be made to such sections, as well, if not with better success, than to any other. This repeated and reiterated use of the identical words, under the different circumstances described, would seem to be a direct declaration, or, indeed, definition, of its true intent and meaning, wherever found in the act; especially as there is another rule of interpretation, which declares that “words are presumed to be used in the same sense throughout a statute,” &c.

But, be that as it may, it is certain that we must take the redemption act as we find it, which was manifestly passed for the purpose of effecting a speedy funding of the debt; and the consideration of its different provisions together shows the true intention, which must prevail, and discloses the unmistakable fact that the largest discretionary powers were granted to the agents, who were entrusted with the conduct of the business, including “authority,” in order to have the bonds promptly placed, to offer and pay a commission to parties placing them, which is practically without limit.

After as careful consideration as was allowed by the press of business, it seems to me that, inasmuch as the various provisions of the redemption act indicate that the legislature intended to confer large powers and wide discretion upon its agents, chosen to carry out its provisions, we can not, in a matter of such gravity, say that a case has been made for a perpetual injunction. And, as that was the only matter submitted, of course nothing beyond it is considered.

An order refusing the injunction has already been filed.

Me. Justice Pope concurred.

1 Also fully stated in the dissenting opinion of the Chief Justice.